Ken Marcus Studios wrote:
That is NOT what a model release is all about.

What you are talking about is a contract between the model and photographer, stating the agreement for compensation upon sale of the photos.

It's not a good idea to combine that with a model release, or with 2257 paperwork (if any is needed)

Sorry; this makes no sense to me. A release has to spell out such compensation surely? If it's not recorded in the release, then the release can only be taken at face value to be absolute - even if an enforceable contract exists, a third party asking to see the release won't be able to tell this.

To quote wikipedia "A model release... is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release , and also possibly in exchange for compensation paid to the photographed".

Most of the sites that will use such images will want to see a release. If the release specifies direct payment to the model, then the site will either make that or not use the image. Otoh, if the release is absolute, then the model will have to some how track uses of the image and find out fees - or blindly trust the photographer. I can't see why a model should sanely be expected to do either.

..So given the above, can you explain why it is in the model's interest not to put such terms into the release? Rather than perhaps just a common practice adopted for decades to screw models over?

thiswayup wrote:

Sorry; this makes no sense to me. A release has to spell out such compensation surely? If it's not recorded in the release, then the release is absolute - even if an enforceable contract exists, a third party asking to see the release won't be able to tell this. To quote wikipedia "A model release... is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release".

Mr Marcus is, of course, right.  It looks like the OP wants some kind of contract that gives her a share of any profits from the sale of photographs, and that cannot be covered in a model release.

Kent Art Photography wrote:

Mr Marcus is, of course, right.  It looks like the OP wants some kind of contract that gives her a share of any profits from the sale of photographs, and that cannot be covered in a model release.

Because...?

Flex Photography wrote:
A model release is the model granting the photographer permission to use their likeness. Signed by model only.

That's what the model is asking for. She's not asking that include a contract with third parties - she's saying that her agreement with the photographer is contingent on sharing revenue on deals he makes. This only requires the model's signature, just like any variation on permission granted in a contract.

Miss Tasia B RazzMaTazz wrote:
but any compensation paid for photos needs to be shared with the model. Like a royalty.
Can anyone help me out?

i'd like to help you out. which way did you come in?

Kent Art Photography wrote:
Mr Marcus is, of course, right.  It looks like the OP wants some kind of contract that gives her a share of any profits from the sale of photographs, and that cannot be covered in a model release.

small point of order.

a release grants the photographer certain rights. the model would like to limit those rights - which are in the release. she also wishes to deal with compensation - which is also part of the release. while some are looking at this only like a payment contract, the model release may stipulate limiting the uses to what the model wants and what future compensation will be forthcoming if the photographer extends his use of the agreed uses beyond the trade portion of the release. don't see how, if the release were properly constructed and lawful, that it would be a problem. how it's implemented and worded is the tricky part. not to mention auditing and breaches....

thiswayup wrote:
This would seem to be what the OP needs:

http://photoweb.gaugler.com/pw_tech/release.html

...The section detailing compensation simply needs changing.

No, that won't work:

1)  All those variations of model release state that the model has already been compensated when she signs, and that she explicitly does not require anything else from the photographer.

2)  I don't see how any document, signed only by the model, can obligate the photographer for future compensation.  If the photographer needs to pay the model more at a later date, I would imagine that at a minimum his signature would also be needed.

3)  Example:  since I deigned to reply to thiswayup's post, he now owes me $50.  Pay up.

=================================================================================

I distrust "amateur" contracts because they are often poorly thought out, poorly written, and incomplete.  For example -- I would expect & hope that a contract that obligated the photographer to pay a model whenever he licenses a photo featuring the model to be able to answer the following questions:
...  How long does this arrangement last?  When does it expire?
...  Can the model sell her interest in the photograph to a 3rd party?
...  What happens to the model's share if/when the model dies?
...  What happens if the model moves?  Who is obligated to inform whom about changes in address.
...  Does the model have veto power?
...  What happens if the model changes her name?
...  If the photograph of the model is the subject of a legal dispute, is the model on the hook for her
     share of the legal expenses?
...  Does the model have the right to audit the photographer's books?
...  Under what circumstances can the contract be terminated?
and so forth.

thiswayup wrote:
Sorry; this makes no sense to me. A release has to spell out such compensation surely? If it's not recorded in the release, then the release can only be taken at face value to be absolute - even if an enforceable contract exists, a third party asking to see the release won't be able to tell this.

To quote wikipedia "A model release... is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release , and also possibly in exchange for compensation paid to the photographed".

Most of the sites that will use such images will want to see a release. If the release specifies direct payment to the model, then the site will either make that or not use the image. Otoh, if the release is absolute, then the model will have to some how track uses of the image and find out fees - or blindly trust the photographer. I can't see why a model should sanely be expected to do either.

..So given the above, can you explain why it is in the model's interest not to put such terms into the release? Rather than perhaps just a common practice adopted for decades to screw models over?

