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Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Realizing that any anwswer I get here are simply opinions, I'm simply looking for a consensus.

A Model, with whom I work frequently, went to Atlanta a couple of months back and did a shoot with a number of other models.

The purpose of the shoot was to get photos for a 2013 Calendar that was to be printed.

Now, my question.

According to the Model, she did not sign any release with the people who did the shoot authorizing them to use her images in the Calendar and to sell/profit from the Calendar.

Can they sell the Calendars without her release?  Does she have any recourse to collect from the sales?

According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for.  So far, she's received nothing from them for the few Calendars that she has sold.

Yes, she's young, naive and surely doesn't know the ins and outs of this business.

Your opinions.   And I do realize that there are no lawyers her, so I'll treat your opinions as just that.

TIA

Ed
Jan 04 13 10:22 am  Link  Quote 
Photographer
GER Photography
Posts: 7,689
Imperial, California, US


You're screwed dude!! At least for commercial uses.
Jan 04 13 10:30 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


George Ruge wrote:
You're screwed dude!! At least for commercial uses.

I'm not....  But, they may be.

Jan 04 13 10:34 am  Link  Quote 
Photographer
Larry Quick
Posts: 117
Royal Palm Beach, Florida, US


The photographers should not be selling any of the photos without a signed release. She does have recourse, but that would involve an attorney. She should call the people that are involved and maybe threaten them with a lawsuit if she doesnt get paid and see what happens with that avenue. Or order more calendars to sell and then don't send them the money after she sells them. Of course all of this is just my 2 cents worth. As a photographer myself I would never not share in the profits with one of my models, either paying them for the shoot or giving them a percentage of the profits from the sales of the calendars.
Jan 04 13 10:34 am  Link  Quote 
Photographer
Toto Photo
Posts: 2,522
Belmont, California, US


Ed Woodson Photography wrote:
So far, she's received nothing from them for the few Calendars that she has sold.

When she sells one, does she keep a percentage?

Jan 04 13 10:36 am  Link  Quote 
Photographer
ontherocks
Posts: 22,284
Salem, Oregon, US


consult an attorney familiar with the laws in Georgia? i think the right to publicity thing varies somewhat by state.

the way i understand it, being the copyright holder doesn't necessarily imply that you can just do anything you want with the images. of course sometimes people decide it's easier to seek forgiveness than permission.

so the main issue here is that she feels like she's not getting the royalties she was promised?
Jan 04 13 10:37 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Toto Photo wrote:

When she sells one, does she keep a percentage?

She was told by the Photographers.....

When a Calendar is ordered from them online, with payment through PayPal, the buyers must specify the Model who is to get credit for the sale.  Only then, will she get paid.  If they pay her at all.

Jan 04 13 10:38 am  Link  Quote 
Photographer
GER Photography
Posts: 7,689
Imperial, California, US


Ed Woodson Photography wrote:

I'm not....  But, they may be.

Oops!! Yep!! They're screwed!!:-))))

Jan 04 13 10:42 am  Link  Quote 
Model
Melodye Joy
Posts: 542
Rancho Cucamonga, California, US


Not that it could stand in a court, but if she has ANY written information regarding their agreement/terms...with out without a release she could get compensation.

Especially, if she DIDN'T sign a release, she could possibly state that these folks are using her person/her image for profit...without agreement....

But of course thats iffy, only because she did in fact agree to particular terms. hmm

It was a mistake on her part that she did not sign anything, any agreement, any term notes...

But as you said, shes young and this was a learning experience for sure! I, myself have done it before. It takes a few stumbles to get it right for sure. smile
Jan 04 13 10:44 am  Link  Quote 
Model
angel emily
Posts: 1,020
Boston, Massachusetts, US


Ed Woodson Photography wrote:
According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for.  So far, she's received nothing from them for the few Calendars that she has sold.

Yes, she's young, naive and surely doesn't know the ins and outs of this business.

I was going to say...  stupid model!

Oh well, we all learn - some harder than others!

Under all circumstances I'm familiar with, it typically works by paying the model in return for her signature on a release form that allows the commercial use of her likeness -- not compensating the model after based on sale profits.  The model could likely walk away with nothing, and in this case, it sounds like she'll make just that - either because they're not selling or she is dealing with shady and/or amateur people or the "buyers" are simply crediting other models who are getting paid.

