Photographer
jimmi L
Posts: 557
Bellefonte, Pennsylvania, US
I admit that I do not know a lot about 'tests' and I hope some experienced photographers contribute their thoughts here.
I suppose I feel that, if a person signs a release and gets paid for a session, that little else matters and that the photographer has a right to sell the images. But again, I am not familiar with these types of situations. My initial thought is that she thinks $400 isn't enough for pics that ended up having so much exposure, but I could be mistaken.
Photographer
Abbitt Photography
Posts: 13564
Washington, Utah, US
It's hard to know all the relevant details from the article, (such as the exact wording of the release) but at first glance it doesn't look to me like she has much of a case. She admits she signed the release, but apparently didn't read it at the time. Later she states that she doesn't think it's valid, because it doesn't specifically mention Di Modolo, but it's not at all uncommon for releases to not mention the specific end user.
It seems to me, that the lesson here is to either read the release or accept that it's probably a "full release", allowing images to used for just about anything. I agree with the above post, that the real issue probably isn't the release, but that given the end use, she wants more than the $400 agreed to.
It certainly wouldn't surprise me if there's some settlement so as to avoid the legal costs of a defense.
Photographer
Rays Fine Art
Posts: 7504
New York, New York, US
[My take. FWIW, is that $400. actually is an in-line (perhaps even generous) fee for a non-agency model for unlimited usage. And if she is in a non-exclusive agency arrangement, she's still non-agency for anything done outside that agreement. (And if she's exclusive with anyone, she's bought herself a peck of trouble worth a good deal more than the additional $320 she's seeking.) Whether she learns anything about reading before signing is likely to be of no consequence for quite a while because she's not likely to be on the preferred list for anyone who's seen the story. Potentially a very expensive 15 minutes of fame for her. EDIT: That number is $320,000-not $320. Sorry for the error.] I agree that it will probably be settled. [EDITED] If it ever went to court, and if what she signed was indeed a general release that included unlimited usage (likely, otherwise why would the agency have asked her to sign it?) then the wording of the release itself would have constituted the information she's saying she was never given. [EDITED] A couple of lessons to be learned here: 1- Learn about releases and usage agreements. They're not the same and there's very little that's "standard" about them since the laws governing them vary from state to state and country to country. Here are 1000 MM citations from the forums that deal, one way or the other, with releases and/or usage agreements: https://www.sendu.me.uk/modelmayhem/?te … rt_order=0 to get started with. 2- Leave the law to the lawyers, not family, friends, MM members or yourself. None of them is sufficiently knowledgeable and objective to advise you. We can at least hope that a lawyer will be. 3- Never assume. Always understand exactly what you're being asked to do or to sign. If you don't understand, don't! 4- And most important of all, don't sign anything without first reading and understanding it. All IMHO as always, of course.
Photographer
ontherocks
Posts: 23575
Salem, Oregon, US
i guess it all depends on what the release says and whether a judge would consider it legal/binding.
and maybe in hindsight she should have asked some questions before signing that release.
but this could be more of an attempt at re-negotiation than anything else.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Rays Fine Art wrote:
The amount isn't worth fighting over for either side Unless I read it wrong, she is asking for $720,000. That doesn't seem like a trivial amount.
I don't have enough information to form an opinion, but it concerns me that she signed a release. It concerns me that her agency gave her a release to sign when she was paid just $400 for what she thought was a test. It concerns me that the release was broad but she doesn't think it has validity.
I haven't read the release nor do I know the remainder of the evidence. I think this will be an interesting case, particularly since it is in New York. We'll have to wait and see how it shakes out. I am not predicting the outcome. I am sure she has a good lawyer.
Photographer
Lars R Peterson
Posts: 1085
Seattle, Washington, US
GPS Studio Services wrote:
Unless I read it wrong, she is asking for $720,000. That doesn't seem like a trivial amount.
... LOL
She must think she is pretty special.
