MoRina wrote:
The time to ask about usage and negotiate your rate was before the shoot, not after.  I would sign the release.

From a technical perspective, it's the photographer who has the problem now. He should have negotiated prior to the shoot. Now the model can be as demanding as she likes.

MoRina wrote:
Think about this: a photographer pays you $200 for a shoot because he hopes to sell the images. A year later, he contacts you and tells you that he can't find a buyer and wants the money back that he paid you.  Would you send it back?

No, she shouldn't send anything back. It's the photographer's gig. He's responsible for the success or lack thereof. If he doesn't sell anything, that's his issue. Similarly, if he manages to sell an image for a million dollars, good for him. Either way, once the model is paid and shoot is over--assuming a simple-fee-for-shoot--then she's done. Now, it's all up to the photographer.

Nichole Hopkins wrote:
Please tell me what my rights are? Thanks!

I am not giving legal advice. And you should rely only on those who are able to provide legal advice. That said, here's my understanding.

From your description, this shoot wasn't street photography.

You can see a lawyer and have him stop, plus get some compensation. However, unless he is making reasonable or big bucks, it likely isn't worth your time and effort. You can always quickly contact an attorney and discuss whether it's worth your effort.

Here's a book worth reading The Copyright Zone: A Legal Guide For Photographers and Artists In The Digital Age. Aside from Copyright, which concern photographers, the authors discuss model releases and the consequences of not having a proper model (and where applicable property) release. The book is a fast and easy read. If you read the book, you can discuss your situation with your attorney more effectively because you will already have a reasonable understanding.

Nichole Hopkins wrote:
Hi MM. About a year ago I did two shoots for a student photographer, for his personal portfolio only. These were paid shoots, but I didn't sign a release as I was under the impression they were just for his book (I usually don't sign releases anyway). These were just simple lifestyle type shots taken around public places.

Lately he has been bothering me to sign a model release and its because he says he intends on selling prints. I told him I wont sign off unless he pays me a higher rate, I worked for him for a personal portfolio rate (a student rate, at that). Now he is saying that because the shoot was outside it was "street photography" and he does not legally need a release from me, even though anyone with half a brain knows just by looking at the pics they aren't "street photography"- I am the only one in the frame, literally no one else, I am not a passerby you can barely see. I am the only thing in frame, nothing was taken from a distance, no scenery or buildings in the shots. I am not sure how much he realistically stands to profit from these prints but if he intends to sell my likeness I am due more than the small student rate I charged him, right?

Also, he is in NY, I have no idea how to tell if he actually does this or to what extent.

Please tell me what my rights are? Thanks!

Has he been bothering you to sign a model release via email?  Ie, is there a written conversation?  If he has asked for a release, that could be seen as admission that he knows he needs a release.  (I am not a lawyer but have to deal with the law on a regular basis as part of my profession.  I have court cases in my files that allude to what I am saying.)  I suggest an IP lawyer from his location, but that would cost YOU money.  You could send him a polite email explaining that the additional funds that you want are a bargain compared to the legal fees and awards that he will be paying.   

He is/was a student.  Sue him and consider it part of his post graduate learning experience.

But, do as was suggested above and read.  He may not need a release.  A release is to publish, not sell.  You can get money (maybe) from the person who wishes to publish (or sue them for publishing without a release- they will have more money) when they contact you for a release.  Also, if they are sold as art in NY, he doesn't need a release.  You can confirm this by googling Bridget Moynahan and the case she has going against her former boyfriend/photographer, who is selling gallery fine art prints of her nude.
http://www.inquisitr.com/1601406/blue-b … de-photos/


Good luck.

Hunter  GWPB wrote:
Sue him and consider it part of his post graduate learning experience.

That's the problem with the experience, you get the test before the lesson is taught. Sometimes, however, experience is the best teacher. In any event, I like your response.

Dan Heller - Checklist for Photographers wrote:
Model Releases are only necessary to publish pictures.
Even then, very specific guidelines are necessary to trigger the need for a release: if the photo suggests someone subscribes to a particular idea, product or service.

