Michael DBA Expressions wrote:
I'm sorry to hear you've had such trouble. Very unprofessional of him, but to answer your question, strictly legally speaking, absent signed paperwork to the contrary, he owns copyright and you need his permission to retouch or have retouching done.

That being said, the odds of more trouble arising from doing so, given the trouble at hand, are probably slim. You will have to decide for yourself whether the photos are worth enough to you to go that route. Is there any paperwork in your hands regarding an agreement to provide you with images, retouched or not? And what do you think the odds might be that he'd be willing to sue you in Federal court? Such suites, BTW, are expensive.

I've already asked about retouching and he responds very cold and wants nothing to do with me now. We didn't do any paperwork that's why I was so worried I wasn't even going to get my pictures back at all. I don't think he would sue but I also don't want to risk something like that, it's just unfortunate to deal with.

Looknsee Photography wrote:
...  Professionals ALWAYS document agreements!  Situations like yours is why agreements need to be documented.  No matter how trivial or how common your agreement is, get it documented thoroughly.  I know it's harsh, but if misunderstandings or disappointments happen after the fact, if you don't have the terms of the agreement in writing, it's your fault.

This is absolutely not true. This is the difference between the real world and the MM world. I know photographers & models who do this for living and never have signed documents when doing trade tests. This situation is not her fault.

This is the old "hit on the model after the test shoot, and if she blows you off, take forever to get her pics back, or never give her pics, or just give the raw pics and forget about her." ...tactic, its quite common in LA.

Skydancer Photos wrote:
While the subject of copyright laws, usage rights, etc. is hotly debated and oft misguided, I can tell you this...

In general, as the model/subject of images taken in the US, you have some limited rights to retouch photos taken of you, primarily for usages such as portfolio posting and promotional purposes. Again in general, this is limited to "minor" retouches such as blemishes, color correction, make up, etc.

Of course, it's always best to either gain the photographer's consent (as he/she is the copyright owner) or inform him/her of your intent. But it sounds like he is not willing to communicate with you anymore.

Hope this helps.

Like anyone here needs another copyright lecture for like the 100th time.

juliarabkin wrote:
Sorry to say but you definitely need his permission before sending to a retoucher.

Absence of retouched photos from photographer is permission as far as I'm concerned. If photographer wants to make issue of it, the first thing he has to do is deliver his end of the deal.

Yosh Studio wrote:
This is absolutely not true. This is the difference between the real world and the MM world. I know photographers & models who do this for living and never have signed documents when doing trade tests. This situation is not her fault.

This is the old "hit on the model after the test shoot, and if she blows you off, take forever to get her pics back, or never give her pics, or just give the raw pics and forget about her." ...tactic, its quite common in LA.

Almost all of my clients sign a contract for the services I provide.  The rest, there is an email trail and that only happens with a few regular, repeat clients.  I have done my last handshake agreement because every time I try to help someone out, it bites me in the ass.  You are right that there should not be a need for extensive documentation or formal contracts to do a simple TF shoot, but after you dismiss them as being part of MM world, you go on to mention how common it is in LA for photographers to fail to deliver if the model doesn't respond to advances.  The OP is in LA, where she is likely to get ripped off without documentation, according to you, and she is on MM, where she is likely to get ripped off because we see these threads on a regular basis.  My business has nothing to do with photography which means I am living in the real world.  In the real world, contracts and documentation are used to protect oneself.  Since you specify that the models and photographers you know who do this for a living, never have signed documents, perhaps you are misunderstanding what is required.  The contract does not have to be signed to be binding.  It can be legally binding by speaking the words required to come to an agreement.  The documentation is to memorialize the contract.  Emails that reiterate the conversation will suffice.

Yosh Studio wrote:
Sorry to say that I have seen this happen on quite a few occasions, especially on tests that are not set up through agencies. 

Its a lesson learned and move on. And, If you really like some of the images get them retouched your self.