Photographer
Rays Fine Art
Posts: 7504
New York, New York, US
GPS Studio Services wrote:
Unless I read it wrong, she is asking for $720,000. That doesn't seem like a trivial amount.
I don't have enough information to form an opinion, but it concerns me that she signed a release. It concerns me that her agency gave her a release to sign when she was paid just $400 for what she thought was a test. It concerns me that the release was broad but she doesn't think it has validity.
I haven't read the release nor do I know the remainder of the evidence. I think this will be an interesting case, particularly since it is in New York. We'll have to wait and see how it shakes out. I am not predicting the outcome. I am sure she has a good lawyer. OOPS!!!! Damn those speed reading courses! That also changes my evaluation of the level of her legal advice.
And I may have misread again, but I was under the impression that the agency in question is Ana Martins Public Relations, not the model's agency.
Photographer
FlirtynFun Photography
Posts: 13926
Houston, Texas, US
Personally I find the fact that she signed a release without really reading it pretty telling. Not justifying a low pay of $400...but she's been a celebrity long enough to have a lawyer...you'd figure this same lawyer or her agent would give her some basic advise about signing her name to legal documents.
Stupidity at its finest in my opinion.
Photographer
BeautybyGod
Posts: 3078
Los Angeles, California, US
there may be other articles that describe the situation a bit more accurately. "A model who’s appeared on the TV show “Gossip Girls” says a major international jeweler took advantage of her naïveté by paying her peanuts for a national ad campaign, according to a new lawsuit." http://nypost.com/2013/10/10/model-suck … -400-suit/ it kinda sounds like a con to me, too. the issue might not even be the release, but i would think there's the real possibility her agency could be on the hook for helping scam, or shortchange, the girl. conflict of interest, or dereliction of duty or whatever like that. GPS Studio Services wrote:
It concerns me that her agency gave her a release to sign when she was paid just $400 for what she thought was a test. +1
Photographer
Looknsee Photography
Posts: 26342
Portland, Oregon, US
Well, it'll be interesting to watch, but I am not aware that the photographer has to disclose specific usages when the model signs the model release. Indeed, the photographer might not even know what future usages will be available.
But I am one of those photographers who generally don't make an exposure without having a signed model release first.
Photographer
BeautybyGod
Posts: 3078
Los Angeles, California, US
Looknsee Photography wrote:
Well, it'll be interesting to watch, but I am not aware that the photographer has to disclose specific usages when the model signs the model release. Indeed, the photographer might not even know what future usages will be available. one article says a release was signed days after the shoot.
"Velon said she was paid on the spot — $400 cash — for the test shot, and five days later, when the Ana Martins' agency asked her to sign a release, she did so thinking that she was merely giving the agency permission to show her photo around."
It kinda makes you wonder why she was even paid the day of the shoot.
Model
K I C K H A M
Posts: 14689
Los Angeles, California, US
BeautybyGod wrote:
one article says a release was signed days after the shoot.
"Velon said she was paid on the spot — $400 cash — for the test shot, and five days later, when the Ana Martins' agency asked her to sign a release, she did so thinking that she was merely giving the agency permission to show her photo around."
It kinda makes you wonder why she was even paid the day of the shoot. Wow, that's really bizarre.
Yeah, if I do a paid test, my agency won't have me sign such a usage agreement.
I tend to avoid this trouble by reading the papers I sign.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
K I C K H A M wrote:
Wow, that's really bizarre.
Yeah, if I do a paid test, my agency won't have me sign such a usage agreement.
I tend to avoid this trouble by reading the papers I sign. It's not actually bizarre at all.
You may not realise it, or even if you do, then, want to admit it [to yourself?], but it is entirely likely that if you are "signed" to an agency under more or less standard industry arrangements and agreements, the agent / agency will have your power of attorney and can release your images on their own even without your explicit advance knowledge. You, personally, do not have to sign anything - you will have given the agency the authority to do it for you. They have other obligations in law to deal fairly with you and on your behalf as a go-between, but they DO have the power to negotiate everything as to payment -AND- to release the usage of images.
