Jhono Bashian wrote:
Photo 101   always get a model release signed..  no excuses, that way your not chasing your tail in circles.  You just might of lost the ability to post/sell/display those images that are free and clear without threat of any possible infringement or liability.  Good luck!!

All my larger camera bags have 3 releases in them and if, for whatever reason I can't find them or I need a fourth release, etc., I have an app in my phone as an emergency backup. I've learned the hard way, like the OP is now, that chasing down models to get releases signed is a royal pain in the ass so not packing releases for me is tantamount to not packing a camera body.

Modelphilia wrote:
The models are naive enough that when they were later informed of the problem by my friend, they told him that they "don't mind" not having releases.

Experiences to relate?

They are not naive. Having a model release benefits you, not them.  They have no reason to care about your need for a model release.

If I were in that situation, I would stick to whatever terms were discussed.  If you did not tell them ahead of time you required a release, then you should not withhold promised images as a means to obtain releases.   If you told them you require a signed release prior to providing them images, then yes, don't provide the images until you get the releases.

Modelphilia wrote:
I just hosted and shot over the weekend with a couple of visiting European models, and for the first time forgot to get the model-releases signed at the shoots. They are leaving the island shortly, and have no internet service where they are staying, so it may hot happen while they are still here. My inclination would be to require the releases before sending them any photos.

Other than possible print sales though, I doubt the images will be used  _by me_ for anything any more commercial than that. However, if this doesn't get done in the end, what might the potential legal consequences be for me or for them if I send them photos, or want to post or print some myself,  and if they are later misappropriated and used commercially by someone else? The photos are pretty much "G-Rated"

The models are naive enough that when they were later informed of the problem by my friend, they told him that they "don't mind" not having releases.

Experiences to relate?

Random thought . . . . . were they legally entitled to work in the US or visiting under the Visa Waiver program?

If the latter, not sure if it would be the smartest idea, them agreeing to sign or you having, a model release stating they worked with/for you.

chiamac wrote:
I wouldn't worry about it.

I had a model go crazy after seeing a few images of her on my web sit. She ended up hanging up on me after I told her to take down the images from her web site that I took of her! "Click" Was the end of that.

Modelphilia wrote:
I just hosted and shot over the weekend with a couple of visiting European models, and for the first time forgot to get the model-releases signed at the shoots. They are leaving the island shortly, and have no internet service where they are staying, so it may hot happen while they are still here. My inclination would be to require the releases before sending them any photos.

Other than possible print sales though, I doubt the images will be used  _by me_ for anything any more commercial than that. However, if this doesn't get done in the end, what might the potential legal consequences be for me or for them if I send them photos, or want to post or print some myself,  and if they are later misappropriated and used commercially by someone else? The photos are pretty much "G-Rated"

The models are naive enough that when they were later informed of the problem by my friend, they told him that they "don't mind" not having releases.

Experiences to relate?

There are two separate, but important, questions: "What does the law say?" and "What is the real world risk?"

If you have few personal/business assets you likely can get away with using the images without required permission.  You aren't worth suing.

Now let's look at the law.  The laws governing releases vary from state to state.   Let's assume your business is limited to Hawaii, your web site is hosted in Hawaii, and all your potential clients are in Hawaii.  In this case you only need to worry about Hawaii.   If your web server was in another state, or you are trying to attract customers in other states who are coming to Hawaii, you might need to worry about the laws in all 50 states.

Hawaii state law recognizes a right to publicity.  This means you need a person's consent in order to use their likeness on products, to advertise goods/services, or even to raise money for a worthwhile charity.

Thus the law requires permission in order to use someone's likeness on your website to advertise/promote your photography business.

You likely don't need permission in order to sell art prints (less than 5 copies per Hawaiian law), but you probably need consent to use their likeness on a product (i.e. a calendar).


It is the user of the image that needs consent, not the photographer.  Thus, if someone misappropriates an image and uses it for advertising, they would have exposure to the model for not having a release, and exposure to the photographer for a copyright violation.


So we are back to the question of whether or not you need a release for your specific purposes.  No one here has enough information to answer that question, you should speak to a lawyer for a reliable answer.  What we can speak to are the generalities of the situation, and the questions you may wish to ask your attorney.

Are you going to use the images on your web site?  If so, how will they be used?  If they are being used to promote or advertise your business, then you likely need consent.

If you are selling prints, are you selling "art prints" or a product?  Art prints may not require a release, if you are using the model's likeness on a product you probably should have one.   If you sell too many "art prints", they may no longer be "art" and might become a "product" (which requires consent).

Hawaiian law allows the model to collect the greater of $10,000 or actual damages, plus attorney's fees.   If you don't have consent, she can sue and possibly win.  If you lose, you pay her $10K and you pay her attorney's fees.

Hawaiian law does allow "implied consent".  It is possible that consent was given during your pre-shoot communications with the models.


Now, lets be realistic.  The models are from Europe.  They likely don't care that you will be using their image on your website.  If they don't complain, it likely won't be an issue that you don't have a release. 