It is highly unusual that photographers ever publish images in a manner that requires a model release.
Photographers sell (or license) photos to others who publish those images.

Selling or licensing photos does not require a release.
Such is not a form of publication, nor is it an action that suggests anything about the person in the photo. It is merely a financial transaction.

Placing photos on websites for the purposes of selling them does not require a model release. It is what courts have called a vehicle of information (that the photo is for sale). The buyer of the photo may need a release if and only if the nature of its publication would trigger the need for a release.

Money or profit has nothing whatsoever to do with whether a release is required.
Because the need for a release is only governed by how and whether the person in the photo might be regarded as subscribing to an idea, product or service, it is entirely irrelevant whether money (profit) was made. Similarly, even free uses of photos (or use by non-profits) does not mean that releases are not required. Get the whole idea of money out of your mind...

SayCheeZ!  wrote:
A big one is that you need to first obtain a model release before selling photos of people.

From the facts given, we have zero information on how the photo is or might be used. That's why there are attorneys. And attorneys do sue photographers and win. Pick up the book I referenced earlier. Greenberg references cases he has won.

If you want an excellent primer, look at 500px: https://iso.500px.com/model-release-guide/

Here's an interesting video presentation with Greenberg, a lawyer, and Reznicki, photographer, on copyright and model releases and general stuff: http://kelbytv.com/thegrid/2015/02/26/t … isode-181/

From Carolyn E. Wright, attorney, http://www.photoattorney.com/when-you-d … l-release/

Privacy rights are recognized in most states, but the specific laws are different for each one. The [strike]National Conference of State Legislators [/strike] and The Reporters Committee for Freedom of the Press provide an overview of them. Check with your attorney for more information.
The Allen lawsuit reportedly has settled for $5 million. What to learn from this case? Get a model release to protect yourself and to make your photos more attractive to potential buyers.

Pay attention to the last sentence: "Get a model release to protect yourself ..."

Why use a model release when you can settle for some pocket change?

SayCheeZ!  wrote:
In the USA, a photographer doesn't need to have a release to sell their own photos.
http://www.danheller.com/model-release.html

Photography business analyst Dan Heller has written a helpful post in which he busts common misconceptions photographers in the US have about model releases. A big one is that you need to first obtain a model release before selling photos of people.

That is a very interesting article, and, assuming that the info in it is correct, it would seem that the OP's photographer is free to sell his photos because they would be art.

Darren Brade wrote:
Since you gave him a student rate, why not just charge him the difference to sign the release.

I'm at a loss why you're not using your business head?

She is using her business head.  She asked for advice on what her rights are.
In this situation there's no need for a release, so asking for more money is pointless.
People with a good business head don't chase after money that they won't get.

Nichole Hopkins wrote:
Lately he has been bothering me to sign a model release and its because he says he intends on selling prints. I told him I wont sign off unless he pays me a higher rate,

(on the other hand, because the photographer is asking the model to sign a release because he simply wants to sell a few prints, it seems that the photographer doesn't know their full rights... so yeah, the model may be able to extract a few more bucks for signing a release... there's no law against that!)

Stecyk wrote:
From the facts given, we have zero information on how the photo is or might be used....  (etc)

According to the OP, the photographer plans on simply selling prints, which he can do without a release.

Nichole Hopkins wrote:
Lately he has been bothering me to sign a model release and its because he says he intends on selling prints. I told him I wont sign off unless he pays me a higher rate,

-----------------------------------

Stecyk wrote:
If you want an excellent primer, look at 500px:

Which basically states the same thing that Dan Heller talks about.  The primer states:

When do I really need one?
If there is a recognizable person in your photo and you want to make it available for commercial licensing you ALWAYS need a model release. Without one you could be liable and face serious legal issues by your models for improper use of their likeness. For a model, commercial licensing means that their depiction will be used to sell and promote something (often, not knowing for what or how).

The photographer is simply selling prints.  Nothing more.
If one of his customers / clients decides they'd like to publish the photo in a book or use the photo in an ad then the customer / client would need to obtain a release from the model (and a usage license from the photographer).

