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first12
Photographer
Mark
Posts: 2,889
New York, New York, US


I imagine a trail of emails between the model and the photographer that lists details of payments and  the model agreeing will lessen the need of a release,   Would be best to have a release though.
Jan 04 13 04:11 pm  Link  Quote 
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Photographer
Rays Fine Art
Posts: 5,932
New York, New York, US


laws of contract and privacy vary state by state so the only way to know is to consult a lawyer in that venue.

In practical terms, though, calendar sales being what they genrerally are, it's probably not worth anyone's time.

IMHO, as always.
Jan 04 13 06:41 pm  Link  Quote 
Photographer
joeyk
Posts: 14,587
Seminole, Florida, 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.

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.

This post is full of falsehood and misinformation.

Jan 04 13 06:47 pm  Link  Quote 
Hair Stylist
Platform Artist
Posts: 157
Chicago, Illinois, US


ouch!
Jan 04 13 06:53 pm  Link  Quote 
Photographer
IrisSwope
Posts: 14,801
Dallas, Texas, US


She sold some herself?

How is that going to hold up in court? I didn't sign a release giving them permission to sell them, yet I helped them sell them, and sold them myself? And afterwards say they don't have permission?
Jan 04 13 07:04 pm  Link  Quote 
Photographer
Christine Eadie
Posts: 2,613
Charleston, South Carolina, US


If she knows for a fact that she has money coming to her, she should write them a letter requesting the exact amount within 2 weeks (or some reasonable time frame). She should write that if she does not receive the amount she will file a complaint at small claims court. Make sure the letter is mailed by certified mail, return receipt so she will get a card from the USPS when they sign for the letter, which she can use as evidence in court. It is not very expensive to file at small claims court. But she should request in her complaint that her court costs be covered. Can't neglect to request costs and fees or you won't get them. Bring print-outs of all emails or contracts in which they promise to give her a portion of profits. Plus any evidence she has which shows how many calendars have been sold. I don't see why she would not win if she has evidence and no attorney would be required.
Jan 05 13 03:00 pm  Link  Quote 
Body Painter
Monad Studios
Posts: 9,309
Santa Rosa, California, US


You should ignore a lot of the advice given here, perhaps including mine.

The important question is not whether she's entitled to compensation but whether it's worth pursuing it.  Unless they're making a lot of money with the image of her, it's probably not.
Jan 05 13 03:08 pm  Link  Quote 
Photographer
ms-photo
Posts: 470
Portland, Oregon, US


joeyk wrote:

This post is full of falsehood and misinformation.

Ok, go ahead and refute it.

Jan 05 13 04:14 pm  Link  Quote 
Photographer
ms-photo
Posts: 470
Portland, Oregon, US


IrisSwope wrote:
She sold some herself?

How is that going to hold up in court? I didn't sign a release giving them permission to sell them, yet I helped them sell them, and sold them myself? And afterwards say they don't have permission?

Yes, exactly.

Also hard to claim any "right to privacy" stuff when she willingly posed for photos to be used in a calendar, then wants to complain that they used her photos in a calendar?

Jan 05 13 04:15 pm  Link  Quote 
Photographer
Jouissance Images
Posts: 744
Bloomington, Minnesota, US


With respect to the sources of legal advice given in this thread and others, I'm reminded of what we say in Minnesota on the hockey ice: "They couldn't find it  with with either hand." Sh-t for brains is another expression that comes to mind. It's amazing how many MM photographers think owning the copyright gives them the right to use the model's likeness for profit without his or her written permission. That's a different matter than owning the images, which does prohibit the model from using them. No problem so long as the photographer is content with keeping the images on his hard drive. When when it uses image commercially, e.g., sells it for use in an advertisment, etc., he better have the release signed by the model. It's what makes the transaction enforceable.  Not to have that release is amateur at best. Most markets will insist the photographer produce it. It's the photographer, not the model, who has that burden of that proof.
Jan 05 13 04:38 pm  Link  Quote 
Photographer
Jeffrey M Fletcher
Posts: 4,319
Asheville, North Carolina, US


Mark wrote:
I imagine a trail of emails between the model and the photographer that lists details of payments and  the model agreeing will lessen the need of a release,   Would be best to have a release though.