Let's look at print sales.  If you are making a few hundred bucks, the model will likely not know or care.  If you start to make hundreds of thousands of dollars, then the models may very well take an interest, and you might have a real problem.


My guess is that you are not famous, and you won't make a lot of money selling prints of these models.  My guess is that an attorney would advise you to try to obtain consent via email.  I suspect that even without an email confirmation of consent, he would advise you that this isn't an issue big enough for you to worry about.


Disclaimer: I am not an attorney, and you should not rely on anything I say.  For reliable legal advice consult an attorney.

- Phil H - wrote:

Random thought . . . . . were they legally entitled to work in the US or visiting under the Visa Waiver program?

If the latter, not sure if it would be the smartest idea, them agreeing to sign or you having, a model release stating they worked with/for you.

The work visa issue is relevant to whether or not the model was "working".  A foreigner does not need a work visa to volunteer to pose for a photographer.

The "Consent" issue is relevant whether or not the model was working or volunteering.

Imagine that you shot a photo of a tourist on the beach wearing a bikini.  The manufacturer of the bikini sees the image and wants to use the photo in an advertisement.   A model release from the tourist would be in order.  As the tourist was not compensated for the shoot, the tourist would not need a work visa.

GER Photography wrote:
Why not make it the first thing you do before the model even changes her clothes. No sign-y, no click-y!!:-)

With due respect, I hate seeing this response to threads like this.

This response does not address his questions and is something he said that he normally does.  So are you saying that if you got to the location for a shoot planned for weeks, and the ONE thing you forgot at this shoot was your releases, then you would simply cancel the shoot??

Ok, dude.

Michael Fryd wrote:
The work visa issue is relevant to whether or not the model was "working".  A foreigner does not need a work visa to volunteer to pose for a photographer.

The "Consent" issue is relevant whether or not the model was working or volunteering.

Imagine that you shot a photo of a tourist on the beach wearing a bikini.  The manufacturer of the bikini sees the image and wants to use the photo in an advertisement.   A model release from the tourist would be in order.  As the tourist was not compensated for the shoot, the tourist would not need a work visa.

There are many misconceptions surrounding the conditions under which one can travel as part of the Visa Waiver Program, particularly when it comes to working. One of the more common misconception, is that one can "volunteer" and it's legit as long as no compensation is sought or received by the traveler.
It's simply not true. The rules are very specific in that they prohibit anything that could be considered as work, be it paid or unpaid. As for the "volunteered" angle, you can bet your bottom dollar that US Immigration have heard that excuse trotted out (and rejected it) on an almost daily basis.

There's also this small but important point. Most model releases, particularly those of a non limited nature, state something along the lines of "In return for valuable consideration" or some similar terminology. Terminology, that is specifically intended to imply the model is providing her services as such, in return for compensation of some kind.

Any such wording in a written form such as a model release, along with any such exchange or trade of services, would be seen as indicative that said arrangement between model and photographer, was a "working" arrangement. As such, any "volunteered" type defense, would likely be rejected out of hand, as the paper trail would clearly suggest otherwise.

Hence my thought, if the models were working whilst travelling on the VWP (and lets face it, chances are they were and that they got compensated in some form, for doing so), would it be wise for the photographer to create a paper trail, suggesting he might have "employed" them illegally?

Good Egg Productions wrote:

With due respect, I hate seeing this response to threads like this.

This response does not address his questions and is something he said that he normally does.  So are you saying that if you got to the location for a shoot planned for weeks, and the ONE thing you forgot at this shoot was your releases, then you would simply cancel the shoot??

Ok, dude.

The solution to the problem is prevention.  How many times a year do we see this same post?  Behavior changes are more likely when you get in someone's face during the crisis.  Drive home the point of being responsible, every shoot.  That's setting people up for success.  All of the other responses, 'don't worry bout it dude', 'oh, it probably won't matter' set people up for failure. 
When I was new the #1 most consistent piece of advice was get the Release signed before taking your camera out of the bag; Amen.  These threads are read by lots of people.  We have no idea how many times we help others avoid that problem by repeating the message.  It is about sharing our learning, right?  Like the suggestion about putting a few copies of a release in your camera bag.  Muy Bueno.   That may help a lot more people than all the comments about what to do after the fact.  How about a few copies in your glove box?

- Phil H - wrote:

There are many misconceptions surrounding the conditions under which one can travel as part of the Visa Waiver Program, particularly when it comes to working. One of the more common misconception, is that one can "volunteer" and it's legit as long as no compensation is sought or received by the traveler.
It's simply not true. The rules are very specific in that they prohibit anything that could be considered as work, be it paid or unpaid. As for the "volunteered" angle, you can bet your bottom dollar that US Immigration have heard that excuse trotted out (and rejected it) on an almost daily basis.

There's also this small but important point. Most model releases, particularly those of a non limited nature, state something along the lines of "In return for valuable consideration" or some similar terminology. Terminology, that is specifically intended to imply the model is providing her services as such, in return for compensation of some kind.

Any such wording in a written form such as a model release, along with any such exchange or trade of services, would be seen as indicative that said arrangement between model and photographer, was a "working" arrangement. As such, any "volunteered" type defense, would likely be rejected out of hand, as the paper trail would clearly suggest otherwise.

