Kent Art Photography wrote:
Has anyone mentioned a hypothetical 2257 connection with these hypothetical adult interest websites?

Doesn't say that the model is naked.

She could be a 9 year old teen beauty pagent contestant for all we know. It is Alabama Cutie afterall.

And - OP is Canadian so 2257 rules are very heavily modified..

Virtual Studio wrote:

It might be more appropriate to ask them than me.

I can guess it's to protect them from 1. bogus litigation and drama from the ignorant, 2. protect usage they may make of the photos that advertise their sites (and so would need a release), 3 ensure that the people in the pictures are actually models who have consented and not "revenge porn" victims - because that is now a crime.

But those are just guesses.

They do not need a release for just selling the images.

I'm going to refer you back to that link: http://danheller.blogspot.ca/2011/09/co … eases.html read if you're interested. Much better explanation than I can give.

This is pulled out of the link you provided (section on model releases):

...And here's where things get sticky. What are those conditions? When do they apply? The very short and simple answer is easy, an example of which can be found in California Code 3344. It has multiple sections, but section (a) says:

"... Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, shall be liable for damages."

While you would argue that selling images of a woman from a photo shoot does not legally require a release, in California, one could argue just the opposite.

The "goods" or "products", in this case, being digital or print images of the woman that is purchased. What is the purchaser buying (the goods or products)? They are buying digitial or print images. Is there a photograph or a person's likeness used on the product? Yes, the model's image/likeness is used in or on the digital file or hardcopy print.

Evan Hiltunen wrote:
This is pulled out of the link you provided (section on model releases):

...And here's where things get sticky. What are those conditions? When do they apply? The very short and simple answer is easy, an example of which can be found in California Code 3344. It has multiple sections, but section (a) says:

"... Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, shall be liable for damages."

While you would argue that selling images of a woman from a photo shoot does not legally require a release, in California, one could argue just the opposite.

But one would lose. There a rule in statutory interpretation (ejusdem generis) that precludes the reading you are driving for. You need to take the word "selling" in context, surrounded by advertising and soliciting. There's lots of case law around people selling images of people who have not consented - any paparazzi in CA makes their living that way - all supports the interpretation I've given.

The "goods" or "products", in this case, being digital or print images of the woman that is purchased. What is the purchaser buying (the goods or products)? They are buying digitial or print images. Is there a photograph or a person's likeness used on the product? Yes, the model's image/likeness is used in or on the digital file or hardcopy print.

Ever so sorry. But you cant bend the way this works through homeroom lawyering. I've given a pretty good explanation of how the law works. No amount of arguing with me is going to alter that.

At this point I'm going to have to tell you to consult an attorney for further details. The law's pretty plain - you'd need to win an argument in court to change it.

Virtual Studio wrote:

Ever so sorry. But you cant bend the way this works through homeroom lawyering. I've given a pretty good explanation of how the law works. No amount of arguing with me is going to alter that.

At this point I'm going to have to tell you to consult an attorney for further details. The law's pretty plain - you'd need to win an argument in court to change it.

Actually, the law isn't so plain and that's why there are court cases, misunderstandings, and more laws perpetually added on to modify, clarify, or make exemptions.

Evan Hiltunen wrote:

Actually, the law isn't so plain and that's why there are court cases, misunderstandings, and more laws perpetually added on to modify, clarify, or make exemptions.

In this case it's pretty plain though.

Much like the law on driving on the right.

Virtual Studio wrote:

In this case it's pretty plain though.

Much like the law on driving on the right.

Perhaps, in Canada, but I was not addressing Canadian law (topic had kinda spread out into a general discussion of releases and commercial activity/usage).

Virtual Studio wrote:
Note that the OP is in canada and i dont think even the rules around advertising etc apply there.

Side question specifically for you: Does Canada have established "privacy, personality, images rights" as a cause of action or would they deal with it as "passing off" [as in English law]?

Studio36

studio36uk wrote:

Side question specifically for you: Does Canada have established "privacy, personality, images rights" as a cause of action or would they deal with it as "passing off" [as in English law]?

Studio36

I don't know. I've been trying to clarify and get more information from others, not to make any claims of my own.

Virtual Studio wrote:

Canadian Law not same-same USA Law.


Even under American Law I'm at a loss as to why you would say that the OP needs a release?

The very fact that a photographer has a model release (that was signed at the time of the shoot) acts as a deterrent to getting sued later on. If a model wants to take action against you speaks to a lawyer, the first thing that lawyer will ask is if a signed model release is in existence.  If there is, it's highly unlikely the attorney will get involved unless there is a great deal of money at stake.

You brush your teeth every day to avoid tooth & gum decay . . .
It's the same idea of getting signed model releases, 2257's, and proper ID's to avoid aggravation later on.