+1

I also was curious as to whether there was any written material such as email that could create an impression of an agreement.

Jan 05 13 06:41 pm  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,542
Tavai, Sigave, Wallis and Futuna


Jouissance Images wrote:
With respect to the sources of legal advice given in this thread and others, I'm reminded of what we say in Minnesota on the hockey ice: "They couldn't find it  with with either hand." Sh-t for brains is another expression that comes to mind. It's amazing how many MM photographers think owning the copyright gives them the right to use the model's likeness for profit without his or her written permission. That's a different matter than owning the images, which does prohibit the model from using them. No problem so long as the photographer is content with keeping the images on his hard drive. When when it uses image commercially, e.g., sells it for use in an advertisment, etc., he better have the release signed by the model. It's what makes the transaction enforceable.  Not to have that release is amateur at best. Most markets will insist the photographer produce it. It's the photographer, not the model, who has that burden of that proof.

You are irretrievably mixing some legal concepts here that simply can not be mixed.

photographers think owning the copyright gives them the right to use the model's likeness for profit without his or her written permission.

Profit has absolutely noting to do with anything. A photographer might think he can use a model's likeness for profit,    -well-    because they can. The photographer CAN license the image to any user who will not require a release, and do that for profit; a photographer "owns" the copyright, and, yes, they CAN sell that too, and for profit. The licensee or purchaser of the copyright, for their end use, might be the one that needs a release, but that has nothing to do with the photographer after the sale of the copyright unless they represent that a release exists when one does not. Further, depending on the state, any valid consent the model might give would not even necessarily have to be in writing.

No problem so long as the photographer is content with keeping the images on his hard drive.

Well, no. See immediately above. There are certain usage rights associated with copyright ownership, and arising out of First Amendment constitutional rights, that simply do not require a release. The photographer is not constrained by any law to doing nothing at all with their images simply because there is no release or other form of consent.

When when it uses image commercially, e.g., sells it for use in an advertisment, etc., he better have the release signed by the model.

As stated with the qualifier about use in advertising, this is correct. But using an image "commercially", such as an editorial use, is NOT the same as "commercial use" of the image, in "advertising" or "in the course of trade."

It's what makes the transaction enforceable.

Nothing to do with anything. You are not even clear here about what is enforceable or to be enforced against whom. But it is the contract, and the license if there is one at all, with the representations therein contained, and not the release [unless one is claimed to exist when it does not, and some other party has to rely on that claim] that makes a license or sale enforceable between a photographer, and, say, a client.

Studio36

Jan 05 13 07:35 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,466
Miami Beach, Florida, US


It's not simple.  As others have pointed out, whether or not a release is required has little to do with whether or not the photographer may make money from the image.



I wonder what type of calendar it is?

If the calendar is promoting a product or service, then they likely need a release.  For instance if the calendar was promoting a local auto garage.

The calendar might indirectly be promoting a product.  For instance if the model's are wearing a particular brand of bathing suit, and the brand is credited, then the calendar might be an advertisement for that brand of bathing suit.

If it's just a calendar of pretty girls that isn't promoting any products or services, then a release may not be required (although it may be a good idea).

If the models were promised particular compensation, and it is not being provided, then this is a contract issue.



These are complicated legal issues.  Don't rely on legal advice from the web.  I am not an attorney.  For reliable legal advice consult an attorney.
Jan 06 13 04:05 pm  Link  Quote 
Photographer
R A V E N D R I V E
Posts: 15,867
New York, New York, US


they can sell them, until she changes her mind

its likely that a court or the non-existent regulator would side with her, but in the mean time she should just sit back and keep track of the damages until they make it worthwhile for her to pursue
Jan 06 13 04:15 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,466
Miami Beach, Florida, US


R A V E N D R I V E wrote:
they can sell them, until she changes her mind

its likely that a court or the non-existent regulator would side with her, but in the mean time she should just sit back and keep track of the damages until they make it worthwhile for her to pursue

What legal reason do you see as requiring a release?

