MeehanPhotography wrote:
So I myself an a photographer and I started using my wife as a model. She made a profile on here and has done some shoots. Mostly tfp. My question is this? What compensation should she have put in the contract if the photographer sells the photos from a tfp for monetary gain? Any? Credit? Etc.

Presumably she got photographs as compensation?

Kent Art Photography wrote:
Presumably she got photographs as compensation?

Photographs as the only compensation is typically the agreement for non-commercial use. Generally in TFP the photographer's compensation is photographs as well--hence why it's considered a trade.

If the photographer intends to use the photos he took in a TFP for commercial purposes (i.e. selling them) then he should get the model to sign a release to that effect...if the model agrees to the use of her image for the photographer's profit with no further compensation to him/her, then okay. But when you start making money off something that features another person it becomes more complicated. "Photographs as compensation" is a safe assumption only when there is mutual non-commercial usage in both parties.

MeehanPhotography wrote:
So I myself an a photographer and I started using my wife as a model. She made a profile on here and has done some shoots. Mostly tfp. My question is this? What compensation should she have put in the contract if the photographer sells the photos from a tfp for monetary gain? Any? Credit? Etc.

The simplest answer to your questions is: what did she want in exchange for her services as a model? Because that is what she should have put in the contract.

On a different note you seem bothered that the photographer may have profited from his exchange with your wife. What if he took a loss?

CamelliaFlower wrote:

Photographs as the only compensation is typically the agreement for non-commercial use. Generally in TFP the photographer's compensation is photographs as well--hence why it's considered a trade.

If the photographer intends to use the photos he took in a TFP for commercial purposes (i.e. selling them) then he should get the model to sign a release to that effect...if the model agrees to the use of her image for the photographer's profit with no further compensation to him/her, then okay. But when you start making money off something that features another person it becomes more complicated. "Photographs as compensation" is a safe assumption only when there is mutual non-commercial usage in both parties.

Well, all that depends on what value you put on the photos received as part of a TFP deal.  Signing or not signing a model release is a completely different matter.

Kent Art Photography wrote:
Well, all that depends on what value you put on the photos received as part of a TFP deal.  Signing or not signing a model release is a completely different matter.

Yes, the photos procured from the shoot may have different amounts of usefulness/value to each party, but that doesn't mean that just because a photo itself is "less valuable" to one party, it gives them leave to freely profit from the photo via sales without the other party's consent.

Signing a model release is relevant in this context because if the original agreement between the photographer and model was NOT that one party would be permitted to make money off the images produced, then there is potentially grounds for messy legal battles.

MeehanPhotography wrote:
So I myself an a photographer and I started using my wife as a model. She made a profile on here and has done some shoots. Mostly tfp. My question is this? What compensation should she have put in the contract if the photographer sells the photos from a tfp for monetary gain? Any? Credit? Etc.

Most photographers, myself included, do not limit their usage of their copyrighted images.  If I sell or license an image for $$$, I get to keep said $$$.  (I'll note that I usually pay models; I rarely do TF*).  Other photographers may promise not to sell/license a TF* image -- that's their choice.

Bottom line:  The terms of the agreement between a photographer & a model is their business & no one else's.

CamelliaFlower wrote:
Yes, the photos procured from the shoot may have different amounts of usefulness/value to each party, but that doesn't mean that just because a photo itself is "less valuable" to one party, it gives them leave to freely profit from the photo via sales without the other party's consent.

Signing a model release is relevant in this context because if the original agreement between the photographer and model was NOT that one party would be permitted to make money off the images produced, then there is potentially grounds for messy legal battles.

Ok, although I pretty much agree with your first post here - you want to be careful about equating "making money off them" and the need for a release.

For models, releases have value - in many respects, one can say that what a photographer is paying for is the release as opposed to the modeling - because in the real world, model fees are based on usage (heavily weighted) combined with time.

J O H N  A L L A N wrote:
Ok, although I pretty much agree with your first post here - you want to be careful about equating "making money off them" and the need for a release.

For models, releases have value - in many respects, one can say that what a photographer is paying for is the release as opposed to the modeling - because in the real world, model fees are based on usage (heavily weighted) combined with time.

