udor wrote:
Hope she gets enough notoriety out of this publicity to make some great cash for herself and gets a nice career going!

That may well be her real aim.

udor wrote:
...there was a verbal agreement of NOT using the images for adult/sex trade sites.

...

She claims there was but we don't know that is factual.


A contract is a contract, in my book.  What does the release say?  We don't know.

udor wrote:
Hope she gets enough notoriety out of this publicity to make some great cash for herself and gets a nice career going!

Rob Photosby wrote:
That may well be her real aim.

This actually happened to a friend of mine. She is a singer, dancer and model (classically trained in NYC, Seoul and London), I shot with her as well.

Her likeness ended up at French and Swiss Escort sites. She did implied, nudes and fetish styled photo work... and her images were lifted off the net and posted on those sites. She was pretty devastated, but didn't go the route of suing.

NYC fine art nudes wrote:
If only there was a short & sweet ironclad release ....

There is.  She apparently signed it.  Just goes to show you can be sued for anything.

udor wrote:
She could have added it (verbal agreement*) to the release form, initialed by her and him.

However, a verbal addendum to a contract may or may not be enforceable, but... the photographer is a fucking douchebag, if he tricked her into the photos, telling her they are for non-sex sites, but in reality selling her photos to such sites... and, not honoring his word!

*added for clarity
+1
I would be surprised if a judge permitted the verbal addendum of a contract, given the limitations of verbal contracts.

Actually oral contacts are a lot less limited than most people think. You can do almost anything with them - with a very few exceptions (land and copyright mainly).

The real problem is proving what you agreed - unless the oral contract was taped.

Most professional contracts have an "entire agreement" clause saying thst the written contract is the "entire agreement" and specifically excluding oral addendum for exactly this reason.

udor wrote:
However, a verbal addendum to a contract may or may not be enforceable, but... the photographer is a fucking douchebag, if he tricked her into the photos, telling her they are for non-sex sites, but in reality selling her photos to such sites... and, not honoring his word!

Whoa!  You are stepping so far out of your knowledge base it is appalling. Before you go accusing the photographer of being a fucking douchebag you might want to consider the very real possibility that he simply uploaded the referenced shot to a microstock image library--which literally hundreds of other photographers on here do. At that point he both loses control of who downloads the photo, but also should be let off the hook. It seem far more likely that this is the case than an Ohio photographer made individual sales in Switzerland and Dubai.

While it is also possible that both of those referenced usages violate the terms of the microstock terms of usage it does not stop buyers downloading them for that purpose--sometimes they may even think it is legal if they did not read the fine print. Of course it is not, but that is like three layers away from the photographer.

My read is that it is far MORE likely that the photographer, well within his rights, submitting a glamour image to a stock site and it was used in ways that the model did not anticipate (possibly in violation of the micro stock usage terms). However, she even acknowledges that she signed the model release (which sounds like a stock release) just like thousands of models here do without thinking about what she was doing.

Doesn't read like douchebag to me. Seriously low-class for you to suggest it without more information.

remarkably similar shot on the photographers portfolio at Shutterstock:
http://www.shutterstock.com/pic-1871033 … gq78g-1-84
apparently he is a very good food shooter...

It took me only 1 minute of searching to find this. It is amazing that the writer of the article was so pressed for time that they couldn't even do that amount of research. But then again it's the Post--what can you expect. I do expect more from fellow photographers however.

Dan Howell wrote:
My read is that it is far MORE likely that the photographer, well within his rights, submitting a glamour image to a stock site and it was used in ways that the model did not anticipate (possibly in violation of the micro stock usage terms). However, she even acknowledges that she signed the model release (which sounds like a stock release) just like thousands of models here do without thinking about what she was doing.

Interesting - all of the micro stock sites I use require you to use their release which ahs to be witnessed by a third party.

That makes it super easy to determine if the case has merit or not - just ask the third party what was said at the time.

Dan Howell wrote:
Doesn't read like douchebag to me. Seriously low-class for you to suggest it without more information.

Well, Dan, you are correct: I was wrong for judging based on her account alone.

I have experience with photographers doing exactly what I have described... some of those cases I had dealt with as a moderator on MM a few years back.

I was considering those cases, neglecting the Microstock possibility and for that I apologize for premature judgment and will edit my post accordingly.