As to the issue some here seem to have with the fact that the release was signed days later. Well, a release can be signed YEARS later if necessary. That time interval is of absolutely no importance at all.
Studio36
Photographer
Rays Fine Art
Posts: 7504
New York, New York, US
studio36uk wrote:
It's not actually bizarre at all.
You may not realise it, or even if you do, then, want to admit it [to yourself?], but it is entirely likely that if you are "signed" to an agency under more or less standard industry arrangements and agreements, the agent / agency will have your power of attorney and can release your images on their own even without your explicit advance knowledge. You, personally, do not have to sign anything - you will have given the agency the authority to do it for you. They have other obligations in law to deal fairly with you and on your behalf as a go-between, but they DO have the power to negotiate everything as to payment -AND- to release the usage of images.
As to the issue some here seem to have with the fact that the release was signed days later. Well, a release can be signed YEARS later if necessary. That time interval is of absolutely no importance at all.
Studio36 But we don't know at this point if the young woman is "signed" to any modeling agency or if she is, whether or not it's an exclusive agency agreement. She may well have only a talent agent who does not represent her for modeling. It's not unusual. If she is signed exclusive with any agency there may yet be another bizarre twist here. I would think that if she does win a massive judgement or settlement, that agency may well have an action against her for breach of contract and try to collect the commission they would have earned by negotiating the deal.
Again, everyone here seems to be assuming that Ana Martins is her modeling agency. Actually they're a public relations/communications firm (Their "About Us" page: http://anamartinscommunications.com/about-us/) and as such were representing the ultimate client, not her. So her argument that she signed the release "thinking that she was merely giving the agency permission to show her photo around." is specious at best.
All IMHO as always.
Photographer
BeautybyGod
Posts: 3078
Los Angeles, California, US
Rays Fine Art wrote:
Again, everyone here seems to be assuming that Ana Martins is her modeling agency. Actually they're a public relations/communications firm (Their "About Us" page: http://anamartinscommunications.com/about-us/) and as such were representing the ultimate client, not her. So her argument that she signed the release "thinking that she was merely giving the agency permission to show her photo around." is specious at best. in one article it says 'her agency'.
double-dipping con, it sounds like.  if i was them i wouldn't want this to drag on too far.
of course we are all counting on news articles for the facts. lol so who knows.
Photographer
R Michael Walker
Posts: 11987
Costa Mesa, California, US
$400 cash..wonder if she reported it to the IRS? either way, they sure know about it now! And the bit about models not being taken seriously as actors..this one has been on "Gossip Girl" as her main credit, at least in the 2 news stories linked here. Wonder what her role was there? Anyone know her? I'd think a lot of giant billboards carrying her image would be great publicity. Seems if she was scammed it was by her publicity company. But then again, they DID get her publicity. I am only worried about the signed release being contested because she feels she is owed more. And I've been out of the commercial world for some time but is it standard to pay a commercial model anything for a test? Yet she got $400 and was happy with that. It will be interesting to see how this plays out but more than likely SHE just shot her career in the ass so she better ask for enough money to augment that minimum wage job she is likely heading for now...unless of course she can parley this into a set of speaking engagements and tabloid interviews. But what IS the shelf life of a gossip girl?
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
K I C K H A M wrote:
Wow, that's really bizarre.
Yeah, if I do a paid test, my agency won't have me sign such a usage agreement.
I tend to avoid this trouble by reading the papers I sign. studio36uk wrote:
It's not actually bizarre at all.
You may not realise it, or even if you do, then, want to admit it [to yourself?], but it is entirely likely that if you are "signed" to an agency under more or less standard industry arrangements and agreements, the agent / agency will have your power of attorney and can release your images on their own even without your explicit advance knowledge. You, personally, do not have to sign anything - you will have given the agency the authority to do it for you. They have other obligations in law to deal fairly with you and on your behalf as a go-between, but they DO have the power to negotiate everything as to payment -AND- to release the usage of images.