Definitely not saying this is the ONLY situation where a release should be signed, just that this is one such situation where it happens they should have.

CamelliaFlower wrote:

Definitely not saying this is the ONLY situation where a release should be signed, just that this is one such situation where it happens they should have.

Yes - I realize that - I was just cautioning readers not to equate "making money off of" with the requirement for a release. Making money off an image doesn't necessarily constitute commercial use that would require a release.

J O H N  A L L A N wrote:

Yes - I realize that - I was just cautioning readers not to equate "making money off of" with the requirement for a release. Making money off an image doesn't necessarily constitute commercial use that would require a release.

I mention profiting off the photos only because it's relevant to OP's specific situation, and the other person was saying the photos alone may not be equal compensation for both parties...seeming to me they were implying it was fair for one party to receive monetary gain from the image if it wasn't as useful an image for them in terms of artistic merit, and the other party received sufficient compensation in the form of just the images.

Kent Art Photography wrote:
The portfolio mills in London regularly get away with charging thousands of pounds for model portfolios of dubious quality.

Assuming that a TFP shoot with me, as I am able to produce photos of much the same sort of quality as the portfolio mills, would be worth a similar amount to a model, I would have to have some big sales from the session to exceed the value of the photos I provided to the model, and therefore feel the need to compensate the model further.

Okay, in the real world, the value of shots from a TFP photo session would be difficult to assess, because it depends on how useful the model finds the pics, but it should not be assumed that the photos provided to a model after a TFP session are of such low worth that the model must automatically be compensated financially if the photographer manages to recoup some of his investment in the session by selling some pics.

You're missing the point entirely. Regardless of what opinion YOU have about your work, if there is intention to profit from the model's image without compensating the model then generally this is something that needs to be hashed out and indicated in a model release. Otherwise the model could potentially have legal grounds to claim a portion of your profits. You can cry all you like that your images are compensation enough and that they aren't entitled to any additional profit you might make from them, but the legal system may not see it that way.

And since we're on the subject, you say it shouldn't be assumed the model finds the images useless enough to "deserve" a portion of the profit. Why the assumption that the *photographer* is the one that will find the images so worthless that they would need to "recoup investment"? What if the images ARE useful to both parties' portfolios and there is no "loss" on the photographer's end? Would the model "deserve" a portion of the earnings from the sales then?

MeehanPhotography wrote:
So I myself an a photographer and I started using my wife as a model. She made a profile on here and has done some shoots. Mostly tfp. My question is this? What compensation should she have put in the contract if the photographer sells the photos from a tfp for monetary gain? Any? Credit? Etc.

If the intent is to sell the photos, the photographer should hire and pay the model accordingly. The "how much" and all that is good for  a forty page thread and depends on an assload of variables that should all be figured out BEFORE the session.

Doing a trade session and deciding afterwards to sell them is, in my book, bullshit.

But the reality is, if any of these photos you are speaking of actually sell, I'd guess it won't be for an earth shattering amount.

CamelliaFlower wrote:

You're missing the point entirely. Regardless of what opinion YOU have about your work, if there is intention to profit from the model's image without compensating the model then generally this is something that needs to be hashed out and indicated in a model release. Otherwise the model could potentially have legal grounds to claim a portion of your profits. You can cry all you like that your images are compensation enough and that they aren't entitled to any additional profit you might make from them, but the legal system may not see it that way.

And since we're on the subject, you say it shouldn't be assumed the model finds the images useless enough to "deserve" a portion of the profit. Why the assumption that the *photographer* is the one that will find the images so worthless that they would need to "recoup investment"? What if the images ARE useful to both parties' portfolios and there is no "loss" on the photographer's end? Would the model "deserve" a portion of the earnings from the sales then?

Oh, well, I'm glad you have such a firm grasp of these things.

J O H N  A L L A N wrote:

Yes - I realize that - I was just cautioning readers not to equate "making money off of" with the requirement for a release. Making money off an image doesn't necessarily constitute commercial use that would require a release.

Yes, in fact, Camellia's home state has some case law on that subject... no notice, no release, no consent, big money- the court found for the photographer. Free speech monetized is still free speech, at least within certain limitations.