Ken Marcus has been internationally published and has forgotten more about the industry and photography and releases then most of us  know.   I trust in what he says.   The kind of thing the OP wants might be unwieldy to produce and hard to enforce.   How would she know when or if something was published and lets be candid most here (expect you of course and Ken) aren't being published and in most cases the payment if any isn't much.    I would love to see where you're published.   Is it at the university you received your physics degree.    I can't imagine a working pro signing a contract like the OP wants.   Have you?   How did it work out for you?   When magazines published your work did you split what you were paid evenly?   Do you have a sample contract you can share you've used in the past that could show
us.

I did check out the link you gave and I don't believe it addresses what the OP is asking for which is why I asked for what you use.

Looknsee Photography wrote:
No, that won't work:

1)  All those variations of model release state that the model has already been compensated when she signs, and that she explicitly does not require anything else from the photographer.

The release says that the model doesn't need anything not listed in the release. This, by definition, does not include things listed in the release.

Also, you don't understand the word "compensated" - it doesn't mean a cash payment; if you grant someone a per sale payment in a contract, that right is compensation.

2)  I don't see how any document, signed only by the model, can obligate the photographer for future compensation.  If the photographer needs to pay the model more at a later date, I would imagine that at a minimum his signature would also be needed.

Then you don't understand what a model release is and shouldn't be posting here. A model release is a statement of the conditions under which a model allows a photographer to use her images; it is a license granted by her and grants it exactly what she details. If he doesn't like the terms the license offers then his recourse is to shoot with somebody else.

Tony Lawrence wrote:
Ken Marcus has been internationally published and has forgotten more about the industry and photography and releases then most of us  know.

He's been published; that doesn't mean that he knows a damn about contracts. In fact what he wrote showed that he doesn't even understand the issue: he is confusing a contract between the model and 3rd parties with a modification of her contract with the photographer to restrict his rights in forming deals with third parties. An artist can be in business for decades without understanding the contracts they sign.

I trust in what he says.

Then I am even more certain that he is wrong.

thiswayup wrote:

He's been published; that doesn't mean that he knows a damn about contracts. In fact what he wrote showed that he doesn't even understand the issue: he is confusing a contract between the model and 3rd parties with a modification of her contract with the photographer to restrict his rights in forming deals with third parties. An artist can be in business for decades without understanding the contracts they sign.


Then I am even more certain that he is wrong.

Tony Lawrence wrote:
Mr. Marcus has a paid website and has his work in Playboy and Penthouse.

Yes. That doesn't make him a contract law expert. I can think of cases where artists have worked for decades and still don't understand their contracts.

Shooters like Ken really have to know how all this works.

Really? You don't think that someone else wrote his releases for him? Often the magazine he was working for? And that in fact he may have no experience at all of the sort of deal the model here is asking about?

Well, I'm willing to believe that you think that - but no sensible person would.

Tony Lawrence wrote:
[Re: Ken Marcus] I trust in what he says.

thiswayup wrote:
Then I am even more certain that he is wrong.

thiswayup - - -

The problem is that it is you that do not seem to understand the significant differences in law and practice between the US and the UK on releases. Even within the various states of the US the reason for, and the genesis of, a model's "rights" can vary between being a statutory right of publicity, a personality right, and even, in a few cases, a proprietary [personal property] right. None of these, in fact, even exist in the UK, and though releases used in the UK may incorporate reference to such rights any such reference is merely speculative.

Because comparable rights, vested in a model, do not exist in the UK it is even possible to operate here without a release at all, and in some cases that may be the preferable approach as opposed to using any sort of release at all.

Studio36

pixelmaniax wrote:
And my personal opinion is a release and a contract are separate entities.

Yes, but your personal opinion is worthless. A contract is any agreement intended to be enforced by law. If you don't know what the word means and are silly enough to post an opinion - well, the only conclusion anyone can some to is about you.

My personal experience I was offered $500 dollars for a release just to have photos taken of me on a contingency basis for a commercial I was in. It was a NYC based photographer and the commercial was for Maxwell House Coffee.

I thank you for those highly relevant details - if the ad had been for Lipton's Tea, that would have been *completely* different!

American Glamour wrote:
Open ended revenue sharing is a slippery slope for both people.  From the model's standpoint, how do you enforce it?  How do you know if the photographer has been paid and how much he received?   How do you know you will be able to find him three years from now?

That a right is not easy to enforce does not make it valueless.

As for the suggestion that a cash payment may be better - in general, I imagine so. But there could be times when other options are better; life and business are complex.