As to the issue some here seem to have with the fact that the release was signed days later. Well, a release can be signed YEARS later if necessary. That time interval is of absolutely no importance at all.
Studio36 Except that it doesn't appear that the agency issued the release, instead it looks like they asked her to sign a release. She probably trusted the agency, but the fact is that she it looks like she signed it herself.
I think this is going to be less than a simple case.
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
This is ridiculous.
She signed (apparently) a general release (her statements about broad kitchen sink language). There is no requirement for specific end-usage to be in a release. Silly model.
The only mitigator I can possibly see, is if they stuck the release quickly in front of her to sign while blatantly misrepresenting verbally what the release covered or blatantly misrepresented the meaning of verbiage on the release when she asked to have it explained before signing. But still, she shouldn't be signing documents without reading them and understanding basically what they mean. A model that doesn't understand that a typical release, basically waives her involvement in the images going forward is asking for this kind of uninformed nonsense.
Lesson for her.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
JONATHAN RICHARD wrote:
Model Stella Velon sues for usage damages I have noticed that you have posted the same title "usage damages" in a couple of threads today. First, the point of your post is well taken. It is good that you are posting the link. It is a good article.
I do want to correct your language though. It isn't "usage damages" that she is suing for. It is a "Misappropriation of name or likeness." It is a very specific tort that goes to the right to privacy. There is also the right to publicity, but in NY the right to publicity is protected through the right to privacy (CRC 50/51).
Anyhow, using the word "usage" suggest that it is a copyright issue, which it is not. I know it is nitpicking, just a little bit, but if we are going to discuss these things, we should refer to them correctly.
Thanks for the good post though. It has led to a great discussion.
Photographer
Virtual Studio
Posts: 6725
Toronto, Ontario, Canada
Swiecicki Fotografia wrote:
its happened before and model has been rewarded handsomely by the courts..
a very similar example: http://blogs.wsj.com/law/2009/08/17/a-m … a-lawsuit/
there are a few other examples that come to mind, but have no desire to find the cases.. Case couldn't be more different!
The case you cite is a specific breeach of a well defined obligation in a contract.
Not the same thing at all!
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Swiecicki Fotografia wrote:
its happened before and model has been rewarded handsomely by the courts..
a very similar example: http://blogs.wsj.com/law/2009/08/17/a-m … a-lawsuit/
there are a few other examples that come to mind, but have no desire to find the cases.. Virtual Studio wrote:
Case couldn't be more different!
The case you cite is a specific breeach of a well defined obligation in a contract.
Not the same thing at all! Whenever there is a right to publicity case, someone always cites the coffee. I agree with you, it has nothing to do with what we are talking about here.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
J O H N A L L A N wrote:
This is ridiculous.
She signed (apparently) a general release (her statements about broad kitchen sink language). There is no requirement for specific end-usage to be in a release. Silly model.
The only mitigator I can possibly see, is if they stuck the release quickly in front of her to sign while blatantly misrepresenting verbally what the release covered or blatantly misrepresented the meaning of verbiage on the release when she asked to have it explained before signing. But still, she shouldn't be signing documents without reading them and understanding basically what they mean. A model that doesn't understand that a typical release, basically waives her involvement in the images going forward is asking for this kind of uninformed nonsense.
Lesson for her. The problem is that we don't know all the facts. Obviously she has a good lawyer. He is seeing, reading and hearing a lot more than we have. She may win or lose, but obviously her attorney thinks she has a cause of action. We'll find out in due course.
Photographer
Virtual Studio
Posts: 6725
Toronto, Ontario, Canada
GPS Studio Services wrote:
The problem is that we don't know all the facts. Obviously she has a good lawyer. He is seeing, reading and hearing a lot more than we have. She may win or lose, but obviously her attorney thinks she has a cause of action. We'll find out in due course. Or a bad one on contingency fee...