KM

studio36uk wrote:
Side question specifically for you: Does Canada have established "privacy, personality, images rights" as a cause of action or would they deal with it as "passing off" [as in English law]?

Studio36

Evan Hiltunen wrote:
I don't know. I've been trying to clarify and get more information from others, not to make any claims of my own.

I was addressing that to Virtual Studio who I expect knows the answer.

Studio36

Virtual Studio wrote:
I know it's counter intuitive - but that's just how US law defines stuff. Sorry.

Be careful here.  Laws about privacy and publicity vary from state to state.  It's best to learn the statutes and case laws in your local areas.  Or, as Ken suggests, get a release and have your ass covered.

Virtual Studio wrote:
I know it's counter intuitive - but that's just how US law defines stuff. Sorry.

Brian Diaz wrote:
Be careful here.  Laws about privacy and publicity vary from state to state.  It's best to learn the statutes and case laws in your local areas.  Or, as Ken suggests, get a release and have your ass covered.

Of course there are variations in the wording of statutes when you are dealing with fifty individual states, - BUT - within all of them that have such statutes [not all do] there is a clear bright line between commercial and non-commercial usage lest they step on a photographer's 1st Amendment rights. Outside the US, where the OP lives, there is a whole different philosophy at work on publicity, image, personality and privacy rights altogether. And where I live there are no such rights in law at all.

Studio36

studio36uk wrote:

I was addressing that to Virtual Studio who I expect knows the answer.

Studio36

Sorry. Had my glasses as off and wasn't looking clearly.

studio36uk wrote:
Side question specifically for you: Does Canada have established "privacy, personality, images rights" as a cause of action or would they deal with it as "passing off" [as in English law]?

Studio36

The case in point treated it as being a passing off issue. Infringement of trademark.

AFAIK there are zero generally applicable privacy laws in Canada other than those which relate to the really crass (upskirt photos, lurking outside houses after dark photographing thru windows etc). Different provinces have different rules (much like states in the USA) but there is no general provision which would apply to models in the case of a scheduled shoot. Quebec and Ontario seem the provinces with most fully developed law headed towards a new Tort of Invasion of Privacy - but this hasn't really been litigated on enough for people to know what the ramifications are. How it would interact with the abrogation of a right to control an image (given that you generally cant generally contract away rights in Tort) no one knows. You could argue volens I guess but... no one really knows.

There is some thought that randomly snapping pictures of people in the street is limited in scope to use which would not be prejudicial to their comfort and wellbeing - but there is a high bar here. I'm thinking that a Rabbi walking under a scaffold in Toronto is probably in a better position to sue than one in NY - but the law really isn't fully formed.

Honestly though in Canada the law hasn't really been made yet. In the absence of anything clear I tend to fall in the camp of "I'm allowed to do whatever I'm not explicitly prohibited from by the state" - which is a robustly libertarian view. However you could make a case that it's a safety play in Canada to get a release albeit that it invites the courts to interpret presence / absence of a release as being customary practice.

Until 2012 it was very important to get an assignment of copyright in Canada since this could very easily vest in the model - this was normally done via a clause in a blanket release.. However since then the Copyright law has changed and we are in a sort of limbo.

As a matter of practice since mid way through last year in Canada I always always get a release if the shoot is even slightly erotic or sexy in nature - I am shit scared of the new Revenge Porn laws which are not at all well thought out and seem ripe for a set of bad convictions.

Dennis-O wrote:
I photographer, contact and hire (email) model for, say, $100 for an hour. Style, outfits, discussed and agreed to. No contract.

I'm not shure how this works in the US but in Germany and most other European countries this is a contract.
Except some very rare cases it is not necessary to make contracts in a written form. A verbal contract is as valid as a written contract.

Dennis-O wrote:
I'm sure this has been discussed, but:

I photographer, contact and hire (email) model for, say, $100 for an hour. Style, outfits, discussed and agreed to. No contract.

1 year later, I (photographer) put up website "Hot Cuties from Alabama.com" and her (our) entire shoot is available for download for $20 to ME (Photographer).

Yes this is morally 'questionable', ..but can a photographer do that - without an actual contract (or even agreement, question discussion on paper)?  (I understand that TFP is for 'promotional purposes' - and that's a bit different .. or is it?)

Thanks,
- Den

Hello,

I wonder if the morally questionable part is because you are not telling the model about the update with the work you shot with her.

Is there some reason in particular you are not contacting her to share an update with the work? Wouldn't that be the right thing to do if you can? Something simple, like, "Hi Model, just want to thank you for our shoot xyz time ago. Would you sign and fax back the model release we never did? I'd like to be able to use these. Thanks!"

Is this were the morality part comes in?