Besides, the worst thing that can happen is he makes you remove them from your Instagram...or worse...thrown under the jail for a few years by the SDPD

I agree with Yosh.

Hunter  GWPB wrote:
Almost all of my clients sign a contract for the services I provide.  The rest, there is an email trail and that only happens with a few regular, repeat clients.  I have done my last handshake agreement because every time I try to help someone out, it bites me in the ass.  You are right that there should not be a need for extensive documentation or formal contracts to do a simple TF shoot, but after you dismiss them as being part of MM world, you go on to mention how common it is in LA for photographers to fail to deliver if the model doesn't respond to advances.  The OP is in LA, where she is likely to get ripped off without documentation, according to you, and she is on MM, where she is likely to get ripped off because we see these threads on a regular basis.  My business has nothing to do with photography which means I am living in the real world.  In the real world, contracts and documentation are used to protect oneself.  Since you specify that the models and photographers you know who do this for a living, never have signed documents, perhaps you are misunderstanding what is required.  The contract does not have to be signed to be binding.  It can be legally binding by speaking the words required to come to an agreement.  The documentation is to memorialize the contract.  Emails that reiterate the conversation will suffice.

I suspect Yosh was primarily speaking for how test shoots are done by pros.   Those I know of simply don't provide documentation for shoots as to what models will be given.   This was in response to another members mention of what pros do.   this isn't to say having something written down or in a email isn't wise but for better or worse its not how any of the pros I know work.   In part I guess because test shoots don't always yield usable results.   Having some sort of documentation could mean a disgruntled model or agency could sue or cause problems over non delivery of images.   Just imagine promising ten retouched images but realizing after the shoot you only have five you want to share.   Unpaid tests sometimes don't work out for various reasons.   Heck same for paid ones.   

However would it really matter to a person who had no plans to follow through?   The OP was provided photos.   So its clear.   The OP wasn't ripped off.   She didn't receive what she expected but she was again provided images.    In the world of professional fashion and beauty when tests are done they are often very informal.   Releases are rarely signed.   Again this isn't to say having proof of what is to be given isn't smart but is just how it often is.

Looknsee Photography wrote:
...  Professionals ALWAYS document agreements!  Situations like yours is why agreements need to be documented.  No matter how trivial or how common your agreement is, get it documented thoroughly.  I know it's harsh, but if misunderstandings or disappointments happen after the fact, if you don't have the terms of the agreement in writing, it's your fault.

Yosh Studio wrote:
This is absolutely not true. This is the difference between the real world and the MM world. I know photographers & models who do this for living and never have signed documents when doing trade tests. This situation is not her fault.

Respectfully, I disagree.  MM is chock full of "dispute threads" which take many forms, including...
...  "Where are my pictures?",
...  "Model wants all the RAW files",
...  "Model didn't show up",
...  "Model brought an unexpected escort",
...  "Photographer didn't pay me what I asked for",
...  etc.

I would say that these "dispute threads" are very common.  What do nearly all of these dispute threads have in common?  They arise from misunderstandings, from unaligned expectations, and from undocumented agreements.  Sure, I understand that amateurs & low end professionals don't want to bother with paperwork and want to get to the fun stuff a.s.a.p.  Perhaps most of the time, there is no problem, but judging by the recurring themes on these forums, it happens often enough.  If there is a way to address these recurring problems (short of documenting agreements), I'd love to hear it.

Your "real world" comment is apt -- I can't get an electrician to swap out a light switch without signing an agreement.

Yosh Studio wrote:
Like anyone here needs another copyright lecture for like the 100th time.

Yeah, but there are 100 versions of the copyright laws around.

Ariana Melissa Angel wrote:
Or would he need to approve that himself?

A professional retoucher would never agree to work on an image without permission from the copyright holder.