Of course, if the photographer already had a release it would be easier for the client to use the photo for publication or advertiserments IF the release is both transferable AND usage is within the limits described in the release.

Rays Fine Art wrote:
Whether a release is required by law (and that will depend on the state(s) and circumstances involved) the controlling factor is whether or not anyone will buy the pictures without a proper release.

If a person is simply buying a photo to be used in a non commercial way (like hanging on their living room wall, giving as a gift, turning it into a paper airplane, or using as target practice) there's no release needed. 

When you buy a photo, painting, or sculpture at an art gallery you (most likely) won't get any release simply because there's no need for one.  You purchase a photo. painting. or sculpture at an art gallery and then have a great idea to publish a calendar or use it in an insurance commercial then you'd need both a model release AND a license from the artist.

I don't think many customers will have issue buying the photo without a model release.  It's not an issue.

Nichole Hopkins wrote:
I'm not trying to be "money grubbing and difficult".

Yeah, I'm sorry -- I've been stuck here at home all week with a wicked cold, and I am even more cranky than usual.

However, my point is that these seems to be one of those situations were the parties are trying to interpret and/or redefine the terms & conditions of an agreement after the fact, instead of before it.  All I see ahead is contention, which in the long run won't be good for anyone.  Maybe you are right.  Maybe you aren't.  Maybe a court can decide.

I should also point out that, in my opinion, both parties in a legal dispute nearly always lose, despite one side winning.  Legal disputes can take time, provide distractions, and can ruin a reputation.

Advice to all -- document your agreements & don't redefine or reinterpret them after the work is done.

So, good luck.

Darren Brade wrote:
Since you gave him a student rate, why not just charge him the difference to sign the release.

I'm at a loss why you're not using your business head?

+1

The quote above is the best advice you've gotten in this thread. 

Generally, ignore online legal advice from non-attorneys, particularly if they are not US Citizens and probably not familiar with US law.  This is a usage issue, not a copyright issue.  The photographer owns the copyright regardless of whether there was a model release signed.   Unauthorized publication of your likeness comes under a whole other section of the law.   

Going to court is expensive and time consuming.  It also can damage your reputation whether you win or lose.  You can quickly spend in excess of $1000 in attorney fees before even going to trial.  Is there that much at stake?

SayCheeZ!  wrote:
The photographer is simply selling prints.  Nothing more.

We have no clue how the print will be used. It could be used in a display for a retail promotion. We don't know, so we shouldn't assume.

There might be other considerations, such as tort of contractual interference. The two parties agreed to one course of action and now a different course of action is being contemplated or completed.

Nichole Hopkins wrote:
Hi MM. About a year ago I did two shoots for a student photographer, for his personal portfolio only.
...
Lately he has been bothering me to sign a model release and its because he says he intends on selling prints. I told him I wont sign off unless he pays me a higher rate,

If this matter is a serious concern to her, she should consult with an attorney.

When do I really need one?
If there is a recognizable person in your photo and you want to make it available for commercial licensing you ALWAYS need a model release. Without one you could be liable and face serious legal issues by your models for improper use of their likeness. For a model, commercial licensing means that their depiction will be used to sell and promote something (often, not knowing for what or how).

SayCheeZ!  wrote:
The photographer is simply selling prints.  Nothing more.
If one of his customers / clients decides they'd like to publish the photo in a book or use the photo in an ad then the customer / client would need to obtain a release from the model (and a usage license from the photographer).

Of course, if the photographer already had a release it would be easier for the client to use the photo for publication or advertiserments IF the release is both transferable AND usage is within the limits described in the release.

Of course it's equally possible that the photographer knows all this and is seeking a release with the specific intent of licensing the images commercially. Or, that the "wants to sell a few prints" line is a simple lie, intended to discourage the model asking for a cut of any future licensing fee/deal.

It's not like it's unknown for photographers to try pulling sneaky shit like this, on models.

SayCheeZ!  wrote:
The photographer is simply selling prints.  Nothing more.

Stecyk wrote:
We have no clue how the print will be used. It could be used in a display for a retail promotion. We don't know, so we shouldn't assume.