Jen

TomFRohwer wrote:

I'm not shure how this works in the US but in Germany and most other European countries this is a contract.
Except some very rare cases it is not necessary to make contracts in a written form. A verbal contract is as valid as a written contract.

It's the same in the USA and Canada.

LightDreams wrote:
Just for the record. My lawyer in Vancouver (still Canada) has a dramatically different interpretation from some of what has been suggested here as being the case "in Canada".  And not that different from much of the U.S.

I agree that a model release is a smarter way to go.  Done correctly, it's a clear, well documented statement of exactly what was agreed to.  Less "gray area" for the lawyers and it helps to avoid any "he said / she said" situations.  It also helps with many third party commercial sale situations.

Like I say above it's pretty much a tabula rasa in Canada right now.

What does your lawyer suggest? Full on pretend you're in the USA mode? Or is he/she even more restrictive than this?

I'd be super interested to hear what he thinks.

Virtual Studio wrote:
What does your lawyer suggest?

Short version: Cover yourself. Don't assume anything.

As far as the details, nothing that would really surprise anyone. Properly prepared model release and (if required) usage agreements for the model. Copies to all parties. Solid ID and documentation processes. Storage systems for the original copies (plus backup copies which don't carry quite as much legal weight), etc.  Just stuff that's been covered many times before.

[EDIT] He also pointed out that you shouldn't assume that in the future the requirements won't get tougher still. Especially when dealing with nude work. So thoroughly protect yourself. Keep in mind the kind of things that Ken Marcus has repeatedly pointed out for 2257 compliance in the U.S. It could happen here. And if you're providing content to U.S. providers (or decide to in the future) then there's even more requirements...[/EDIT]

Virtual Studio wrote:
This is a good read - http://danheller.blogspot.ca/2011/09/co … eases.html - though clearly not definitive, it's just a blog.

This is not being critical of you, but as far as I am concerned, Dan Heller is the country's worst authority on model releases and the law.  He is a photographer and not an attorney.  He misses the mark on so many things that all he does is to spread mis-information in the worst possible way.

If you want to go to good websites, try www.thephotoattorney.com or www.thecopyrightzone.com.  Both are run be respected attorneys that specialize in IP law.  Their information is much more accurate than Dan Heller's.

GPS Studio Services wrote:
This is not being critical of you, but as far as I am concerned, Dan Heller is the country's worst authority on model releases and the law.  He is a photographer and not an attorney.  He misses the mark on so many things that all he does is to spread mis-information in the worst possible way.

If you want to go to good websites, try www.thephotoattorney.com or www.thecopyrightzone.com.  Both are run be respected attorneys that specialize in IP law.  Their information is much more accurate than Dan Heller's.

Thanks for the pointer. It's always good to have better sources for explanations to point people to!

I'll freely admit that I only really read the section on "what is commercial use" and that seemed OK - if the rest is BS then thanks for pointing out.

Brian Diaz wrote:
Be careful here.  Laws about privacy and publicity vary from state to state.  It's best to learn the statutes and case laws in your local areas.

I'm not going to comment on the original post but I want to point out here that Brian is totally correct.  I have seen the statement "US Law" made by several posters here.  There is no "US Law" on the subject.  There are laws that vary widely from state to state.

The closest thing to federal law might be the regulations used by the federal parks system.  They regard every shoot, which involves a model, to be commercial, thus requiring a permit.  In other words, in the federal park system, you can be cited for shooting a model because all commercial shoots require a permit.

Thankfully, there is no federal law and few courts follow that lead.  The law does vary, however, quite significantly.  In US State law, we are controlled by two types of laws.  There is the right to privacy and there is the right to publicity.  Those rights can be statutory, common law or state constitutional.  I believe California is the most strict since we have the right to privacy in our constitution.  We also have a statutory right to publicity as well as a common law remedy.  On the other hand, North Dakota has neither the right to publicity nor the right to privacy.  In other words, if you shot a photo in North Dakota and published it in North Dakota, you might well not need a release, no matter what you did with the images.  No appellate court in North Dakota has ever recognized either right.

In between, there are all kinds of variations.  In New York, you absolutely must have written consent to use a model's likeness for commercial purposes.  On the other hand, there is no statutory, nor common law right to privacy outside the bounds of commercial use.   New York also doesn't follow the norms in terms of a release.  The courts have found almost anything, in writing to be sufficient.  In one case, a celebrity wrote on the back of a photo "glad to be onboard" and that was enough for consent.  New York has another strange case.  There was a situation where a model signed a release that was clearly defective.  It lacked consideration and had other structural defects.  The court found that the release, in and of itself was defective and unenforceable, but still found for the publisher.  The theory as that New York doesn't require a release.  It requires written consent.  So, while the release and its terms were unenforceable, the court reasoned that the model had intended to give consent, which was in writing.  So, New York is the only state that will accept a release that it acknowledges as invalid, so long as it shows consent in writing.