Edit: After reviewing my initial post... I bolded and underlined an important part that you have overlooked, Dan... I clearly stated that "...the photographer is a [...] douchebag, IF he tricked her into the photos,..."

If he didn't trick her, that statement won't apply to him!

JQuest wrote:
While in this instance in regard to the verbal portion of the contract it is indeed a "he said, she said" type of arrangement I would think it would be fairly easy for someone to corroborate whether or not the photographer in question routinely makes such verbal agreements beyond what the printed signed release says simply by querying other models he's worked with.

I will tell you, from a legal standpoint, unless the written agreement was "ambiguous," it is often difficult to introduce testimony as to what you thought a contract (or release) meant.  It is called "parol evidence."   If the release is well written and not easily subject to interpretation, the court will let the document speak for itself.  In other words, you won't be able to give the kind of evidence you are suggesting to express your interpretation.  If you are trying to add covenants that aren't there, your testimony is even less likely.

On the other hand, if her attorney is arguing that there is ambiguity, if the court buys the argument, he might well be able to produce a wide range of parol evidence.  Again, not having read the complaint or seeing the release, we don't have enough information to form a judgment.

udor wrote:
Hope she gets enough notoriety out of this publicity to make some great cash for herself and gets a nice career going!

I'm really asking this -- I don't know how I feel, but would you want to hire a model who disputes model releases and who sues photographers?

udor wrote:
Hope she gets enough notoriety out of this publicity to make some great cash for herself and gets a nice career going!

Looknsee Photography wrote:
I'm really asking this -- I don't know how I feel, but would you want to hire a model who disputes model releases and who sues photographers?

That is always the risk when you sue, isn't it?

GPS Studio Services wrote:
I will tell you, from a legal standpoint, unless the written agreement was "ambiguous," it is often difficult to introduce testimony as to what you thought a contract (or release) meant.  It is called "parol evidence."   If the release is well written and not easily subject to interpretation, the court will let the document speak for itself.  In other words, you won't be able to give the kind of evidence you are suggesting to express your interpretation.  If you are trying to add covenants that aren't there, your testimony is even less likely.

On the other hand, if her attorney is arguing that there is ambiguity, if the court buys the argument, he might well be able to produce a wide range of parol evidence.  Again, not having read the complaint or seeing the release, we don't have enough information to form a judgment.

Agreed, however if her lawyer can introduce a pattern whereby promises have been made previously to other parties outside of release stipulations that were not adhered to then it can be established that the release was fraudulently offered. Anyhow it's now an exercise for the courts.

Lallure Photographic wrote:
There is. The ASMP release.

Written with all the overconfidence of a non-attorney. May you never run forcefully into the limits thereof.

Dan Howell wrote:
Whoa!  You are stepping so far out of your knowledge base it is appalling. Before you go accusing the photographer of being a fucking douchebag you might want to consider the very real possibility that he simply uploaded the referenced shot to a microstock image library--which literally hundreds of other photographers on here do. At that point he both loses control of who downloads the photo, but also should be let off the hook. It seem far more likely that this is the case than an Ohio photographer made individual sales in Switzerland and Dubai.

EXACTLY. If I had to take a guess, I'd say this is precisely what happened! Sarah Jane, a local model and good friend of mine, did a TFP shoot with a photographer in a showgirl outfit years ago and he sold the photos to every stock site he could find. She's found the photo used on giant billboards, on magazine ads, and even for a bus-stop ad in London for a casino. She's smart enough to realize that while it upsets her she's not seeing 1 penny from all these sales, she now knows how to not sign her life away on every photo shoot. Obviously the model in question here hasn't learned that lesson yet and now her attorney is telling her to sue so he can make some quick bucks.

But her request to not have the images sold for porn, and trying to enforce that, is ridiculous. This definitely is a he-said/she-said and I find it odd that people are so quick to just take her side on this when she is most likely wrong. I'm sure their conversation on this matter went like this though:

WHAT ACTUALLY WAS SAID IN THE MATTER:

Model: You aren't going to sell these photos for any porn sites, are you?
Photographer: [as he's packing gear after the shoot] Uh...no, I'm not.

WHAT SHE HEARS

Model: You aren't going to sell these photos for any porn sites, are you?
Photographer: [while raising right hand in the air] I do solemnly sear, under oath, that I, Joe Photographer, will not sell, transfer, barter, or otherwise use said photos for any adult content in any way under penalty of lightning strike from God.