If the photos are used for any commercial reason (like a display for retail promotion) then it's really up to the people creating the display to obtain a release.  It's really that simple.

There's more danger in a model signing the typical standard 'non-limited' release form that many photographers provide than signing a release on an individual basis.  If the model signs a transferable general release the model will still "have no clue how the print will be used".  In many, if not most cases the model may not care and it's a non issue... but it can and does happen where an image is used in a commercial manner that can be detrimental to a model (ie: a herpes drug ad, an ad for Coca Cola when she works a regular job at Pepsi, or Coach leather when the model is a Vegan.),

A model agency or manager will usually ask for details of what a shoot will be for and charge accordingly.  That's why you hear about models making thousands, if not tens of thousands of dollars per day for a shoot.  It's NOT that they're doing anything different than any other model, but they are represented by people that know and understand the details of usage and are charging appropriate fees. 

By NOT signing a release, the photographer is LIMITED only to selling prints.  By signing a TYPICAL release the image can be used for almost anything, and the model can easily end up selling themselves short..

- Phil H - wrote:
Of course it's equally possible that the photographer knows all this and is seeking a release with the specific intent of licensing the images commercially. Or, that the "wants to sell a few prints" line is a simple lie, intended to discourage the model asking for a cut of any future licensing fee/deal.

It's not like it's unknown for photographers to try pulling sneaky shit like this, on models.

I was thinking the same thing, Phil, so I just addressed that issue in my reply above.
Thanks for bringing it up!

- Phil H - wrote:
Of course it's equally possible that the photographer knows all this and is seeking a release with the specific intent of licensing the images commercially. Or, that the "wants to sell a few prints" line is a simple lie, intended to discourage the model asking for a cut of any future licensing fee/deal.
It's not like it's unknown for photographers to try pulling sneaky shit like this, on models.

That was my thought--There is so little market for prints (other than to the family and friends of the model or the photographer) generally that it just doesn't seem worthwhile.

Nichole Hopkins wrote:
For some context, the photos were taken in California, not NY. I dunno if the law changes anything....

I'm not trying to be "money grubbing and difficult". I don't care so much about the monetary difference as the fact that this guy is so confident he can just sell my pics. I asked him to show me which he wanted to sell and he hasn't :-/
I am trying to figure out what's up before I just sign off.

He's so confident because he can. IF he's selling individual (art) prints that are for the buyers personal use (hanging, et. al.). No release required.

Darren Brade wrote:
Since you gave him a student rate, why not just charge him the difference to sign the release.

I'm at a loss why you're not using your business head?

Light and Lens Studio wrote:
+1

The quote above is the best advice you've gotten in this thread.

Personally, I think that's the worst advice in the thread for reasons that I've stated.
Sorry.

SayCheeZ!  wrote:
If the photos are used for any commercial reason (like a display for retail promotion) then it's really up to the people creating the display to obtain a release.  It's really that simple.

I wish it were that simple. Did you watch the video I referred to earlier? Here it is again: The Grid: The Grid: Copyright Q and A – Episode 181. Although the title is about copyright, it also discusses model releases, which, as we know, is different from copyright. It's a long video, so to save you some time, pay special attention from about 43:00 to 45:00 minutes, a two minute duration. It's about a person from Africa whose photograph was used at Bloomingdale's in New York City. Using your comment above, the photographer ought to have been free and clear. He wasn't.

My prior comment still stands, too: "There might be other considerations, such as tort of contractual interference. The two parties agreed to one course of action and now a different course of action is being contemplated or completed."

Anyway, since neither of us are lawyers and have voiced our opinions, we probably don't have much more to add. A real attorney should be consulted if the OP is so inclined.

Peace, love, understanding and all that good stuff.

Rays Fine Art wrote:

That was my thought--There is so little market for prints (other than to the family and friends of the model or the photographer) generally that it just doesn't seem worthwhile.

A framed print of mine sold for $400 at a co-op gallery by a complete stranger who didn't know me or the photographer. I got nothing from the sale and I never signed a release. Not only that but it was a TF shoot. Prints CAN sell, especially nice nudes.