That varies from California which allows consent by conduct or implication as well as in writing.  So, for example, if a model attended a photo shoot for a TV show, which they knew was going to be broadcast, that would probably be sufficient as consent to be on that show.  On the other hand, if you had the same situation, as in New York, with a defective release, no consent may exist at all.  California also has a constitutional right to privacy.  In some situations, you can sue for invasion of privacy even when no commercial use is implied.  Then again, California finds many things commercial where other states would not.

I will go back to California and New York.  There is the case we talk about with the Jewish man shot on the street.  He didn't consent to his photo being taken.  It was made into a print that was sold as art in a gallery.  In general, that use would be permitted in most US states without consent.  It varies between New York and California to the extent that California has a lower bar as to when it moves from art to commercial use. In New York, you can typically sell unlimited prints in a gallery and it won't be commercial.  In California that isn't the case.  The safe move is a single print, or at most a very limited run of signed prints.

Where California and New York vary is that in the case I just described, the gallery made a postcard out of the photo being sold.  They then distributed that postcard to thousands of people trying to get them to come buy the prints at the gallery.  The attorney for the man argued that the use rose to commercial use because of the advertising.  The New York Court ruled that a use doesn't rise to being commercial simply by advertising your non-commercial sale. That decision is unique to New York.  Under the same set of facts, that would most probably be commercial use in California.  Similar cases have gone the opposite way.

My point is that there is no such thing as "US Law" when it comes to model releases.  It will vary both by state and by the specific facts of each case.  It is always safer to have a release. It is equally true that there are many situations where a release isn't needed. If you are in one of those, having a release won't make any difference at all.  That having been said, if the situation is unclear, or if you get sued anyhow, it never hurts to have the release. 

Look at it this way, if you have a release and don't need it, you are unharmed.  If you don't have a release, but you do need it, then you have a problem.  Just because you don't think you need one doesn't mean that a court or jury will agree.

GPS Studio Services wrote:
...
...
...
Look at it this way, if you have a release and don't need it, you are unharmed.  If you don't have a release, but you do need it, then you have a problem.  Just because you don't think you need one doesn't mean that a court or jury will agree.

It's the same pretty much in Canada. These days I probably over provision on the releases in the interests of being safe in the face of a very loosely defined set of laws - especially the Revenge Porn law. Do I actually need one? - probably not but it's no big deal to get one.

Like the USA our laws vary province by province.

The UK is really the only place where you are lots worse off getting a release (because you then fall foul of the Data Protection legislation unless you jump through hoops to comply).

Does the OP need a release? No. Would he have lost anything by getting one? No.

Virtual Studio wrote:
The UK is really the only place where you are lots worse off getting a release (because you then fall foul of the Data Protection legislation unless you jump through hoops to comply)..

There are two issues here to take account of. Data protection is Europe wide and the releasing questions more associated with the UK internally.

DATA PROTECTION - In this area of law a UK model may or may not have to give an informed consent for a photographer to have and keep their personally identifying data on file and to distribute it, or any part of it, where necessary such as with issuing a license to a third party [image library; broker; publisher; ect]. There are many technical details involved in doing that. On the other hand a business-to-business relationship, and transaction, does not fall within the ambit of the statute - thus if the model is a "sole proprietor contractor" [e.g. self employed] doing a shoot with a photographer who is also a business [of some form] the model does not enjoy the rights, or is the photographer bound by the obligations, associated with the data protection regime imposed on businesses handling other kinds of personally identifying data such as from retail type customers of a photography business. Further, if the photographer is NOT a business [e.g. a hobbyist] even if the model is then any personally identifying data he keeps on the models he uses is also not caught by the statute. Further, in some EU countries B-B transactions ARE covered by Data Protection law; and in others, yet, even a person's image, with nothing else identifying them, is considered to be "personally identifying data" caught by data protection law in those jurisdictions. Some countries regulate only computer held data [in a searchable data base] and others include both computer and manual records. This whole area of law is a minefield for the unwary.

RELEASES IN THE UK - Yes, you are correct. A release certainly can limit the use of the work. It is possible, as some might do such as we see here from time to time with the occasional mention of a TF* form of release which is intended to be limiting, to obtain a release that specifies, or even implies, some kind of limitation [personal use; self promotion; ect] and then use the work outside of those stated consented to uses. In that case the other party can seek to enforce the terms to limit use to those specified uses and no other. This is a classic example where obtaining the release, if it embodies any such limitations, express or implied, is likely worse than obtaining no release at all. A release [and I prefer to refer to a releasing document - because it should be far more than a mere consent type release normally discussed here] in the UK and is intended to do a lot of things not associated with releases used elsewhere.

Studio36