Tony Lawrence wrote:

I suspect Yosh was primarily speaking for how test shoots are done by pros.   Those I know of simply don't provide documentation for shoots as to what models will be given.   This was in response to another members mention of what pros do.   this isn't to say having something written down or in a email isn't wise but for better or worse its not how any of the pros I know work.   In part I guess because test shoots don't always yield usable results.   Having some sort of documentation could mean a disgruntled model or agency could sue or cause problems over non delivery of images.   Just imagine promising ten retouched images but realizing after the shoot you only have five you want to share.   Unpaid tests sometimes don't work out for various reasons.   Heck same for paid ones.   

However would it really matter to a person who had no plans to follow through?   The OP was provided photos.   So its clear.   The OP wasn't ripped off.   She didn't receive what she expected but she was again provided images.    In the world of professional fashion and beauty when tests are done they are often very informal.   Releases are rarely signed.   Again this isn't to say having proof of what is to be given isn't smart but is just how it often is.

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His response was to Looknsee. 

Someday I will have to work with an agency model to see how that goes.  In the meantime, I work with MM models or friends.  With MM models I want to document things so I do not have to do extra work or pay extra money if there is a dispute.   Same with my business.  In some states the service I provide comes with some amenities that are not part of the standard deal in Pennsylvania.  If I am working with someone that has come from another state, and I do not have that piece of paper that they signed, I will be providing other services to make them happy and I will not be paid for that effort.  If I do not have that piece of paper with other customers, I will not be getting paid the full amount, if at all.  I hear about working with model agencies in the forums and how the bull that happens on MM doesn't happen there.  It would be great to experience that.  But on MM, I think it needs to be handled like a business.  There are too many of these threads.   

I don't think an agency would take my request to test with them seriously.  I am not that good of a photographer, and though I would like to improve, I have other priorities with paint brushes.  I am not opposed to publishing photos if I ever get any that are good enough, but I also don't want to be restricted on the length of time that I can use a photo.  They are library resources to me.  From what I read about agencies in the forum, that could be another problem with me using one.

When I shoot with friends, I never get a release, partly because I am promising not to release photos, partly because I am being foolish.  I won't do what Moynahan's ex did, but I could see not having a release come back to bite me.  I am considering going back to my friends and getting a release.

I think that if I promised a model 10 photos that are adjusted within my abilities, I would provide 10 the best way I could or make it up to her.  If I hire a model to shoot with me, and I screw my settings up and never bother to check the screen, she is still getting paid.  She won't care that I screwed up.  She kept her end of the deal.  I need to make it right.  In the case of the OP, she may have gotten her deal completed within the terms of the oral contract that lead to the shoot. Even if she did get what was promised, she should not have had to contact the guy, or badger him, and not put up with any inappropriate behavior.  Don't forget that part.  He should have had the integrity to keep his word, which probably included some kind of turn around time. Considering his lack of professional demeanor by making advances, I doubt he cares much about keeping his word.  Yosh indicated what the photographer did is common practice in LA.  Every time one of these clowns messes with a model by making inappropriate advances or by delaying or withholding their end of a TF agreement, they make it harder for every other person on MM.  Really, with all the threads about this, and they are probably the tip of the iceberg, why would any model do TF?  If the people on MM are not true to their word, then the only choices are to quit or document.

The question I have:  Is it fair to compare a TF shoot that a model is using as a portfolio building tool to an informal test with an agency?  My understanding from you and other people is that test shots pretty much never see the light of day.  I would expect that a portfolio building TF shoot shouldn't be so informal, or why do it?  The photographer is getting a release, probably, and will own the copyright and be able to publish at will in perpetuity.  What does the model get?  A two year window before her looks change?

Hunter  GWPB wrote:
The question I have:  Is it fair to compare a TF shoot that a model is using as a portfolio building tool to an informal test with an agency?  My understanding from you and other people is that test shots pretty much never see the light of day.  I would expect that a portfolio building TF shoot shouldn't be so informal, or why do it?  The photographer is getting a release, probably, and will own the copyright and be able to publish at will in perpetuity.  What does the model get?  A two year window before her looks change?