That's probably how this REALLY went down. Now she has a shyster. Again, it's he-said/she-said, but based on what I'm reading, I hope she loses badly and sadly, the only people that will win are the shysters.

udor wrote:
Now, from my layman's perspective, although the written model release was signed, there was a verbal agreement of NOT using the images for adult/sex trade sites.

A verbal contract is worth the paper it's written on.

Shot By Adam wrote:
A verbal contract is worth the paper it's written on.

There are Billions of Dollars traded every day via a verbal and binding contract even via handsignals.

Different countries also have different takes on verbal contracts, even including the old fashioned "handshake" to seal the deal.

In the US, it's a very tricky situation, but a verbal contract is not automatically invalid.

udor wrote:

There are Billions of Dollars traded every day via a verbal and binding contract even via handsignals.

Different countries also have different takes on verbal contracts, even including the old fashioned "handshake" to seal the deal.

In the US, it's a very tricky situation, but a verbal contract is not automatically invalid.

I used to do the technology for the Funding Desk for one of the two really global banks. We did $18 Billion dollars a day of T-Bill trades with nothing more than oral contracts. For sure they were taped but oral contracts none the less.

There is virtually nothing you can do with a written contract that you cant do with an oral contract (land and copyright being the two notable exceptions).

Shot By Adam wrote:
A verbal contract is worth the paper it's written on.

udor wrote:
There are Billions of Dollars traded every day via a verbal and binding contract even via handsignals.

Different countries also have different takes on verbal contracts, even including the old fashioned "handshake" to seal the deal.

In the US, it's a very tricky situation, but a verbal contract is not automatically invalid.

This is not to knitpick, but let's use the correct terminology.  In legal terms it is an "Oral" contract.  That means that it was spoken.  A "Verbal" contract, is one expressed in words.

Again in legal terms, contracts are normally referred to as "oral" or "written," "expressed" or "implied."  A "verbal contract" is one that is "expressed in words."  An "Oral Contract" is generally an "expressed contract spoken in words" as opposed to one that has been written.

Anyhow, no big deal.  If we were lawyers, it would be more significant.  I just see the term "verbal" used interchangeably with "Oral" and they don't mean quite the same thing, although we do understand them that way.

Leonard Gee Photography wrote:
Model Mayhem is named as a defendant, seems a bit of a stretch:
http://digitalcommons.law.scu.edu/cgi/v … historical

An interesting analysis (half way down page):
http://www.jacksiegelphoto.com/#!/blog

Was easy to find a 17MP clean, un-watermarked, no metadata image online - which could be the reason it's so popular and used so often. The shutterstock use issue is a big problem.

The accusation that includes Model Mayhem follows in part:

"39. Almost immediately after the completion of the photo
shoot, Defendant Resnick, in complete violation of the Resnick
Contract, began to sell the photos of the Plaintiff on the internet
to various purchasers for adult-oriented and/or sexual purposes,
including but not limited to Defendant Shutterstock, Defendant
Playboy, Defendant Emma Nichols, Defendant Hunt, Defendant Griffin,
Defendant Ray, Defendant Avery, Defendant Madison, Defendant
Armstrong, Defendant Lothario, Defendant BradP, Defendant Blush
Pittsburgh, Defendant Blush Portland, Defendant Vegas Cabaret,
Defendant Love Store, Defendant Red Radio, Defendant Clear Channel,
Defendant MUZU, Defendant FVE, Defendant UPROXX, Defendant Model
Mayhem.com, ...."

To my knowledge, Mayhem does not "buy" or "sell" images posted here, as they do not own them! They merely allow photographers, etc. to display them!
Fail!

Flex Photography wrote:

Leonard Gee Photography wrote:
Model Mayhem is named as a defendant, seems a bit of a stretch:
The accusation that includes Model Mayhem follows in part:

"39. Almost immediately after the completion of the photo
shoot, Defendant Resnick, in complete violation of the Resnick
Contract, began to sell the photos of the Plaintiff on the internet
to various purchasers for adult-oriented and/or sexual purposes,
including but not limited to Defendant Shutterstock, Defendant
Playboy, Defendant Emma Nichols, Defendant Hunt, Defendant Griffin,
Defendant Ray, Defendant Avery, Defendant Madison, Defendant
Armstrong, Defendant Lothario, Defendant BradP, Defendant Blush
Pittsburgh, Defendant Blush Portland, Defendant Vegas Cabaret,
Defendant Love Store, Defendant Red Radio, Defendant Clear Channel,
Defendant MUZU, Defendant FVE, Defendant UPROXX, Defendant Model
Mayhem.com, ...."