NewBoldPhoto wrote:
Yes, in fact, Camellia's home state has some case law on that subject... no notice, no release, no consent, big money- the court found for the photographer. Free speech monetized is still free speech, at least within certain limitations.

I'm not stating it's a given that the model would be awarded monetary compensation. I'm saying that as a photographer it's not a risk I would want to take--I'd have my models sign a release form for my own security, because I don't want the mess of dealing with court in the first place. Why not avoid the ordeal in the first place.

CamelliaFlower wrote:

You're missing the point entirely. Regardless of what opinion YOU have about your work, if there is intention to profit from the model's image without compensating the model then generally this is something that needs to be hashed out and indicated in a model release. Otherwise the model could potentially have legal grounds to claim a portion of your profits. You can cry all you like that your images are compensation enough and that they aren't entitled to any additional profit you might make from them, but the legal system may not see it that way.



And since we're on the subject, you say it shouldn't be assumed the model finds the images useless enough to "deserve" a portion of the profit. Why the assumption that the *photographer* is the one that will find the images so worthless that they would need to "recoup investment"? What if the images ARE useful to both parties' portfolios and there is no "loss" on the photographer's end? Would the model "deserve" a portion of the earnings from the sales then?

Simple answer is no.  I'm not sure you are clear about "commercial use" by a photographer requiring a release.

While I agree a release should be  signed, selling images of a model at an exhibition does not necessarily constitute commercial use.

Risen Phoenix Photo wrote:
Simple answer is no.  I'm not sure you are clear about "commercial use" by a photographer requiring a release.

While I agree a release should be  signed, selling images of a model at an exhibition does not necessarily constitute commercial use.

The second portion of this post wasn't regarding commercial usage of the photo, it was only a response to Kent's assertion here:

it should not be assumed that the photos provided to a model after a TFP session are of such low worth that the model must automatically be compensated financially if the photographer manages to recoup some of his investment in the session by selling some pics.

This is just an off-tangent discussion from the OP about the "worth" of the photos from a TFP, that he claimed that the images produced from a TFP shoot don't always hold equal value for both parties, and that the photographer was justified in not compensating the model if he receives monetary gain from the sale of the image because he was "recouping" the investment, implying the photographer is the one who receives a "loss".

So I'm questioning what the stance should be if the TFP is an equal trade for both parties. This discussion was really more of an ethical debate than a legal one though.

I am clear in my understanding of "commercial usage". We don't know the conditions under which the OP's (hypothetical?) scenario is under, and nowhere was it stated that the images were sold were for an exhibition--that's your assumption.

In my original post, I said explicitly that if it were sold "for commercial purposes" the model could be entitled to compensation, not that if it was sold under any circumstances.

CamelliaFlower wrote:
The second portion of this post wasn't regarding commercial usage of the photo, it was only a response to Kent's assertion here:


This is just an off-tangent discussion from the OP about the "worth" of the photos from a TFP, that he claimed that the images produced from a TFP shoot don't always hold equal value for both parties, and that the photographer was justified in not compensating the model if he receives monetary gain from the sale of the image because he was "recouping" the investment, implying the photographer is the one who receives a "loss".

So I'm questioning what the stance should be if the TFP is an equal trade for both parties. This discussion was really more of an ethical debate than a legal one though.

I am clear in my understanding of "commercial usage". We don't know the conditions under which the OP's (hypothetical?) scenario is under, and nowhere was it stated that the images were sold were for an exhibition--that's your assumption.

In my original post, I said explicitly that if it were sold "for commercial purposes" the model could be entitled to compensation, not that if it was sold under any circumstances.

You seem to be asking about a hypothetical situation in which two individuals of ideally equal level come together to produce a miraculous product that will be equally valuable to both parties. But beyond that  when all the accounting is finished both humans are going to feel like the arrangement was perfectly equitable. Is that what you are asking about?

NewBoldPhoto wrote:
You seem to be asking about a hypothetical situation were two individuals of ideally equal level come together to produce a miraculous product that will be equally valuable to both parties. But beyond that  when all the accounting is finished both humans are going to feel like the arrangement was perfectly equitable. Is that what you are asking about?

Essentially. The mythical perfect TFP shoot.

