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By displaying or posting content on the Site, you hereby grant us a nonexclusive global license to publish the content submitted by you to the Site. You also grant us global nonexclusive adaptation and resale rights over any content and material submitted to the Site. These nonexclusive publishing license and resale/adaptation rights extend to any materials submitted "for publication" within the Site, including both message board postings and content submitted for uploading and subsequent publishing within non-message board portions of the Site.

By displaying or posting content on the Site, you hereby grant us a nonexclusive global license to publish the content submitted by you to the Site. You also grant us global nonexclusive adaptation and resale rights over any content and material submitted to the Site. These nonexclusive publishing license and resale/adaptation rights extend to any materials submitted "for publication" within the Site, including both message board postings and content submitted for uploading and subsequent publishing within non-message board portions of the Site.

By displaying or posting content on the Site, you hereby grant us a nonexclusive global license to publish the content submitted by you to the Site. You also grant us global nonexclusive adaptation and resale rights over any content and material submitted to the Site. These nonexclusive publishing license and resale/adaptation rights extend to any materials submitted "for publication" within the Site, including both message board postings and content submitted for uploading and subsequent publishing within non-message board portions of the Site.

By displaying or posting content on the Site, you hereby grant us a nonexclusive global license to publish the content submitted by you to the Site. You also grant us global nonexclusive adaptation and resale rights over any content and material submitted to the Site. These nonexclusive publishing license and resale/adaptation rights extend to any materials submitted "for publication" within the Site, including both message board postings and content submitted for uploading and subsequent publishing within non-message board portions of the Site.

TXPhotog wrote:
A completely different issue, and entirely dependent on state law.  In some states (New York, for example) the statute specifically says that the release must be in writing.  Learn your own state laws.

I'm afraid it's more complicated than that. I am from Virginia but the pictures were shot in Florida. But supposely that I never sell or publish the images in print, and that she would never take me to court, is it safe to say that I don't have anything to worry about if I only use them on 1. sites like MM 2. my personal business site 3. personal hardcopy portfolio?

CLT wrote:
I'm afraid it's more complicated than that. I am from Virginia but the pictures were shot in Florida. But supposely that I never sell or publish the images in print, and that she would never take me to court, is it safe to say that I don't have anything to worry about if I only use them on 1. sites like MM 2. my personal business site 3. personal hardcopy portfolio?

No, it is not safe to say.  And at a minimum, you need to satisfy the requirements of your own state law, maybe Florida law as well.  You need a written release.

Leonard Gee Photography wrote:
It is settled that a “nonexclusive license may be irrevocable if supported by consideration.” Lulirama Ltd., Inc. v. Axcess Broadcast Servs., Inc., 128 F.3d 872, 882 (5th Cir. 1997).

That word interests me. What if the TF* usage agreement states that it is revocable and the model agrees to it. It that enough to make it revocable even though "consideration" was given?

I don't know.  I'd guess it would be, since that would express the intent of the parties.  But who in the world would agree to that?

CLT wrote:
I'm afraid it's more complicated than that. I am from Virginia but the pictures were shot in Florida. But supposely that I never sell or publish the images in print, and that she would never take me to court, is it safe to say that I don't have anything to worry about if I only use them on 1. sites like MM 2. my personal business site 3. personal hardcopy portfolio?

In the case of "implied license" the venue is probably the location where the photos were taken (action takes place). Though lawyers could fight over that.

CLT wrote:

I'm afraid it's more complicated than that. I am from Virginia but the pictures were shot in Florida. But supposely that I never sell or publish the images in print, and that she would never take me to court, is it safe to say that I don't have anything to worry about if I only use them on 1. sites like MM 2. my personal business site 3. personal hardcopy portfolio?

point being... this discussion of model release has no place in this thread.

TXPhotog wrote:
I don't know.  I'd guess it would be, since that would express the intent of the parties.  But who in the world would agree to that?

Only way I do tests is with the signed revocable usage agreement - because though models agree and understand the uses allowed and not allowed, I don't want to go through the hassle of a filing......

