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first12
Photographer
Andrew Thomas Evans
Posts: 24,078
Toulon, Provence-Alpes-Côte-d'Azur, France


e m i l y wrote:
Assuming she signed a release, you owe her nothing.

She got images, you get cash - and perhaps a lot of it, depending.

This is why models should always be careful about what they sign, and in general, never sign commercial releases on trade shoots. smile

Although rare, the image could be used in a national campaign and the model wouldn't receive a cent - when she could have been paid in cash and have a tearsheet.

+1

Although legal, I wonder if a national campaign with a budget would actually use something created by a test. I mean if all the paperwork was there then it's legal, but if I was the talent and knew the photographer made money, I'd be calling a lawyer anyway. Could create some headaches that wouldn't have been there normally.

Just thinking out loud.




Andrew Thomas Evans
www.andrewthomasevans.com

Feb 09 13 02:29 pm  Link  Quote 
Photographer
Blaneyphoto
Posts: 546
New York, New York, US


JOEL McDONALD wrote:
How does a photog compensate a model for a shot or shots taken during a TF shoot that ended up being suitable to be used commercially?

Does the photog pay her the hourly rate she normally would have gotten for a paid commercial shoot?

I think its important to sort out usage well in advance of a shoot. I've certainly had plenty of models work on a TF basis for commercial shoots - the value of the photos received was adequate compensation.

Feb 09 13 03:43 pm  Link  Quote 
Model
angel emily
Posts: 1,020
Boston, Massachusetts, US


Andrew Thomas Evans wrote:
+1

Although legal, I wonder if a national campaign with a budget would actually use something created by a test. I mean if all the paperwork was there then it's legal, but if I was the talent and knew the photographer made money, I'd be calling a lawyer anyway. Could create some headaches that wouldn't have been there normally.

Just thinking out loud.




Andrew Thomas Evans
www.andrewthomasevans.com

Right - I realize it was an exaggeration, but theoretically, it could happen.  When a model signs a release, she waives her rights.  Yes, interesting to think if the right to pursue further profit would hold up.

Feb 09 13 04:09 pm  Link  Quote 
Photographer
Andrew Thomas Evans
Posts: 24,078
Toulon, Provence-Alpes-Côte-d'Azur, France


e m i l y wrote:
Right - I realize it was an exaggeration, but theoretically, it could happen.  When a model signs a release, she waives her rights.

Yup, which is why I'm surprised most models will gladly sign a release for just any old photographer.




Andrew Thomas Evans
www.andrewthomasevans.com

Feb 09 13 04:12 pm  Link  Quote 
Photographer
Zack Zoll
Posts: 2,379
Glens Falls, New York, US


bmiSTUDIO wrote:

In the US, as copyright owner, the photographer doesn't even need a model release to sell a photo or print. Model releases are not meant to designate what  a photographer can or cannot do. I dare say most models and photographers really have no idea what model releases are. You need to obtain a book (I use "Photographer's Legal Guide by Carolyn Wright, Esq. - lawyer and photographer)  or a lawyer that explains all the legal issues that people on MM claim to know about, but really have no clue.

Correct.  In the US, rights are based mostly off of 'reasonable expectations.'  In other words, if she knew that you were a working photographer (like if, say, she came to your studio) and still agreed to pose for you, then she cannot make a reasonable claim that she didn't know you might use the images commercially.  You don't need the model release to do anything, just like you don't need to do anything to copyright your images.

What the release does (or copyrighting your images, for that matter) is stop the argument before it can even start.  Without a release she could sue you, and if lawyers or judges were involved, you would probably win.  Not definitely, but probably.  After all - she was posing for a photographer - what did she think you were going to do with the images?  But that would cost you money.  By having the release, you never need to have that argument.  Her conversation with her lawyer would go something like:

"I want to sue this guy for profiting off my image."
"Did you sign a release?"
"Yes."
"Then have a nice day."

The only time you really need a release is when you photograph someone that you see out on the street.  Otherwise, some implicit agreement is already there when they agree to pose for you in your studio.

JOEL McDONALD wrote:
Ok, so basically and depending how the signed release/property rights is worded it's really the honor system to "reward" the model.