Short answers - Yes that are the same, with agency free tests being informal, nothing in writing, except a go-bye and call sheet. If an agency never uses your photos for their models book they wouldn't continue to send you their girls. Your "test" photos better see the light of day on the agency's website and not just your Instagram/website. Models do not sign releases on tests such as these, and are told by their agents not to do so. And "fashion" photos do have an expiration date, especially test shoot photos. 

The OP situation sadly is common, every agency model that I know that tests, has at least one story like this or know's another model with this same story. Getting it in writing isn't going to stop the photo guy who's blowing up your phone with text messages, and asking you dumbass questions like if you want to hang out... from not being slow on delivering photos. 

I'm sure there are many expert posters here who think I dont know what I'm talking about, but I have no problem sharing emails from Ford, L.A. Models, Nous Models, Hollywood Models to show just how informal it can be.

Yosh Studio wrote:

Short answers - Yes that are the same, with agency free tests being informal, nothing in writing, except a go-bye and call Sheet. If an agency never uses your photos for their models book they wouldn't continue to send you their girls. Your "test" photos better see the light of day on the agency's website and not just your Instagram/website. Models do not sign releases on tests such as these, and are told by their agents not to do so. And "fashion" photos do have an expiration date, especially test shoot photos.

Interesting.  Thank you.  What is the advantage to the photographer?

Hunter  GWPB wrote:

Interesting.  Thank you.  What is the advantage to the photographer?

You get to work with great models with good stats, great skin & hair and always show up on time. In my world that is important.

Chuckarelei wrote:

Yeah, but there are 100 versions of the copyright laws around.

The USA only has one version. With minor differences in authority between the several federal divisions.

Hunter  GWPB wrote:

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His response was to Looknsee. 

Someday I will have to work with an agency model to see how that goes.  In the meantime, I work with MM models or friends.  With MM models I want to document things so I do not have to do extra work or pay extra money if there is a dispute.   Same with my business.  In some states the service I provide comes with some amenities that are not part of the standard deal in Pennsylvania.  If I am working with someone that has come from another state, and I do not have that piece of paper that they signed, I will be providing other services to make them happy and I will not be paid for that effort.  If I do not have that piece of paper with other customers, I will not be getting paid the full amount, if at all.  I hear about working with model agencies in the forums and how the bull that happens on MM doesn't happen there.  It would be great to experience that.  But on MM, I think it needs to be handled like a business.  There are too many of these threads.   

I don't think an agency would take my request to test with them seriously.  I am not that good of a photographer, and though I would like to improve, I have other priorities with paint brushes.  I am not opposed to publishing photos if I ever get any that are good enough, but I also don't want to be restricted on the length of time that I can use a photo.  They are library resources to me.  From what I read about agencies in the forum, that could be another problem with me using one.

When I shoot with friends, I never get a release, partly because I am promising not to release photos, partly because I am being foolish.  I won't do what Moynahan's ex did, but I could see not having a release come back to bite me.  I am considering going back to my friends and getting a release.

I think that if I promised a model 10 photos that are adjusted within my abilities, I would provide 10 the best way I could or make it up to her.  If I hire a model to shoot with me, and I screw my settings up and never bother to check the screen, she is still getting paid.  She won't care that I screwed up.  She kept her end of the deal.  I need to make it right.  In the case of the OP, she may have gotten her deal completed within the terms of the oral contract that lead to the shoot. Even if she did get what was promised, she should not have had to contact the guy, or badger him, and not put up with any inappropriate behavior.  Don't forget that part.  He should have had the integrity to keep his word, which probably included some kind of turn around time. Considering his lack of professional demeanor by making advances, I doubt he cares much about keeping his word.  Yosh indicated what the photographer did is common practice in LA.  Every time one of these clowns messes with a model by making inappropriate advances or by delaying or withholding their end of a TF agreement, they make it harder for every other person on MM.  Really, with all the threads about this, and they are probably the tip of the iceberg, why would any model do TF?  If the people on MM are not true to their word, then the only choices are to quit or document.