I'm only posing the scenario as a hypothetical for the sake of discussion (because I think it's an interesting one). The other scenario proposed earlier in the thread was that the images alone were *not* of equal value to both parties. So I'm asking, what is the attitude toward the situation if they *were* of equal value?

Again, this is more of an ethical question than a legal one.

CamelliaFlower wrote:
Essentially. The mythical perfect TFP shoot.

I'm only posing the scenario as a hypothetical for the sake of discussion (because I think it's an interesting one). The other scenario proposed earlier in the thread was that the images alone were *not* of equal value to both parties. So I'm asking, what is the attitude toward the situation if they *were* of equal value?

Again, this is more of an ethical question than a legal one.

Got it. So in the world where King stepped to the left and Kennedy took the hard top- where the unicorns fart rainbows and after a tf shoot I don't wish I had simply handed the model my wallet and gone fishing ( I loath fishing)... in that world both parties negotiate what they want out of the deal up front and everyone shows up on time with what they said they would bring and everyone works super hard and no one shoots up in bathroom and the resulting images are of the highest quality. They are delivered on time and no one fucks with the colors or contrast after the fact and they (the images) propel everyone involved in the shoot up the ladder of success. And if they are sold then they become tears and the photographer lets the others involved know so they can get theirs and no one fucks that up by submitting them to every mag rag and e-zine they can find that might be remotely not interested in off topic content lacking authentic paperwork. And everyone is satisfied with what they received as compensation because it is what they asked for but shinier

yeah... so in my world the sky is blue on sunny days iso100 1/60 f16. King took it right in the cheek - Kennedy in the head both dead and TF is (almost- never say never) never between equals

NewBoldPhoto wrote:
and TF is (almost- never say never) never between equals

Not disagreeing with ya. Just saying, I asked for the sake of discussion because it's an interesting topic.

So yes, to you in this unlikely scenario, all parties involved are monetarily compensated for their involvement in the production of this image.

I gave this unlikely scenario just in the interest of being fair to both the model and the photographer. The original scenario assumed the photographer would be the one who was more skilled than the model, and thusly deserved the extra monetary compensation. But the opposite could just as easily be true, and the model isn't in a position to sell the image herself unless she specifically receives the rights to the image.

NewBoldPhoto wrote:
You seem to be asking about a hypothetical situation in which two individuals of ideally equal level come together to produce a miraculous product that will be equally valuable to both parties. ...

There's nothing about any trade/purchase that guarantees both parties benefit from it equally.   Sometimes people or businesses even sell a product at a loss.  I find it interesting how many here feel TF shoots should miraculously be of equal value to both parties, something that is rarely the basis for any trade interaction.  It's also interesting how many people assume that any amount of money a photographer receives from image sales, no matter how small must be wroth more than the value of images received.  Given many studio photographers charge hundreds of dollars for a shoot, I find that very flawed reasoning.  If I shoot someone TF who otherwise would have paid a few hundred dollars for a shoot (which has happened) and I make $100 in stock sales from that shoot, they are clearly the one who is better off financially.

Abbitt Photography wrote:
There's nothing about any trade/purchase that guarantees both parties benefit from it equally.   Sometimes people or businesses even sell a product at a loss.  I find it interesting how many here feel TF shoots should miraculously be of equal value to both parties, something that is rarely the basis for any trade interaction.  It's also interesting how many people assume that any amount of money a photographer receives from image sales, no matter how small must be wroth more than the value of images received.  Given many studio photographers charge hundreds of dollars for a shoot, I find that very flawed reasoning.  If I shoot someone TF who otherwise would have paid a few hundred dollars for a shoot (which has happened) and I make $100 in stock sales from that shoot, they are clearly the one who is better off financially.

No one's saying that a TFP is realistically a completely equal trade; as I've stated, it's a hypothetical ideal, which I only brought up due to the assertion that the value of the images is NOT of equal value (which I didn't disagree is common), as if that weren't obvious already.

And I pose the same question to you--what if it's a situation where the model is the one who should have charged money to work with the photographer? From a real life/legal perspective she's shit outta luck obviously as she doesn't hold copyrights to the image, but would anyone say that on moral grounds she's entitled to a portion of the earnings simply for the sake of goodwill?