Was this "agreement" in writing?

If I were the model, I'd simply stop selling the calendars if I wasn't getting paid to model OR work as a salesperson.  On to the next REAL job!

Jan 04 13 10:49 am  Link  Quote 
Photographer
WCR3
Posts: 1,016
Houston, Texas, US


She could file suit against the photographer or producer of the calendar for using her likeness without permission. Or she could file suit for breach of contract for not getting paid for the calendars she sold. Or both.

That would require hiring a lawyer who would charge her far more than she could ever recover. Or she could try to handle the case herself in small claims court. She would almost certainly have to file the suit in Fulton County where the defendant resides and appear there for proceedings. That's about 250 miles from Savannah.

Even if she were to find a lawyer to take the case in some way that was affordable, she would very likely lose on the improper use of likeness claim because, even without the release, a judge or jury would find implied consent. If she won on the breach of contract claim, that would knock out the improper use of likeness claim, because she would have had to prove there was an agreement to use her likeness in the calendar in the first place.

The long and the short of it is, she's out of luck. It's what lawyers sometimes refer to as a wrong without a remedy.
Jan 04 13 10:49 am  Link  Quote 
Photographer
ms-photo
Posts: 480
Portland, Oregon, US


Without a signed release or contract, it's a he said / she said type of situation.

They own the copyright to the images and of course, they can do whatever they want with them including print the calendar.

Since she is not a celebrity, any sort of "right of publicity" stuff would not hold up either.

Let's hope they sell a few calendars and she gets paid something.  But this is a case where they both should have signed a contract instead of a release (the contract goes both ways while the release only goes one way).

All this "consult with a lawyer" or "take them to court" stuff is silly, I doubt the calendar sales would even bring her $500, which is what you'd pay a lawyer just for a retainer.
Jan 04 13 10:55 am  Link  Quote 
Photographer
Loki Studio
Posts: 2,923
Royal Oak, Michigan, US


The most important question:

1) What where the exact terms of her compensation?  She should know how much she was to receive per calendar she helped sell and when her check was to be sent.

2) Did she sign any other contract/agreement that might have had a model release clause in it?

3) Are there any other written statements about the project and compensation in email. etc.?

Actually suing for breech of privacy based on no model release will probably far exceed the model's potential income from this project.  Her best course of action after consulting a real attorney may be to draft a letter demanding payment or threatening to get a cease and desist order to stop selling the calendar.

-Scott
Jan 04 13 11:01 am  Link  Quote 
Photographer
Loki Studio
Posts: 2,923
Royal Oak, Michigan, US


Ed Woodson Photography wrote:

She was told by the Photographers.....

When a Calendar is ordered from them online, with payment through PayPal, the buyers must specify the Model who is to get credit for the sale.  Only then, will she get paid.  If they pay her at all.

This is obviously a terrible system for the model to get a commission from since it depends on the optional action of a buyer.   Why would anybody agree to this?

Jan 04 13 11:05 am  Link  Quote 
Photographer
291
Posts: 11,911
SEQUOIA NATIONAL PARK, California, US


ms-photo wrote:
Without a signed release or contract, it's a he said / she said type of situation.

They own the copyright to the images and of course, they can do whatever they want with them including print the calendar.

Since she is not a celebrity, any sort of "right of publicity" stuff would not hold up either.

if this is the position you take on this then you really shouldn't be commenting on this subject matter.
-----
to the op:  without additional information there is no real answer that can be applied.  a release is merely one form of consent.  without knowing additional correspondence which may have taken place where consent may have been provided this may be a moot issue.

Jan 04 13 11:12 am  Link  Quote 
Photographer
John Edward
Posts: 2,462
Dallas, Texas, US


Ed Woodson Photography wrote:
Realizing that any anwswer I get here are simply opinions, I'm simply looking for a consensus.

A Model, with whom I work frequently, went to Atlanta a couple of months back and did a shoot with a number of other models.

The purpose of the shoot was to get photos for a 2013 Calendar that was to be printed.

Now, my question.

According to the Model, she did not sign any release with the people who did the shoot authorizing them to use her images in the Calendar and to sell/profit from the Calendar.

Can they sell the Calendars without her release?  Does she have any recourse to collect from the sales?

According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for.  So far, she's received nothing from them for the few Calendars that she has sold.