The question I have:  Is it fair to compare a TF shoot that a model is using as a portfolio building tool to an informal test with an agency?  My understanding from you and other people is that test shots pretty much never see the light of day.  I would expect that a portfolio building TF shoot shouldn't be so informal, or why do it?  The photographer is getting a release, probably, and will own the copyright and be able to publish at will in perpetuity.  What does the model get?  A two year window before her looks change?

My response was only to show how many who test with models work.   I agree that having some sort of written agreement makes sense.   In the fashion and beauty world new models often go through a development stage.   Tests are often done as much as to build a book as for the agency to get a grasp on the models strengths, weaknesses, reliability and attitude.    Are there pros who shoot agency models who have some sort of contract or written acknowledgment for what they will give models?   My guess is some may but its just not something most do that I know of.   Nor do agency models sign releases for tests.   Something many here would balk at.   

Are there are lot of photographers in LA who do as Yosh has said?   I'll take his word for it as sometimes people can be petty and may have ulterior motives.   However you won't last long as a budding pro pulling those kinds of games.   A document can be good to remind both parties what was agreed too but in this case and others like it might mean little to someone who isn't honorable.

Tony Lawrence wrote:
.    Are there pros who shoot agency models who have some sort of contract or written acknowledgment for what they will give models?   

Are there are lot of photographers in LA who do as Yosh has said?   I'll take his word for it as sometimes people can be petty and may have ulterior motives.   However you won't last long as a budding pro pulling those kinds of games.   A document can be good to remind both parties what was agreed too but in this case and others like it might mean little to someone who isn't honorable.

In my experience, when it comes to "free" testing, agency bookers are very accommodating. They don't demand a minimum amount of looks or final images.   

Paid testing is different animal. They will want to know who your team consists of (Hair & MU & Stylist), how many looks will be shot, and how many retouched images per look for said amount of $$$$. 

Magazine Editorials are again a different subject as well.
         


And yes LA does have its fair share of shady photo guys....just keeping it real...I'll leave it at that

Yosh Studio wrote:

In my experience, when it comes to "free" testing agency bookers are very accommodating. They don't demand a minimum amount of looks or final images.   

Paid testing is different animal. They will want to know who your team consists of (Hair & MU & Stylist), how many looks will be shot, and how many retouched images per look for said amount of $$$$. 

Magazine Editorials are a different subject as well.       

And yes LA does have its fair share of shady photo guys....just keeping it real.

I've never shot models from any agency in LA and my experience in Chicago is largely limited to photographers I assisted.   They were shooting models from Elite, (later Aria) David & Lee and a few other agencies.   My reply was directed at the member who spoke on what 'professionals' do.   His was a very broad statement.   You work with agency models and clearly you know your stuff.

Tony Lawrence wrote:
I've never shot models from any agency in LA and my experience in Chicago is largely limited to photographers I assisted.   They were shooting models from Elite, (later Aria) David & Lee and a few other agencies.   My reply was directed at the member who spoke on what 'professionals' do.   His was a very broad statement.   You work with agency models and clearly you know your stuff.

Thanks Tony! I think its the difference between what is deemed "professional" and what "professionals" do, which can be very seem unprofessional

Ariana Melissa Angel wrote:
Now, I just got my pictures back and he refused to retouch them so I wanted to know if I could send them to a retoucher? Or would he need to approve that himself?

first, define "retouch". in reality, removing a pimple or scar "normally" is not creating a new work. minor changes do not rise to a "creative" change in an image. the law also looks at the intended use and original agreement. but minor changes likely will not be an issue. you want to stay away from any grey areas, so major modifications and using the images for uses other than the agreed usages are also out.

otherwise, don't see why it should be a problem - within the limitations.