I personally feel like she/he should be if they are the main reason for the success of my image but I'm not too prideful to admit that I'm not sure if I'm truly principled enough to offer a significant portion of the earnings under this situation...I'm poor!

AJ_In_Atlanta wrote:
Why do people seek to complicate things that should be simple.  It's more than likely just going to spoil an opportunity.

A trade shoot is a trade, that is the compensation.  Take the offer or not on the present value.  If at some future point the photographer is able to sell their work as well, then they do, but most won't.  Most will however walk away from weird arrangements or perceived drama.

Short answer: People are greedy and can become crazy when money gets involved.

Which is why I'm a fan of release contracts. Makes me feel more comfortable to know that the chances of BS claims are minimized.

CamelliaFlower wrote:
And I pose the same question to you--what if it's a situation where the model is the one who should have charged money to work with the photographer? 

If a model has proven marketability, has no need of images, and can commend pay,  then she (or he) should charge for her services and not accept TF offers.  TF is best suited for models who need experience or need to build their portfolio.   If you don't feel a TF shoot benefits you then don't accept it.  Simple. 

As AJ in Atlanta said, don't make simple things complex.  When it comes to shoots people are free to make any offer they want and the other party is free to accept or reject said offer.  You talk about image usage and litigation in a theoretical (and inaccurate) way, but in reality copyright, usage and rights to one's likeness are known and should be considered by each party as they evaluate the usefulness of a shoot to them.  Again, if you feel it's not a benefit, then decline the offer.

CamelliaFlower wrote:
Which is why I'm a fan of release contracts. Makes me feel more comfortable to know that the chances of BS claims are minimized.

You realize of course that a model release typically gives the photographer and other parties more ability to use your likeness, not less.  You say you think it's wrong for a photographer to make any money from TF shoot, but then you say you prefer to sign a release which gives the photographer more options for making money from said images.  mmmm.

Abbitt Photography wrote:
If a model has proven marketability, has no need of images, and can commend pay,  then she (or he) should charge for her services and not accept TF offers.  TF is best suited for models who need experience or need to build their portfolio.   If you don't feel a TF shoot benefits you then don't accept it.  Simple. 

As AJ in Atlanta said, don't make simple things complex.  When it comes to shoots people are free to make any offer they want and the other party is free to accept or reject said offer.  You talk about image usage and litigation in a theoretical (and inaccurate) way, but in reality copyright, usage and rights to one's likeness are known and should be considered by each party as they evaluate the usefulness of a shoot to them.

I actually agree with you on the first part, but until you actually work with a person it isn't always clear what the extent of their true abilities are. Models can have particularly good sessions and photographers can have particularly weak sessions, and vice versa. A model could think that a shoot with a particular photographer would benefit them but the resulting images are disappointing and not comparable to the work in the rest of their port.

Could you point out to me where I made a statement about litigation and image usage inaccurately? The only thing I said was that it's risky to sell an image in a commercial capacity without first obtaining a model release, and I'd just feel more comfortable obtaining one for the sake of covering my ass if I were the photog, no matter the situation. I didn't state anywhere that any type of sale of an image at all was equivalent to commercial use.

And you state that "in reality rights are known (paraphrased) and should be considered by each party as they evaluate the usefulness of a shoot to them", but in my opinion this too is an idealism--like I said, it's impossible to be certain of the outcome of a shoot, and something could come out much better or much more poorly than either party anticipates. And if people were always clear on the terms of the shoot then there wouldn't be so many pointless and failed litigation attempts.

I don't think it is necessarily a waste of time to discuss hypothetical scenarios for the sake of discussion...what else is a forum for but discussing and receiving viewpoints from others? I actually learned something pretty interesting from it.

Abbitt Photography wrote:
You realize of course that a model release typically gives the photographer and other parties more ability to use your likeness, not less.  You say you think it's wrong for a photographer to make any money from TF shoot, but then you say you prefer to sign a release which gives the photographer more options for making money from said images.  mmmm.

Yes, I do realize that. I'm in the process of setting up my photographer port ATM, and I originally opened this account as a photographer's account, not a model's. So I'm speaking from the photographer's perspective in regards to model release forms.