Going beyond that, don't most purchasers insist on seeing a model release? If the release specified that the photographer could only sign contracts where the purchaser had to send a cheque directly to the model, then enforcement should be automatic - anyone reading the release would know that they were in violation of its terms if that wasn't done. This may or may not cost deals; I can't say. Plus I imagine a lot of buyers don't do more than glance at releases.

thiswayup wrote:

Yes, but your personal opinion is worthless. A contract is any agreement intended to be enforced by law. If you don't know what the word means and are silly enough to post an opinion - well, the only conclusion anyone can some to is about you.

Personal opinion is worthless based on no experience.

I do have experience with professional industry practices with models and releases. Judging from your photography and attitude you have little to none.

thiswayup wrote:
He's been published; that doesn't mean that he knows a damn about contracts. In fact what he wrote showed that he doesn't even understand the issue: he is confusing a contract between the model and 3rd parties with a modification of her contract with the photographer to restrict his rights in forming deals with third parties. An artist can be in business for decades without understanding the contracts they sign.
...

Then I am even more certain that he is wrong.

Ha,

Thank you for showing your lack of maturity here.

No, honestly, why not do a little more searching and the topic and get back to us? I'm going with Mr. Marcus because of his life-long experience, reputation and knowledge.

Jen

pixelmaniax wrote:

Personal opinion is worthless based on no experience.

Actually, this a stupid thing to say - if a law student with no experience was in this debate, his opinion would be worth more than yours. And I do have experience of business contract law - more so than a photographer handing out releases someone else wrote.

I do have experience with professional industry practices with models and releases.

And I'm sure you kept those floors spotlessly clean.

thiswayup wrote:

Actually, this a stupid thing to say - if a law student with no experience was in this debate, his opinion would be worth more than yours. And I do have experience of business contract law - more so than a photographer handing out releases someone else wrote.


And I'm sure you kept those floors spotlessly clean.

I will take Mr Marcus's opinion over a new inexperienced law student when it comes to model releases any day.

BTW clean studio floors are good for business.

Jen B E wrote:

Ha,

Thank you for showing your lack of maturity here.

No, honestly, why not do a little more searching and the topic and get back to us? I'm going with Mr. Marcus because of his life-long experience, reputation and knowledge.

Jen

You're certainly welcome to, although I'm puzzled that you think I'll care. A model release is a contract and I have plenty of experience of those, plus the guy's words showed he didn't actually understand the issue - it has nothing to do with needing a third party to sign. Contracts are contracts; a model release is a contract; handing over hundreds of standard issue releases to young women over decades does not create expertise in anything other how to pick up a piece of paper.

pixelmaniax wrote:
I will take Mr Marcus's opinion over a new inexperienced law student when it comes to model releases any day.

I believe you - we've already established that you don't know what the word "contract" means and were still silly enough to post as if you do, so it's hardly inconsistent of you.

Jen B E wrote:
Ha,

Thank you for showing your lack of maturity here.

No, honestly, why not do a little more searching and the topic and get back to us? I'm going with Mr. Marcus because of his life-long experience, reputation and knowledge.

Jen

Hm, what thiswayup wrote was actually extremely rationale. Beware of popularity based consensus on internet forums, they all function this way but there is no wisdom of the crowd.

thiswayup wrote:

I believe you - we've already established that you don't know what the word "contract" means and were still silly enough to post as if you do, so it's hardly inconsistent of you.

Ken Marcus is famous period. However he is one of the photographers who quit working for Playboy with the advent of "work for hire"
His work was key in defining Penthouse and Playboy in the 70's and early 80's, he pretty much walked away from them when the magazines wanted to "own" his work instead of license it....

I think he knows a just a little bit about contracts and releases...

pixelmaniax wrote:

Ken Marcus is famous period. However he is one of the photographers who quit working for Playboy with the advent of "work for hire"
His work was key in defining Penthouse and Playboy in the 70's and early 80's, he pretty much walked away from them when the magazines wanted to "own" his work instead of license it....

I think he knows a just a little bit about contracts and releases...

Again, this is a foolish belief. Penthouse use lawyers to wrote releases, not photographers. You don't absorb legal knowledge magically by touching paperwork other people have written - if you did, then UPS men would legal geniuses. The man knows photography; he is not an expert in contract law.

thiswayup wrote:
Then you don't understand what a model release is and shouldn't be posting here. A model release is a statement of the conditions under which a model allows a photographer to use her images; it is a license granted by her and grants it exactly what she details. If he doesn't like the terms the license offers then his recourse is to shoot with somebody else.

It sounds like it's more you who doesn't know what a release is - it's not a license.

C.C. Holdings  wrote:

Hm, what thiswayup wrote was actually extremely rationale. Beware of popularity based consensus on internet forums, they all function this way but there is no wisdom of the crowd.

It was also designed to stop people like Jen B from getting screwed over. Because deals of the type the OP talked about may well be the future of commercial modeling, especially if one of the touted systems for copyright micropayments takes off.