Remember, a release is not generally required in order to make money from the model's image, and frequently is not required in order to sell prints (Wedding photographers do not need model releases from the guests in order to sell prints to the bride).

Generally, a release is needed when the image is being used to promote a product or service.  A calendar of pretty girls may not be promoting a product or service.

Jan 06 13 05:10 pm  Link  Quote 
Photographer
Star
Posts: 17,909
Los Angeles, California, 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

If she knew the usage before the shoot then she has consented. All they need is an email, phone message etc... To Prove consent.

Jan 06 13 06:38 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,466
Miami Beach, Florida, US


Star wrote:

If she knew the usage before the shoot then she has consented. All they need is an email, phone message etc... To Prove consent.

In some states, if a release is required, it must be in writing.  A phone message would not constitute a release in one of those states.

Jan 06 13 07:08 pm  Link  Quote 
Photographer
John Jebbia
Posts: 27,612
Phoenix, Arizona, 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.

What a crappy deal. Sounds like Amateur Hour in Atlanta..

Jan 06 13 07:18 pm  Link  Quote 
Model
Aaliyah Love
Posts: 113
Los Angeles, California, US


ah forget it.. this forum is full of LOLz. smile
Jan 07 13 12:59 pm  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,113
Tampa, Florida, US


John Jebbia wrote:
What a crappy deal. Sounds like Amateur Hour in Atlanta..

Is it just me or do all of these type of "deals" originate in Atlanta? Scam Agencies, less-than-reputable business practices, etc.

Florida seems to be the haven for criminals hiding from the law. Atlanta seems to be the haven of shysters in the modeling industry.

Jan 07 13 01:11 pm  Link  Quote 
Model
Princess Dasha
Posts: 57
Malmö, Skåne, Sweden


As far as my geographical knowledge can reach there is nowhere that allows any party/third party to sell photos without the release of the person/people easily recognizable in the shoot. No, the photographer does not automatically have the right to use the photos either. Copy right and the right to use are different things. If it's a street photo they can be however as it is not considered something with a specific motif but just "people on the public streets"

What they did is very illegal and that's not an opinion, that's a fact! Provided that she didn't sign a release to allow them the right to use then what they did is illegal. Why do people that consider themselves professional still do this? Well, a large ego and the assumption that this model is just a naive little size who is unable to provide for herself, legal aid and what else it takes to take them down. But that's what they are, assumptions. In most states and countries you can receive free legal aid if your case gets approved.

It's funny how so many threads are being started on this forum about "not receiving photos, not signing a release, getting screwed again" and then blaming it on the industry! Very unfair... It's a matter of professionalism and how serious you are in this business. A contract or a release must be signed prior to a shoot - send the contract prior to the shoot in addition to. If they disagree with what's written before the shoot then why in the world would they agree to it after?
Jan 08 13 03:29 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,466
Miami Beach, Florida, US


Princess Dasha wrote:
As far as my geographical knowledge can reach there is nowhere that allows any party/third party to sell photos without the release of the person/people easily recognizable in the shoot. ...

The United States would be a country where a third party is allowed to sell photos without the model's permission.

In the US, whether or not you need permission depends on the context of the usage, not whether or not the photographer is being paid for the image.

For instance, if I shoot a bikini-clad model in my studio, and she is arrested the next day, I can sell a photo of her to the newspaper, and they can use it in the story about her arrest.  I don't need her permission even if the newspaper pays me $10,000 for the image.

On the other hand, the model's permission is needed if that same photo is to be used to promote the bikini she is wearing.  Her permission is needed, even if I give the photo to the bikini company for free.


I probably don't need the model's permission to make a large artistic print of the photo and sell it in a gallery for $20K.  I might need her permission to use that photo on a poster promoting the gallery.


The specific rules in the US vary from state to state.  Generally permission is needed when using the model's recognizable likeness to promote goods and/or services.  Generally I don't need permission simply to make money off the image.

It's about how the image is being used, not whether (or how much) money is involved.

A calendar is interesting because it might be editorial or commercial.  Is the calendar simply an informational chart of days with photos to make it artistic?  Or is the calendar an advertisement trying to promote some product or service (i.e. a bikini manufacturer, a bar, or even some non-profit)?