SayCheeZ!  wrote:
If the photos are used for any commercial reason (like a display for retail promotion) then it's really up to the people creating the display to obtain a release.  It's really that simple.

Stecyk wrote:
I wish it were that simple. Did you watch the video I referred to earlier? Here it is again: The Grid: The Grid: Copyright Q and A – Episode 181. Although the title is about copyright, it also discusses model releases, which, as we know, is different from copyright. It's a long video, so to save you some time, pay special attention from about 43:00 to 45:00 minutes, a two minute duration. It's about a person from Africa whose photograph was used at Bloomingdale's in New York City. Using your comment above, the photographer ought to have been free and clear. He wasn't.
.

Without knowing more details, it's impossible to tell if the photographer is 'free and clear' or not.

When he licensed the image to the company did he say or imply that he has a release?  Did he forge a release? Maybe he just decided not to get his client involved and covered the payment for them.  Too many unknown variables to draw a conclusion as to who was at fault.

Think of it this way:
  A model hires you to do a portrait 'for her husband'.  Somehow it ends up on a box cover for hair dye. Who is liable for using your copyrighted image without license?  If the model simply said to the company "yes, you can use my image" or "yes, you can use my image but you also have to get permission from the photographer" there would be no reason to hold her accountable and/or to sue her.  The liability would fall on the company.and/or the associated agencies.

If she somehow said or even implied that the photographer gave her license or permission, then she would at least be partially liable.

If you went up to her and said "Hey, I didn't anyone permission to use my image... pay me $100 or I'll sue", it's very possible that the model would pay up without question, whether she was liable or not.  This could be from being guilty as charged, or it could just as easily be from not knowing the law her or rights as it pertains to the situation, or simply because she doesn't want to get anyone else involved and the price was reasonable enough to quickly settle it.

There's a good chance that the photographer in the video's example was acting in the same manner, but once again, without more information about the situation there are too many variables to draw a conclusion as to who was at fault (the photographer or the product manufacturer)..

-------------------------------------------------------------------

As a side note the guys in the video also discussed how to 'trick' a model into signing a release.
While the reason for them teaching that may be for legitimate reasons (like expediting the legal paperwork in a quick and efficient manner), to me it puts them in a negative light.

SayCheeZ!  wrote:
Without knowing more details, it's impossible to tell if the photographer is 'free and clear' or not.

When he licensed the image to the company did he say or imply that he has a release?  Did he forge a release? Maybe he just decided not to get his client involved and covered the payment for them.  Too many unknown variables to draw a conclusion as to who was at fault.

Regardless of where this discussion ultimately ends up, I appreciate your discussion. You stick to the discussion at hand, and don't resort to being nasty as I often see on MM. So thanks.

You're right, we don't know all the facts or complete background. We are working with incomplete information, just as we are working with incomplete information with regard to the OP's photographer. However, in this video instance, the photographer was the one that foot the bill. Thus, the photographer isn't free and clear. As we know, typically in lawsuits, you name everyone.

When he licensed the image to the company did he say or imply that he has a release? Great question. Offhand, you'd think that Bloomingdale's would want a copy of the release for their records. Like you, I am curious what actually took place.

Did he forge a release? Unlikely, as that would go from a civil issue to a criminal issue. Had their been criminal activity, I suspect that would have been made known.

Maybe he just decided not to get his client involved and covered the payment for them? Very few of us ever cover for someone else when we have no obligation to do so, especially when big dollars are involved. A lunch, sure. Several (tens or more) thousand dollars, no. Would you cover for your client if they screwed up? If I weren't at fault and my client had bigger shoulders than I do to shoulder the burden, there's no damn way I would cover for them. Let them learn from their mistake. Put differently, Bloomingdale's has a much larger profit pool from which to pay for the infraction than does the photographer.

For what it is worth, I don't recall the folks in the video suggesting to "trick" models into signing releases. If they did suggest "tricking" models, then I agree. One should be upfront and honest. It's always the best policy. One, however, need not make a bigger deal out the model release than it is. Either the person is willing to sign the release or isn't.