I've never had to revoke and hope never have to. But if they give me problems, just the idea that I may revoke usually stops them dead. Usually it's because they re-sampled my file wrong, did a bad print job or scanned the picture wrong. I just tell them to re-do it or will do it for them and they dump the bad pictures.

§ 8.01-40. Unauthorized use of name or picture of any person; exemplary damages; statute of limitations.

A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.

B. No action shall be commenced under this section more than twenty years after the death of such person.

I read the bolded part as being "the model has the option of suing". But if she doesn't, does the state or any public authority has the right to sue on her behalf?

Also, to bring this back on topic... I brought this up because it seem that the condition for an "implied license" was that the photographer was benefited from the shoot, therefore the model should benefit. In my case, if I was not allowed to benefit from the shoot (due to the lack of release) does that mean no implied license was granted?

Oh, and thank you for all your valuable contribution to the MM community.

CLT wrote:
I read the bolded part as being "the model has the option of suing". But if she doesn't, does the state or any public authority has the right to sue on her behalf?

No.

CLT wrote:
Also, to bring this back on topic... I brought this up because it seem that the condition for an "implied license" was that the photographer was benefited from the shoot, therefore the model should benefit. In my case, if I was not allowed to benefit from the shoot (due to the lack of release) does that mean no implied license was granted?

I addressed that in my earlier posts.

You can benefit (receive consideration) without a release.  You have the copyright, have not given exclusive publication rights to anyone, and can use the images in a variety of ways, including ways to make money, such as editorial use sales, without a release.  You got something of value (consideration) from the shoot.  Whether you actually get any tangible value (money) from it or not really doesn't matter.

SWEETFACELA wrote:
Can we postmark these 2 posts?!?!!

Postmark? You want us to take it to the US Post Office?

No, it has to be the US Patent Office that does it.

TXPhotog wrote:
You can benefit (receive consideration) without a release.  You have the copyright, have not given exclusive publication rights to anyone, and can use the images in a variety of ways, including ways to make money, such as editorial use sales, without a release.  You got something of value (consideration) from the shoot.  Whether you actually get any tangible value (money) from it or not really doesn't matter.

I see how this is more complicated than the retouching issue.

I'll do some further research on my own, but thank you for giving me a starting point.

studio36uk wrote:
OK... here's a question probably no one else will ask. Can an implied license be transferred or sub-licensed from the model to a third party in US practice?

I don't know what your question means.

If it means, for example, can a model authorize her agency to act on her behalf in promoting her with the pictures, yes.  That would be within the ambit of what was expected use.  She doesn't personally have to put them on a website, as long as the use is within the purpose for which the implied license applies.

TXPhotog wrote:
Just for fun, I looked.  In Virginia, the relevant law is:

A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.

B. No action shall be commenced under this section more than twenty years after the death of such person.

"Advertising purposes or for the purposes of trade" seems to apply to commercial use, meaning publishing in association with a product or service (as opposed to editorial).

Also, "person, firm, or corporation so using such person's name, portrait, or picture" refers to the publisher, not the photographer.

Don Spiro wrote:
"Advertising purposes or for the purposes of trade" seems to apply to commercial use, meaning publishing in association with a product or service (as opposed to editorial).

Also, "person, firm, or corporation so using such person's name, portrait, or picture" refers to the publisher, not the photographer.

It's good that you are thinking about these things, but your comments are irrelevant to the thread or to the question asked.

Don Spiro wrote:
"Advertising purposes or for the purposes of trade" seems to apply to commercial use, meaning publishing in association with a product or service (as opposed to editorial).

Also, "person, firm, or corporation so using such person's name, portrait, or picture" refers to the publisher, not the photographer.

TXPhotog wrote:
It's good that you are thinking about these things, but your comments are irrelevant to the thread or to the question asked.

Beyond that, it is a dangerous assumption that others have made.  While it is true that you might only seek an injunction against the company that is actually using the likeness, there is nothing to suggest that the photographer who provided the image may not have liability as well.  There have been many cases all over the country where there was a judgment against both.

Tx, however, is correct, that has no relevance to the original question.