Of course, the above is a gross simplification.  The actual laws can be quite complicated and there are lots of exceptions.  Never take legal advice from the web.  I am not an attorney.  Always consult an attorney for reliable legal advice.

Jan 08 13 04:37 am  Link  Quote 
Photographer
RKD Photographic
Posts: 3,263
Iserlohn, North Rhine-Westphalia, Germany


Princess Dasha wrote:
As far as my geographical knowledge can reach there is nowhere that allows any party/third party to sell photos without the release of the person/people easily recognizable in the shoot.

No, the photographer does not automatically have the right to use the photos either.

UK for one. And yes they do.
No model-release is required for UK photographers. Some clients might insist on it if they want to use the image internationally, but it's not mandatory for the photographer to provide one.

Jan 08 13 06:32 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,542
Tavai, Sigave, Wallis and Futuna


RKD Photographic wrote:

Princess Dasha wrote:
As far as my geographical knowledge can reach there is nowhere that allows any party/third party to sell photos without the release of the person/people easily recognizable in the shoot.

No, the photographer does not automatically have the right to use the photos either.

UK for one. And yes they do.
No model-release is required for UK photographers. Some clients might insist on it if they want to use the image internationally, but it's not mandatory for the photographer to provide one.

INSIDE THE UK [in theory at least] one could even sell rights and license to use, and the client / purchaser / licensee could use, someone's image for actual commercial purposes, e.g. advertising, without a specific release, as long as they hold short of engaging in "passing off."

Studio36

Jan 08 13 07:37 am  Link  Quote 
Photographer
7imaging
Posts: 751
Tampa, Florida, US


So she traveled to ATL knowing the purpose of the shoot. She also knew the payment conditions of which she would (possibly) be paid... didnt sign anything...sells the calendars herself and now wants to think about 'releases'. Im not saying what the photographer did was the morally the 'right thing to do', but she knew all this going into the project. I'm not sure she would be taken seriously in any type of litigation.
Jan 08 13 07:47 am  Link  Quote 
Photographer
Digitoxin
Posts: 13,335
Houston, Texas, US


Princess Dasha wrote:
What they did is very illegal and that's not an opinion, that's a fact! Provided that she didn't sign a release to allow them the right to use then what they did is illegal.

Much of your other assertions in your post have already been addressed above and have been shown that your comments are not as universal as you might think.

Now, let me address this:

What is a "release"?  Many would argue it is a document wherein the model consents to allow her likeness to be used in certain ways (or all ways) for some duration (or in perpetuity) and in some geography (or everywhere) for some type of Consideration.  Your "very illegal.... That's a fact" comment may not be correct depending on the jurisdiction.  Some jurisdictions allow ORAL releases.  Others might "imply" releases from, say, email exchanges.  I don't know what the law is in GA (I always get signed releases) but, what if:

there exists a series of emails which clearly delineate the nature of the shoot, the type of compensation, the usage of the images, the duration of use, and, ask if those terms are to the model's liking, all she needs to do is show-up for the shoot?

Do you see that there is the possibility of a "release" being formed here?  Again, in GA, a release may need to be written (IDK) and signed.  But, this email chain (if it exists) might be sufficient in some jurisdictions to be able to form a release.

Jan 08 13 08:37 am  Link  Quote 
Model
MB Jen B
Posts: 2,863
Clarksville, Tennessee, US


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

..
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?

...TIA

Ed

I think they can. Was there any communication about the shoot and her agreeing to do it in any emails? Even without that, I think nothing can stop them from actually selling them without her release. Her recovering anything may involve litigation but...who is going to chase after that? I wouldn't.

She could ask them, has she tried that?
Jen
fwiw I sign releases when asked but, feel that our emails and messages fully demonstrate mutual consent and that releases are really worthless...at least for the model anyways!

Jan 08 13 09:22 am  Link  Quote 
Photographer
Wolfstar Studio
Posts: 861
Cross Roads, Texas, US


Ed Woodson Photography wrote:
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?