Nichole Hopkins wrote:
For some context, the photos were taken in California, not NY. I dunno if the law changes anything....

I'm not trying to be "money grubbing and difficult". I don't care so much about the monetary difference as the fact that this guy is so confident he can just sell my pics. I asked him to show me which he wanted to sell and he hasn't :-/
I am trying to figure out what's up before I just sign off.

Ok let me get this, he paid you for some lifestyle shots, he can sell them, but you want to charge him a higher rate? Nothing money grubbing about that.

SayCheeZ!  wrote:
In the USA, a photographer doesn't need to have a release to sell their own photos.
http://www.danheller.com/model-release.html

Photography business analyst Dan Heller has written a helpful post in which he busts common misconceptions photographers in the US have about model releases. A big one is that you need to first obtain a model release before selling photos of people.

Dan Heller - Checklist for Photographers wrote:
Model Releases are only necessary to publish pictures.
Even then, very specific guidelines are necessary to trigger the need for a release: if the photo suggests someone subscribes to a particular idea, product or service.

It is highly unusual that photographers ever publish images in a manner that requires a model release.
Photographers sell (or license) photos to others who publish those images.

Selling or licensing photos does not require a release.
Such is not a form of publication, nor is it an action that suggests anything about the person in the photo. It is merely a financial transaction.

Placing photos on websites for the purposes of selling them does not require a model release. It is what courts have called a vehicle of information (that the photo is for sale). The buyer of the photo may need a release if and only if the nature of its publication would trigger the need for a release.

Money or profit has nothing whatsoever to do with whether a release is required.
Because the need for a release is only governed by how and whether the person in the photo might be regarded as subscribing to an idea, product or service, it is entirely irrelevant whether money (profit) was made. Similarly, even free uses of photos (or use by non-profits) does not mean that releases are not required. Get the whole idea of money out of your mind...

I am going to jump in here.  Dan Heller is not an attorney.  I have read this and I have also read the written commentary on his book, written by attorneys.  What Dan has said is some of the most misleading information I have ever seen published, and it is wrong.  In California, cases are laced with situations where photographers have been sued because someone else published an image they shot without a release.  Settled law in California is that the act of making the image available to a third party, in and of itself, is publication.  That is what makes it ironic.  Dan Heller relies upon California law for his book, and California law has held exactly the opposite of what he has stated.

There is a well known case in California, "Louder v Compuserve."  In that case a photographer shot images at group shoots without a release the images were provided to Compuserve, who, in turn published them.  In that case, everybody under the sun was sued.  That included Compuserve, the photographer, GO Graphics and a lot more.  Anyone at all, that was anywhere in the distribution scheme, became a party.

What will surprise you is that the causes of action included a lot more than the CC 3344 that Dan cites.  There was invasion of privacy, common law invasion of privacy, separate common law right to privacy issues and a lot more.  All of the causes of action and all of the parties where sustained during the law and motion portion of the trial.  In other words, despite what Dan has said, the court found it proper to name the photographer.

The case eventually settled for about $650.000.   If you want a good source for reliable information, read legal blogs and sites, not those written by photographers.  Two good sites are "thecopyrightzone.com" and 'photoattorney.com."  They are run by Ed Greenberg and Carolyn Wright, respectively.  I have a lot more faith in the legal teachings of a respected attorney than that from a photographer that gets it wrong.

GPS Studio Services wrote:

I am going to jump in here.  Dan Heller is not an attorney.  I have read this and I have also read the written commentary on his book, written by attorneys.  What Dan has said is some of the most misleading information I have ever seen published, and it is wrong.  In California, cases are laced with situations where photographers have been sued because someone else published an image they shot without a release.  Settled law in California is that the act of making the image available to a third party, in and of itself, is publication.  That is what makes it ironic.  Dan Heller relies upon California law for his book, and California law has held exactly the opposite of what he has stated.

There is a well known case in California, "Louder v Compuserve."  In that case a photographer shot images at group shoots without a release the images were provided to Compuserve, who, in turn published them.  In that case, everybody under the sun was sued.  That included Compuserve, the photographer, GO Graphics and a lot more.  Anyone at all, that was anywhere in the distribution scheme, became a party.