And I didn't say anywhere that I think *it is wrong* for a photographer to make money from a TF shoot (and if I did, please point it out so I can clarify), I said that if the photographer wanted to use a model's photo for *commercial purposes* (in my first post in this thread), he should contact the model and ask her to sign a release to that effect.

I also think, that if I successfully sell a photo of a model that is a great photo primarily due to the skills of the model, it would be quite decent and generous of me to offer her a portion of the sales, even if it wasn't sold in a commercial capacity...but it isn't "wrong" of me not to, either. I freely admit I'm not really sure if I am actually that generous should I be presented with that scenario.

Gary Melton wrote:
A "trade" shoot is just that: the model's time for the photographer's time and they both get photographs from the shoot as compensation for each other's time (if that is what they agree upon, which generally IS what they agree upon for a "trade" shoot).  A fair trade might also necessitate more from one party than the the other - based on talents, etc. of each individual party.  For example, if the photographer is higher on the photographer totem pole as far as ability, experience and fame compared to the model's position on the model totem pole, a fair trade might be the photographer's time and photos in exchange for the model's time and photos PLUS limited usage rights...but only if both parties agree PRIOR to the shoot.  If the model is the one "higher on the totem pole", then a fair trade should reflect that (e.g.: time for time, photos for photos, PLUS the model gets travel pay and prints).

IMHO, people seem to forget what "Model's Release" or simply "Release" is short for.  It is short for "Model's Release of Liability"...meaning, by signing the "Release" the model is releasing the photographer from any liability should the photographer use the photos for commercial purposes (ie: the model won't sue the photographer if he uses them for commercial purposes).  That is generally how releases are worded, but they of course they can be written with different language...but, IMHO, it really tends to become a "usage agreement" (rather than a "release") in those cases.

So, to my way of thinking, a model should not be signing a standard release when doing a trade shoot (unless that is what the model wants to do).  There should either be NO release, or the release should be written more narrowly and specifically to state what the model will and will not allow the photos to be used for.

FYI - In the rare cases where I do trade shoots, I don't require the model to sign a release.  I have never had an instance where I wanted to use a photo I created in a trade for commercial purposes, but if I ever did I would contact the model and negotiate usage with her (including split of profits - which might or might not be 50/50, depending on circumstances).  If the model was approached about using one of our trade products for commercial use - I would hope she would do the same for me: come to me and negotiate usage (and profit split) with me.  I think that this is only fair since both of us got full compensation for our trade shoot with the photos that came out of it.

I know that my opinions on this rankle some photographers, but I believe in being fair with people in the hopes they will be fair with me.  I believe it is totally wrong-headed and unfair to do a trade shoot, have the model sign a typical full release...then expect to use the photos for commercial gain without the model's approval or further compensation.

Now if a model goes into a trade shoot with full knowledge that the photographer may want to use the photos commercially with no other compensation to her (and she is willing to sign a full release understanding that), then fine - I have no problem with that.  A trade should be what 2 people agree to is fair for both of them, so whatever they both agree to as fair sounds good to me (so long as they both have a full understanding of just what they are trading).

The problem I see from time to time is when a model thinks they are trading time for time and photos for photos (and nothing else), then discovers that the photographer used the photos for commercial uses without their consent or extra compensation.  In those cases, I can understand the consternation of the model.

I 100% agree with everything you said here--it's what I was trying to get across extremely inelegantly (I was on my phone).

My main objective with a release is for the sake of transparency; in my opinion both parties should be clear on what they're getting into. I think a photographer and a model working together requires trust and goodwill and both parties should be upfront with each other...there shouldn't be anything deceptive or deliberately misleading going on.

CamelliaFlower wrote:
I also think, that if I successfully sell a photo of a model that is a great photo primarily due to the skills of the model, it would be quite decent and generous of me to offer her a portion of the sales, even if it wasn't sold in a commercial capacity...but it isn't "wrong" of me not to, either. I freely admit I'm not really sure if I am actually that generous should I be presented with that scenario.

Just want to point out that if a photographer successfully sells an image for a significant sum of money, it's mostly due to the seller's efforts that the sale took place in the first place.

Discussions like this are precisely why I'd rather just pay a model and be done with it than do a TFP shoot. I'd rather take the hit when it doesn't sell, than deal with the drama if it does sell.