To my knowledge, Mayhem does not "buy" or "sell" images posted here, as they do not own them! They merely allow photographers, etc. to display them!
Fail!

And, the real douchebags are
#1. The attorney who has probably conjured up the accusations that the photographer "sold" the images to the adult sites listed.  Who wants to bet that he has proof that the images were sold and not stolen or not pirated?  For sure, they probably weren't sold to MM

#2 All you douchebags that immediately presumed without checking thoroughly into the facts of the case, that the photographer was the bad guy here.  Are you all such a bunch of drivels that you can only feel good about yourself by putting someone else (or their work) down?  It's usually the same bunch of people here that jump on photographers; automatically taking the side of anybody who blames a photographer for nearly anything.  Some of you must swallow so much quinine every day that you make our illustrious (and soon departing) Sourpuss Leader of the Senate look like an altar boy.   You are "The Usual Suspects".

studio36uk wrote:
Anyone done a Google image search on that picture? I did!

If one use in a hundred, discovered by that route, is actually, honestly, licensed and paid for I'll eat my hat.

Pages and pages and pages of returns... Europe; Russia; the Far East. She seems very popular in Poland, I must say, because there that image is actually listed on one Polish site as a "public domain" image. Other sites are putting their own watermarks on it; some are putting logos on it. DJ's are using the image; it's popping up on 2015 calendars; porn sites are using it; and on and on and on.

Studio36

Using tineye search, that image also shows up on numerous stock photo sites. Those folks are generally pretty careful about releases and such.

Virtual Studio wrote:
Actually oral contacts are a lot less limited than most people think. You can do almost anything with them - with a very few exceptions (land and copyright mainly).

The real problem is proving what you agreed - unless the oral contract was taped.

Most professional contracts have an "entire agreement" clause saying thst the written contract is the "entire agreement" and specifically excluding oral addendum for exactly this reason.

But they do have there limitations.  One limitation is the difficulty in defending the language of the contract.  example: https://www.paed.uscourts.gov/documents … D1155P.pdf

Another limitation is proving the oral contract exists.  You cite that the contracts you worked under, are recorded (audio, if I understand correctly).  However, that is not always possible.  In some states, such as mine, it remains difficult to legally record a conversation.  I cannot turn on a tape recorder when I get up in the morning, and record my day. The people being recorded have a right to know they are being recorded (here).  Nor am I in the habit of carrying a tape recorder.  Though there may be something like that on my phone.  I will have to look. 

In my discussions with models, I have been willing to codify any special terms in the release.  We talk all that stuff out before hand, I type it up, she signs and gets a copy.  Everybody is happy.

Another draw back to an oral contract is that there are requirement/limits that must be satisfied.  An oral contract in Pennsylvania is not valid if the period of the contract exceeds one year.  What is the life span of an oral addendum to a written contract?  I have to think it is less than one year, in Pennsylvania.

So, in the matter in which the thread is about: I would be interested in seeing the proof of existence of an oral contract and the stipulations of said agreement.  Not that it can't be done.  There were some comments above that would be interesting.  I hope to read about this case as an appellate review sometime.

MoRina wrote:
First lesson of modeling:  you don't own the images of you.

Second lesson of modeling:  don't pose for something you don't want seen.

Third lesson of modeling:  people will portray/label you in ways you may not like.

So if we follow this line of reasoning, sadly it concludes with "Don't model", at least to anyone with good common sense. Unless you do not mind images of you being used in very nasty ways.

However the second lesson is very true. You may trust the photographer, but there is no way to guarantee what may happen out of their control.

Lohkee wrote:
Using tineye search, that image also shows up on numerous stock photo sites. Those folks are generally pretty careful about releases and such.

There IS a release. She signed a release. It's not the stock sites that are the problem. It appears that a copy of that somehow got into the wild and it all went down hill from that point onwards.

Studio36