Yes, she's young, naive and surely doesn't know the ins and outs of this business.

Your opinions.   And I do realize that there are no lawyers her, so I'll treat your opinions as just that.

TIA

Ed

I can't begin to count how many models I've known who have gotten screwed, because somebody had this great idea to do a calendar.

And every year there's a always a new batch.

Tell your friend, to get like twenty or thirty from them in advance, sell them to her friends, and keep the money, all the money. That's the only way she'll make out on that deal.

As for the Release thing? It's not worth bothering with. Ten bucks says most of them end up going to the trash this time next year still unsold.

Jan 04 13 11:13 am  Link  Quote 
Photographer
Joe WoW Photos
Posts: 644
Dayton, Ohio, US


I'm surprised there was even a calendar made...  are you sure the ones she's sold got delivered? I mean every hack in my area says they are "making a Calendar" to get pretty girls to show up. I figure if they only send out the calendars that Your model sold, well then for those specific clients she's given permission to because she was teh broker, but if she sees or can prove someone bought a calendar with her image, and she wasn't compensated, then sounds liek she has a civil suit.. 
Tell her to get a lawyer. Not to be mean, but there's absolutely nothing you or any photographer can do for her, so don't spend too much time fretting.
It's not as bad as many other stories that could have happened..
Jan 04 13 11:16 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


OK, thanks all for your comments.

I think, at this point, I'm simply going to tell her that she's SOL.

I agree that hiring an attorney will likely cost her more than she can ever expect to recover.

Yes, she is a young, and naive, model with a lot to learn.   doubt that she'll make this mistake again.

What brought this entire issue up is that the group of Photographers has asked her, once again, to participate in something from which they will profit.  to which she said, "I'm tired of going up to Atlanta and doing shoots when they don't even cover my travel expenses."

I began to ask her questions about the previous shoot.

There were about 30 models involved in this shoot.  I've told her she needs to contact some of the others and find out what they were promised/told/signed.


Thanks again guys.

Ed
Jan 04 13 11:21 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Joe WoW Photos wrote:
I'm surprised there was even a calendar made...  are you sure the ones she's sold got delivered?

They actually did produce a Calendar.  I, to help her out, bought one and received it.

Jan 04 13 11:22 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Loki Studio wrote:

This is obviously a terrible system for the model to get a commission from since it depends on the optional action of a buyer.   Why would anybody agree to this?

And a ridiculous way to run a business. Do they expect the only people ordering the calendar will know the models and/or be their friends? It would appear so.

Can you imagine going online to order the SI Swimsuit Calendar and there is an option for referrals and you have to check which model sold you the calendar?

Dear Model...we're not going to pay you. But we're going to sell this calendar commercially. However, here's a great deal. You do all the legwork to promote and sell our product and you might make a few dollars. But only if the person ordering specifically states they bought it from you.

Wow...great deal.

Jan 04 13 11:35 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Ed Woodson Photography wrote:
They actually did produce a Calendar.  I, to help her out, bought one and received it.

Yes, but did you specifically state she was your salesperson? lol

This reminds me of the employees at Forever 21 and asking you to mention their name at the register so they are sure to get their commission.

Jan 04 13 11:36 am  Link  Quote 
Photographer
Fleming Design
Posts: 1,070
Hartford, Connecticut, US


How many calendars did your friend sell and what was she to receive per calendar?  If, by her account she is due a total of $9 for what she agreed to, what would she sue about other than the $9?
Jan 04 13 11:37 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Michael Pandolfo wrote:

Yes, but did you specifically state she was your salesperson? lol

This reminds me of the employees at Forever 21 and asking you to mention their name at the register so they are sure to get their commission.

Of course I did.  Fortunately, it is indicated on my PayPal receipt.

Jan 04 13 11:42 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Fleming Design wrote:
How many calendars did your friend sell and what was she to receive per calendar?  If, by her account she is due a total of $9 for what she agreed to, what would she sue about other than the $9?

Where did you come up with $9?  I don't recall posting any specific figures.

Jan 04 13 11:43 am  Link  Quote 
Photographer
Fleming Design
Posts: 1,070
Hartford, Connecticut, US


Ed Woodson Photography wrote:

Where did you come up with $9?  I don't recall posting any specific figures.