If you're hoping to get 20% of $700k+ then it's worth a punt I guess.
Heck - if she "only" gets $10k "go away" money then the lawyer will get $2k. That's worth a days speculative work.
Photographer
BeautybyGod
Posts: 3078
Los Angeles, California, US
10th try... J O H N A L L A N wrote:
This is ridiculous.
She signed (apparently) a general release (her statements about broad kitchen sink language). There is no requirement for specific end-usage to be in a release. Silly model.
The only mitigator I can possibly see, is if they stuck the release quickly in front of her to sign while blatantly misrepresenting verbally what the release covered or blatantly misrepresented the meaning of verbiage on the release when she asked to have it explained before signing. But still, she shouldn't be signing documents without reading them and understanding basically what they mean. A model that doesn't understand that a typical release, basically waives her involvement in the images going forward is asking for this kind of uninformed nonsense.
Lesson for her. isn't part of the idea of an agency to take care of some of these things? meaning shouldn't they already have your/her best interests in mind?
i would think that if a model wanted to go over a release an agency handed her with a fine toothed comb... or show it to a lawyer... she'd get a reputation as a trouble-maker.
is there really such a thing as a legitimate general release through an agency? many (most?) agency oriented agreements specify what the images will be used for.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
Rays Fine Art wrote:
But we don't know at this point if the young woman is "signed" to any modeling agency or if she is, whether or not it's an exclusive agency agreement. [snip] My comment there was actually meant for K I C K H A M in reply to her assertion that an agency acting semi-independently from, but on the behalf of, a signed model, is bizarre.
It isn't. That's what agencies do.
Studio36
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
GPS Studio Services wrote:
Except that it doesn't appear that the agency issued the release, instead it looks like they asked her to sign a release. She probably trusted the agency, but the fact is that she it looks like she signed it herself.
I think this is going to be less than a simple case. I agree, There is something going on here a bit different from normal agency involvement. The devil is likely to be in the detail.
Studio36
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
J O H N A L L A N wrote:
This is ridiculous.
She signed (apparently) a general release (her statements about broad kitchen sink language). There is no requirement for specific end-usage to be in a release. Silly model.
The only mitigator I can possibly see, is if they stuck the release quickly in front of her to sign while blatantly misrepresenting verbally what the release covered or blatantly misrepresented the meaning of verbiage on the release when she asked to have it explained before signing. But still, she shouldn't be signing documents without reading them and understanding basically what they mean. A model that doesn't understand that a typical release, basically waives her involvement in the images going forward is asking for this kind of uninformed nonsense.
Lesson for her. Well, yes, and as Alan hinted at, and I agree, it may become a case of "What did they know; and when did they know it?"
I wonder if she might not have actually been formally represented and under contract with the agency at the time the test shots were made but that arrangement was made, as well, and took place some days later. That might go to explaining why she was asked to sign the release personally.
Studio36
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
studio36uk wrote:
Well, yes, and as Alan hinted at, and I agree, it may become a case of "What did they know; and when did they know it?"
I wonder if she might not have actually been formally represented and under contract with the agency at the time the test shots were made but that arrangement was made, as well, and took place some days later. That might go to explaining why she was asked to sign the release personally.