Not opinion, fact. Legally speaking they can't publish the calendars and sell them without risking a lawsuit. Yes, they own the pictures, but it's the use that's important here. If the models decide they're depicted "in a bad light" they can sue and will most likely win. Copyright and privacy laws are merky to say the least, but it's pretty clear that an unreleased photo is worthless except for your own portfolio. Maybe. They could, possibly, give them away, but that's a sticky mess to try.

There are also many cases of people suing after the fact to collect fees and damages from photos published of them that were not released. BTW, this also goes for photographers if someone uses one of your photos without permission (regardless of what's actually in the photo).

Jan 08 13 09:27 am  Link  Quote 
Photographer
RKD Photographic
Posts: 3,263
Iserlohn, North Rhine-Westphalia, Germany


Wolfstar Studio wrote:

Not opinion, fact. Legally speaking they can't publish the calendars and sell them without risking a lawsuit. Yes, they own the pictures, but it's the use that's important here. If the models decide they're depicted "in a bad light" they can sue and will most likely win. Copyright and privacy laws are merky to say the least, but it's pretty clear that an unreleased photo is worthless except for your own portfolio. Maybe. They could, possibly, give them away, but that's a sticky mess to try.

There are also many cases of people suing after the fact to collect fees and damages from photos published of them that were not released. BTW, this also goes for photographers if someone uses one of your photos without permission (regardless of what's actually in the photo).

After all the information above clearly stating that there is at the very least a degree of 'grey-area' in this, you still persist in stating this as 'fact'... did you even read any of the other posts?

Jan 08 13 09:39 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,466
Miami Beach, Florida, US


Wolfstar Studio wrote:

Not opinion, fact. Legally speaking they can't publish the calendars and sell them without risking a lawsuit. Yes, they own the pictures, but it's the use that's important here. If the models decide they're depicted "in a bad light" they can sue and will most likely win. Copyright and privacy laws are merky to say the least, but it's pretty clear that an unreleased photo is worthless except for your own portfolio. Maybe. They could, possibly, give them away, but that's a sticky mess to try.

There are also many cases of people suing after the fact to collect fees and damages from photos published of them that were not released. BTW, this also goes for photographers if someone uses one of your photos without permission (regardless of what's actually in the photo).

Copyright law and privacy laws are generally fairly clear.  What makes them seem murky is the large of amount of incorrect information posted on MM as 'facts'.

Yes, if they publish the calendar, they can be sued.  They can be sued even if they have a release.  The question is whether or not they are likely to lose in court.

It has been established that the model was well aware of the calendar when she posed.  In states where a release does not need to be written, the prior communications may constitute a legal record of the release.  Even without a  record, the intent of the photographer was clear, and thus the model's posing may constitute an implied release.

In states where a release must be in writing, this may not count as a release.


Without knowing the nature of the calendar it isn't clear if a release is even required.  If the calendar is not promoting a product or service, then it may not need a release. 

In some states a release is required for portfolio use.  Thus if the photographer was only using the calendar to promote his business (portfolio use) he would need a release.


Go to a public park and take a photo of a 20 year old stranger sitting on a park bench.  In the US, you don't need her permission, and this is perfectly legal as there is no expectation of privacy.  If the local paper is running a story on planned improvements to the park, you can sell them the photo and they can use it.  There is no legal requirement to get the model's permission, or share revenue with her. 

It is the context of the use that determines if a release is needed.  Whether or not the photographer is selling the image, or giving it away, is generally not relevant.


Of course, whether or not a release is legally required is a separate question from whether or not the photographer is treating the model in a reasonable fashion.

Jan 08 13 09:46 am  Link  Quote 
Photographer
EdwardKristopher
Posts: 3,348
Tempe, Arizona, US


There's an awful lot of legal speculation going on around here!  :-)
Jan 08 13 10:03 pm  Link  Quote 
Photographer
AJScalzitti
Posts: 12,270
Atlanta, Georgia, US


If it has not already been said the calendar in question is promoting the models in it.  Sort of a top models of GA and it was invite only for the winners...
Jan 08 13 10:12 pm  Link  Quote 
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