I just made it up.  You said she only sold a few.  And if only 3 people mentioned her name and she was to get $3 per she is owed $9.  How much is she owed?  That is really what this is about.

Jan 04 13 11:46 am  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Fleming Design wrote:

I just made it up.  You said she only sold a few.  And if only 3 people mentioned her name and she was to get $3 per she is owed $9.  How much is she owed?  That is really what this is about.

No, that's not actually what this is about.  What it's about is someone taking advantage of a young, eager Model and if she can do anything about it.

Jan 04 13 11:51 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Fleming Design wrote:

I just made it up.  You said she only sold a few.  And if only 3 people mentioned her name and she was to get $3 per she is owed $9.  How much is she owed?  That is really what this is about.

I don't know how much the calendar costs but I can confidently say the talent is not getting $3 per calendar sold unless each calendar is $60+. Any commission rates I've known have been more in the 3-5% range of the gross sale (and maybe up to 10% on add-ons).

But I digress. This isn't about what the model should be owed but rather the company has a legal right to profit from the images commercially w/o a model release/usage agreement. That I don't know.

Jan 04 13 11:55 am  Link  Quote 
Photographer
AJScalzitti
Posts: 12,516
Atlanta, Georgia, US


Larry Quick wrote:
The photographers should not be selling any of the photos without a signed release. She does have recourse, but that would involve an attorney. She should call the people that are involved and maybe threaten them with a lawsuit if she doesnt get paid and see what happens with that avenue. Or order more calendars to sell and then don't send them the money after she sells them. Of course all of this is just my 2 cents worth. As a photographer myself I would never not share in the profits with one of my models, either paying them for the shoot or giving them a percentage of the profits from the sales of the calendars.

She could try, but she was obviously aware of the shoot and its nature as a Calendar shoot for sale.  Could she convince someone that she did not know this or consent to it?  A don't think a jury or judge would buy it and she would most likely loose the case.

Jan 04 13 11:57 am  Link  Quote 
Photographer
John Edward
Posts: 2,462
Dallas, Texas, US


Ed Woodson Photography wrote:

No, that's not actually what this is about.  What it's about is someone taking advantage of a young, eager Model and if she can do anything about it.

No, she's screwed, IMHO

The only time a calendar deal is ever worth it, is if it's for a company, who every year makes a calendar, and has the distribution already in place to send out many, many of them already. Like a tool company, or a Paint store chain, that sells automotive paint, or something like that. And they always pay the models upfront.

Anything else is somebody's pipe dream.

Jan 04 13 11:58 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Ed Woodson Photography wrote:
No, that's not actually what this is about.  What it's about is someone taking advantage of a young, eager Model and if she can do anything about it.

I would consider this though...taking advantage of a model doesn't make the practice not legal. Naivete isn't a defense in any Court I know.

I don't know what any agreement (verbal or otherwise) entailed but it sounds like she agreed to the deal...and the release of her likeness.

My question would be, she obviously agreed to the shoot itself so whether a Release was signed or not, her authorization to take her photo and use her likeness was implicit. I'm sure the company would have no problem documenting that the model did indeed agree to release images of her likeness.

Now, usage is another matter. Obviously, I'm not a lawyer so this is just my perspective. But if there is any documentation that she agreed to the deal (which it sounds like she did), there is little legal recourse.

You may think she is a young, naive model who got screwed...and that may indeed be the case. But that doesn't mean she can back out of it and prevent the images from release after-the-fact because she was informed she didn't get a good deal and now has remorse.

She's an adult and that's how the Courts would view it.

Jan 04 13 12:00 pm  Link  Quote 
Photographer
Fleming Design
Posts: 1,070
Hartford, Connecticut, US


Ed Woodson Photography wrote:

No, that's not actually what this is about.  What it's about is someone taking advantage of a young, eager Model and if she can do anything about it.

Is the model an adult?  "According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for."   Now I don't like con jobs either, but what do you think this adult is entitled to other than to be paid from the sales of Calendars that she is, herself, responsible for if that was her agreement?  Maybe they are waiting for her cut to hit $10 before they send a check.

Jan 04 13 12:04 pm  Link  Quote 
Photographer
Looknsee Photography
Posts: 21,021
Portland, Oregon, US


I'm feeling curmedgeonly today.  Apologies in advance.