What will surprise you is that the causes of action included a lot more than the CC 3344 that Dan cites.  There was invasion of privacy, common law invasion of privacy, separate common law right to privacy issues and a lot more.  All of the causes of action and all of the parties where sustained during the law and motion portion of the trial.  In other words, despite what Dan has said, the court found it proper to name the photographer.

The case eventually settled for about $650.000.   If you want a good source for reliable information, read legal blogs and sites, not those written by photographers.  Two good sites are "thecopyrightzone.com" and 'photoattorney.com."  They are run by Ed Greenberg and Carolyn Wright, respectively.  I have a lot more faith in the legal teachings of a respected attorney than that from a photographer that gets it wrong.

GPS Studio Services wrote:
... In California, cases are laced with situations where photographers have been sued because someone else published an image they shot without a release...

BeachBoudoir wrote:
The case you cited looks like it falls into commercial use promoting a product. You need a model release.

Selling prints does not require a release nor does using the photographs in an editorial way.

Again, this goes back to intent of use.

Yep.  I don't think anyone, that participated in this thread, myself included, argues that a release isn't needed for publication or commercial use..

GPS Studio Services wrote:
I am going to jump in here.  Dan Heller is not an attorney.  I have read this and I have also read the written commentary on his book, written by attorneys.  What Dan has said is some of the most misleading information I have ever seen published, and it is wrong.  In California, cases are laced with situations where photographers have been sued because someone else published an image they shot without a release.  Settled law in California is that the act of making the image available to a third party, in and of itself, is publication.  That is what makes it ironic.  Dan Heller relies upon California law for his book, and California law has held exactly the opposite of what he has stated.

There is a well known case in California, "Louder v Compuserve."  In that case a photographer shot images at group shoots without a release the images were provided to Compuserve, who, in turn published them.  In that case, everybody under the sun was sued.  That included Compuserve, the photographer, GO Graphics and a lot more.  Anyone at all, that was anywhere in the distribution scheme, became a party.

What will surprise you is that the causes of action included a lot more than the CC 3344 that Dan cites.  There was invasion of privacy, common law invasion of privacy, separate common law right to privacy issues and a lot more.  All of the causes of action and all of the parties where sustained during the law and motion portion of the trial.  In other words, despite what Dan has said, the court found it proper to name the photographer.

The case eventually settled for about $650.000.   If you want a good source for reliable information, read legal blogs and sites, not those written by photographers.  Two good sites are "thecopyrightzone.com" and 'photoattorney.com."  They are run by Ed Greenberg and Carolyn Wright, respectively.  I have a lot more faith in the legal teachings of a respected attorney than that from a photographer that gets it wrong.

.
Something from the copyright zone:
"So few photographers actually register their work and are prepared to sue when infringed, that the odds are simply heavily in favor of the thieves. You can’t therefore, blame ’em for trying to get something for nothing."
http://thecopyrightzone.com/?p=1444


and from photoattorney.com
Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office’s Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions.

“The doctrine of fair use has been an essential aspect of our copyright law for nearly 175 years,” said Pallante



Thanks for posting those links again, each time this subject comes up!

SayCheeZ!  wrote:
Yep.  I don't think anyone, that participated in this thread, myself included, argues that a release isn't needed for publication or commercial use..

Light and Lens Studio wrote:

+1

The quote above is the best advice you've gotten in this thread. 

Generally, ignore online legal advice from non-attorneys, particularly if they are not US Citizens and probably not familiar with US law.  This is a usage issue, not a copyright issue.  The photographer owns the copyright regardless of whether there was a model release signed.   Unauthorized publication of your likeness comes under a whole other section of the law.   

Going to court is expensive and time consuming.  It also can damage your reputation whether you win or lose.  You can quickly spend in excess of $1000 in attorney fees before even going to trial.  Is there that much at stake?

I actually DID ask him for this, but then he said that he didn't need a release from me after all, and therefor wont pay the difference. It isn't much, just rather insulting.