Hence my thought, if the models were working whilst travelling on the VWP (and lets face it, chances are they were and that they got compensated in some form, for doing so), would it be wise for the photographer to create a paper trail, suggesting he might have "employed" them illegally?

Clearly this is a complicated matter. 

Certainly there are circumstances where a foreigner can be in a photo without it being a visa violation.   For instance the example of a photographer shooting a random tourist on the beach, and then approaching that tourist for a release to allow commercial use of the image.

The fact that a foreigner receives money is not necessarily a visa problem.  For instance it is not a visa violation for a tourist to win at black jack in a Vegas casino.   


Let's suppose the photographer gives the foreigner $10 for signing the release.   Even this may not be a visa issue.   The foreigner is not being paid for modeling (that might be work),  the foreigner is being paid to waive certain rights.  This is not generally considered work.


As to the OP's situation, if the models were in fact professional models, then it may be difficult to convince the feds that they were not "working" when they were posing.  On the other hand, if they are in the US working as au pairs, then you might be able to make a convincing argument that they were posing for fun.   You might even be able to make the case that the au pairs had hired the photographer, and he had given them a $10 discount in exchange for the release.


The important point is that work visas are a complicated topic.  A work visa may be limited to working for certain employers.  Someone who is allowed to work for one employer may not be allowed to work for another.

Good Egg Productions wrote:

With due respect, I hate seeing this response to threads like this.

This response does not address his questions and is something he said that he normally does.  So are you saying that if you got to the location for a shoot planned for weeks, and the ONE thing you forgot at this shoot was your releases, then you would simply cancel the shoot??

Ok, dude.

There's always some kind of office supply store around, download one and print it. Where there's a will, there's a way.

Michael Fryd wrote:

Clearly this is a complicated matter. 

Certainly there are circumstances where a foreigner can be in a photo without it being a visa violation.   For instance the example of a photographer shooting a random tourist on the beach, and then approaching that tourist for a release to allow commercial use of the image.

The fact that a foreigner receives money is not necessarily a visa problem.  For instance it is not a visa violation for a tourist to win at black jack in a Vegas casino.   


Let's suppose the photographer gives the foreigner $10 for signing the release.   Even this may not be a visa issue.   The foreigner is not being paid for modeling (that might be work),  the foreigner is being paid to waive certain rights.  This is not generally considered work.

Yes - this is the right way to argue this one I think. You've be hard pressed to run that with eg the ASMP release though "In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received," - ENGAGEMENT - ouch!. So this is going to depend on what the exact wording of the release says. You may be able to argue your way out of it in curt - but prima facie you're in hot water I think.

As to the OP's situation, if the models were in fact professional models, then it may be difficult to convince the feds that they were not "working" when they were posing.  On the other hand, if they are in the US working as au pairs, then you might be able to make a convincing argument that they were posing for fun.   You might even be able to make the case that the au pairs had hired the photographer, and he had given them a $10 discount in exchange for the release.


The important point is that work visas are a complicated topic.  A work visa may be limited to working for certain employers.  Someone who is allowed to work for one employer may not be allowed to work for another.

Virtual Studio wrote:
...Yes - this is the right way to argue this one I think. You've be hard pressed to run that with eg the ASMP release though "In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received," - ENGAGEMENT - ouch!. So this is going to depend on what the exact wording of the release says. You may be able to argue your way out of it in curt - but prima facie you're in hot water I think.
...

The ASMP has multiple model releases.  The language you quoted is from the released intended to be used when you hire a model for a commercial shoot.   Many of the ASMP releases for other situations use the phrase "For valuable consideration received, ..."

So yes, if the model release has language that ties the release to engagement for modeling, then you may very well have an issue.

Of course, If I were shooting foreign students who were just having fun (i.e. not "working" as a model), I wouldn't use a release intended for a working model.

I think the bottom line is that US visa laws are complicated.  Without knowing a whole bunch of specifics of the situation, we cannot even make informed speculation as to whether or not a violation has occurred.

That being said, I would be very surprised if the OP's situation rose to the level where anyone in law enforcement or immigration would take notice.

GER Photography wrote:
There's always some kind of office supply store around, download one and print it. Where there's a will, there's a way.

Sure. I suppose that with my bad-knee, I could have climbed back up the cliff from the remote beach we were on, gotten in my car and driven the 15 miles of winding roads to the closest town (a little village really) and then done as you suggest. Except that the store would have been closed by then, the daylight gone.

You really do need to "get out more" and realize that the world is a lot bigger than Imperial, CA and that many places are much more remote than you might find there. Perspective my friend, perspective ...something that's hard to gain when staying close to home.

As for the rest pif the discussion here, y'all are getting into some remote territory with respect to the original post, and with respect to the likelihood of my ever having encountered any real problems resulting from my faux-pas, but glad to see that your minds are working in all sorts of ways around these matters.

The problem has been almost solved at this point. The models are currently on-board a plane back to the mainland, with a digital copy of my ASMP-based release having been delivered by email last night, and will print out two copies, sign them, and mail them to me.

Rave on . . .