I say that by ignoring the release at the time of the shoot, both sides are getting what they deserve.

Beyond that, there are too many details that may impact any legal decision.  A real lawyer would know better; I'm not sure what questions to ask.
Jan 04 13 12:04 pm  Link  Quote 
Photographer
Mark Salo
Posts: 8,145
Olney, Maryland, US


Ed Woodson Photography wrote:
According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for.  So far, she's received nothing from them for the few Calendars that she has sold.

This reminds me of the beauty contests where the model has to get sponsors to pay her way.

Also, nearly everyone had a 2013 calendar by the time that this was published.

It's a bad situation all around.  Sorry.

Jan 04 13 12:09 pm  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Michael Pandolfo wrote:

I would consider this though...taking advantage of a model doesn't make the practice not legal. Naivete isn't a defense in any Court I know.

I don't know what any agreement (verbal or otherwise) entailed but it sounds like she agreed to the deal...and the release of her likeness.

My question would be, she obviously agreed to the shoot itself so whether a Release was signed or not, her authorization to take her photo and use her likeness was implicit. I'm sure the company would have no problem documenting that the model did indeed agree to release images of her likeness.

Now, usage is another matter. Obviously, I'm not a lawyer so this is just my perspective. But if there is any documentation that she agreed to the deal (which it sounds like she did), there is little legal recourse.

You may think she is a young, naive model who got screwed...and that may indeed be the case. But that doesn't mean she can back out of it and prevent the images from release after-the-fact because she was informed she didn't get a good deal and now has remorse.

She's an adult and that's how the Courts would view it.

I haven't seen the correspondence that she had with the group.  I think that there's a pretty good chance that it contains verbage that would imply her agreement.  I don't know.

What I do know is that she won't make this mistake a second time.

Unfortunately, there are way too many young women enamoured with the idea of "being on a Calendar" that they become easy marks for unscupulous Photographers.

At this point, I have the answers that I was looking for and will have no futher in this thread.

Thanks again to all who have answered.

Jan 04 13 12:11 pm  Link  Quote 
Photographer
Vito
Posts: 4,148
Brooklyn, New York, US


Most important is what is the right to privacy/right to publicity law in Georgia. Without knowing that, this whole thread is pointless. They may (or may not) need a release to sell a calendar.

Then, can she do anything about it?
Jan 04 13 12:23 pm  Link  Quote 
Photographer
PBE Photography
Posts: 32
Atlanta, Georgia, US


Ed she could do small claims court since this is civil matter with what I can only imagine is very little money. Win or lose, at a minimum she could really make those guys squirm.

It's sad that ass-bags like this ruin things for legit professionals. Hopefully she gets the word out about these types of shoots and others can avoid them.
Jan 04 13 01:12 pm  Link  Quote 
Photographer
Fleming Design
Posts: 1,070
Hartford, Connecticut, US


I'd be willing to bet that the calendar photographer in question is a member of MM.
Jan 04 13 01:37 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 35,090
San Francisco, California, US


Michael Pandolfo wrote:
And a ridiculous way to run a business.

+100

This is an example of nobody doing business like a business person.  She is probably entitled to something, but who the heck knows what.  Georgia doesn't have a statutory right to publicity, but it does have a common law one.

This sounds like a contract issue, but I doubt that anyone knows what the contract is.

Jan 04 13 01:43 pm  Link  Quote 
Photographer
Ed Woodson Photography
Posts: 2,644
Savannah, Georgia, US


Fleming Design wrote:
I'd be willing to bet that the calendar photographer in question is a member of MM.

They, indeed, are MM members.

Jan 04 13 01:58 pm  Link  Quote 
Photographer
Ben Cook - BRC Photo
Posts: 2,396
Atlanta, Georgia, US


Very familiar with these guys. Sadly; not only do they continue to keep this up, but for some reason, models just keep streaming and streaming into the studio where they shoot. 

Georgia DOES have extremely liberal laws regarding Model Releases for personal portfolio use (online and print); however, commercial usage of the same images is a little more murky.  It will most likely be pretty cost prohibitive to have her actually retain an attorney and seek any type of relief.  Maybe she's lucky and has a decent job and/or family with deeper pockets and she can afford one. 

There are a number of us that would like to see these guys actually be held responsible.
Jan 04 13 04:06 pm  Link  Quote 
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