Studio36 Part of the "devil in the details", may very well be, that it appears from a cursory review of the story, that it wasn't a model agency, but a PR firm, that set her up for this test.
http://anamartinscommunications.com/
Photographer
Tim Roper
Posts: 146
Palo Alto, California, US
How does it work when a model doesn't speak or read much English? I know that's not the case here literally, but when it comes to reading contracts, it's sort of the same thing. The agency has a duty to act in the model's best interest, don't they? Sounds like this one didn't do that at all, and just rolled over for the client (or maybe was even in on the deception). Seems like she'd have a case against the agency, too.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
BeautybyGod wrote:
is there really such a thing as a legitimate general release through an agency? many (most?) agency oriented agreements specify what the images will be used for. Of course there is between the model and the agency because the agency will ordinarily be reliant on a limited power of attorney** to represent the model's interests in the most general way; it is a different matter as to permitted usage of any particular image(s) by clients. The latter will be specified in detail against the fees being charged.
note**
A Limited Power of Attorney for [a specified purpose] allows you to appoint an agent who will manage a specific element of your legal, financial or property affairs on your behalf. Studio36
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
J O H N A L L A N wrote:
Part of the "devil in the details", may very well be, that it appears from a cursory review of the story, that it wasn't a model agency, but a PR firm, that set her up for this test.
http://anamartinscommunications.com/ If true then precisely on point.
Studio36
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
Tim Roper wrote:
The agency has a duty to act in the model's best interest, don't they? Not necessarily. An agent has a duty to act in the model's interests [with care and due diligence] but not always in what might be their "best" interests. An agency is always acting, don't forget, secondarily, and quite properly, in their own interests as well.
Studio36
Photographer
KMP
Posts: 4834
Houston, Texas, US
My experience has been when someone does advertising for billboard.. Their fee goes through the roof. I've seen seemingly knowledgeable advertisers do stupid stuff when using a model's image and not having the proper release and/or paying for a specific use. This is where a good agency can come in very handy.
Photographer
Chuckarelei
Posts: 11271
Seattle, Washington, US
It all depends on the wordings on that release. Let the hearing begins.
Photographer
NewBoldPhoto
Posts: 5216
PORT MURRAY, New Jersey, US
studio36uk wrote:
Not necessarily. An agent has a duty to act in the model's interests [with care and due diligence] but not always in what might be their "best" interests. An agency is always acting, don't forget, secondarily, and quite properly, in their own interests as well.
Studio36 The 'Agency' appears to be a PR firm... I am curious as to the 'agencies' exact relationship with the other players in this drama.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
NewBoldPhoto wrote:
The 'Agency' appears to be a PR firm... I am curious as to the 'agencies' exact relationship with the other players in this drama. Actually, we may be looking [at least from a defence standpoint] at some more exotic, but legally recognised, specie of "agency" relationship between this model [the principal] and the PR firm [as their "agent"], and ultimately involving the company that actually used the images, than merely that kind of agency relationship more common to a "model agent " [or any other kind of agent] as is ordinarily understood and discussed in these fora.
A principal and agent relationship can arise in any number of ways, express or implied, in writing or orally, by the behaviour of the parties, through employment relationships, and even in some cases by either an action or inaction on the part of the principal, where one party [the agent] acts apparently, but without any actual authority, on behalf of the other [the principal].
Studio36
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
studio36uk wrote:
Not necessarily. An agent has a duty to act in the model's interests [with care and due diligence] but not always in what might be their "best" interests. An agency is always acting, don't forget, secondarily, and quite properly, in their own interests as well.
Studio36 Hmmm, in the US, the agency has an obligation to use the "highest duty of care." It is a fiduciary relationship. While your point is well taken, they must act in their own interest, their interests are limited to avoid a conflict.
As an example, an agent can't generally have a financial interest in a production they are being asked to provide talent for. That would give them an incentive to pick someone over their own talent, if they thought it served them better.
They must always attempt to negotiate in the best interest of their clients, which might not always be in their best interest. So it is a strange relationship.
In practice though, you are right. There is an inherent conflict of interest because the agency will make decisions, all the time, in their own best interest.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
GPS Studio Services wrote:
"highest duty of care." I might not agree to the use, universally, of that term as you have put it in quotes, knowing that there are degrees of duty of care. But that tends to go to issues of fact that we do not know in this case or this discussion.
Studio36
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if i was them i wouldn't want this to drag on too far.