J O H N  A L L A N wrote:
It sounds like it's more you who doesn't know what a release is - it's not a license.

I use it here in the sense of a document granting permission to do something, ie as in "Sony licenced the manufacture of robot pet rocks to Samsung for export to the US market". This is, to a normal person, is a licensing deal, and the contract would be referred to as... a license. It is in fact exactly analogous to the right a model is giving a photographer - the right to use her intangible property, ie her image. If you want to be more anal and prolix than that, please waste your time.

thiswayup wrote:

I use it here in the sense of a document granting permission to do something, ie as in "Sony licenced the manufacture of robot pet rocks to Samsung for export to the US market". This is, to a normal non-idiot, a licensing deal, and the contract would be referred to as a license. If you want to be more anal and prolix than that, please waste your time.

It's not an affirmative license which is granting rights.
It's releasing/waiving the model's inherent right to the use of his/her likeness - and that release of right may be limited in scope.

thiswayup wrote:
Going beyond that, don't most purchasers insist on seeing a model release? If the release specified that the photographer could only sign contracts where the purchaser had to send a cheque directly to the model, then enforcement should be automatic - anyone reading the release would know that they were in violation of its terms if that wasn't done. This may or may not cost deals; I can't say. Plus I imagine a lot of buyers don't do more than glance at releases.

I don't see it as practical at all if you required the ultimate publisher to send a check to the model.  That obligation would have to fall to the photographer.  What if the publisher couldn't find the model?  If the burden fell on the photographer, the publisher would be able to use the images but the photographer would be the one in breach if payment wasn't made.

I think that it would be a poison pill if you expected the publisher to pay the model.

thiswayup wrote:
I use it here in the sense of a document granting permission to do something, ie as in "Sony licenced the manufacture of robot pet rocks to Samsung for export to the US market". This is, to a normal non-idiot, a licensing deal, and the contract would be referred to as a license. If you want to be more anal and prolix than that, please waste your time.

J O H N  A L L A N wrote:
It's not an affirmative license which is granting rights.
It's releasing/waiving the model's inherent right to the use of his/her likeness - and that release of right may be limited in scope.

You are close, it is actually a waiver of the right for the model to sue.  A release isn't the only way to accomplish this.  No statue requires a release.  They require consent to use the likeness.  For legal reasons, lawyers typically prefer a release because it waives the right to sue.  There is a trend however, and we see it more often these days, using a consent form rather than a release.  That is done because consent doesn't require consideration and it is sometimes easier to enforce.  It is complex, however.  Consent, can sometimes be revocable (although it creates a defense of detrimental reliance).

In any case, kudos for picking up on the fact that a release is actually a waiver of a right, not an affirmative grant of consent.  Most people don't understand that.  Good post.

American Glamour wrote:

I don't see it as practical at all if you required the ultimate publisher to send a check to the model.  That obligation would have to fall to the photographer.  What if the publisher couldn't find the model?  If the burden fell on the photographer, the publisher would be able to use the images but the photographer would be the one in breach if payment wasn't made.

I think that it would be a poison pill if you expected the publisher to pay the model.

Like I said, it might well kill deals.

I suppose the reasonable solution - if this was a serious business case that would recur - would be to have a third entity own the images and handle payments. Right now, this is a freak case. But understanding the law is quite possibly important for the future.

...Talking of the future, models are probably going to matter more and photographers less anyway; the whole business model is going to change and change again.

thiswayup wrote:

I use it here in the sense of a document granting permission to do something, ie as in "Sony licenced the manufacture of robot pet rocks to Samsung for export to the US market". This is, to a normal non-idiot, a licensing deal, and the contract would be referred to as a license. If you want to be more anal and prolix than that, please waste your time.

John Allan does tests for agencies. In the U.S. it is recommended to keep the contract for payment or for future revenue sharing separate in most states in the U.S. if not all.  The release in the U.S. needs to be unencumbered with other contractual issues for easy sale.

When I do contracts commercially, sometimes a release is relatively unimportant such as at public events for a politician/client. I saved a client's nascent magazine from being torn apart because of the signed releases that were unencumbered with payment contract clauses that I had potentially warring parties sign. 

U.S. federal and state law can be confusing for U.S. citizens. And state law is very important--for much of my commercial work California state law is very important to know.

You may think that U.K law, that is the common-law is the foundation of U.S. law--on states but for Louisiana, I think all imported common-law into their legislation at the start and then proceeded to MODIFY.

Therefore, model release legislation vary in some states--typically unlike the U.K. we refer to an individual state statute--not one law for the whole country. Here's the Professional Photographer's Association guidelines (they are the major association for professional photographers in the U.S.) with the various states and their short recommended model release is also included. I should be joining them soon as they are so excellent, giving great guides on how to charge, etc.

https://www.ppa.com/files/pdfs/modelrel … epaper.pdf