Pretty much, yeah.  if you make a bunch of money, it's bad karma not to give something back.  Even if you only make a little, you should still give something back if you want to work with them again, or if you're worried about your reputation.

I'm working on a book right now.  My models will be 'compensated' with a copy, when I finally finish it.  Anyone that is shot for the book, but gets cut, gets nothing.

Feb 09 13 04:58 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


Zack Zoll wrote:
Correct.  In the US, rights are based mostly off of 'reasonable expectations.'  In other words, if she knew that you were a working photographer (like if, say, she came to your studio) and still agreed to pose for you, then she cannot make a reasonable claim that she didn't know you might use the images commercially.  You don't need the model release to do anything, just like you don't need to do anything to copyright your images.

What the release does (or copyrighting your images, for that matter) is stop the argument before it can even start.  Without a release she could sue you, and if lawyers or judges were involved, you would probably win.  Not definitely, but probably.  After all - she was posing for a photographer - what did she think you were going to do with the images?  But that would cost you money.  By having the release, you never need to have that argument.  Her conversation with her lawyer would go something like:

"I want to sue this guy for profiting off my image."
"Did you sign a release?"
"Yes."
"Then have a nice day."

The only time you really need a release is when you photograph someone that you see out on the street.  Otherwise, some implicit agreement is already there when they agree to pose for you in your studio.


Pretty much, yeah.  if you make a bunch of money, it's bad karma not to give something back.  Even if you only make a little, you should still give something back if you want to work with them again, or if you're worried about your reputation.

I'm working on a book right now.  My models will be 'compensated' with a copy, when I finally finish it.  Anyone that is shot for the book, but gets cut, gets nothing.

You may want to look at the applicable law in your state.
In PA http://rightofpublicity.com/statutes/pennsylvania
In NY http://codes.lp.findlaw.com/nycode/CVR/5/50
and http://codes.lp.findlaw.com/nycode/CVR/5/51

Feb 09 13 06:23 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


JOEL McDONALD wrote:
How does a photog compensate a model for a shot or shots taken during a TF shoot that ended up being suitable to be used commercially?

Does the photog pay her the hourly rate she normally would have gotten for a paid commercial shoot?

The same way that the photographer gets compensated when a model books a job with the photos the photographer supplied from the shoot.

Feb 09 13 07:44 pm  Link  Quote 
Photographer
JOEL McDONALD
Posts: 608
Portland, Oregon, US


RKD Photographic wrote:

I think the difference here is that a TF shoot is perceived as more of a collaboration than a paid-shooting - we try to shoot TF images that benefit both parties, whereas with a pay-shoot I might shoot images the model would have no interest in ever seeing. the model feels rightly or wrongly that she has more investment in the images from a TF shoot - hence the slew of threads about models wanting 'more' from them...

This is what I was thinking too.

Feb 09 13 08:51 pm  Link  Quote 
Photographer
JOEL McDONALD
Posts: 608
Portland, Oregon, US


bmiSTUDIO wrote:
...The only time you really need a release is when you photograph someone that you see out on the street.  Otherwise, some implicit agreement is already there when they agree to pose for you in your studio...

Actually, as per AP media law and photojournalism practices, you do NOT need a release from people "on the street" that appear in your photos. They're in the public domain.

The limitation is if the image they're recognizable in is used in a commercial way (advertising) or if the image is used in some way to defame or ridicule the individual without cause.

Feb 09 13 08:58 pm  Link  Quote 
Photographer
Jose Deida
Posts: 1,143
BLANDON, Pennsylvania, US


MC Photo wrote:

The same way that the photographer gets compensated when a model books a job with the photos the photographer supplied from the shoot.

+1 big_smile

Feb 09 13 09:01 pm  Link  Quote 
Photographer
Zack Zoll
Posts: 2,379
Glens Falls, New York, US


JOEL McDONALD wrote:

Actually, as per AP media law and photojournalism practices, you do NOT need a release from people "on the street" that appear in your photos. They're in the public domain.

The limitation is if the image they're recognizable in is used in a commercial way (advertising) or if the image is used in some way to defame or ridicule the individual without cause.

Joel, I'm responding to this because it was actually me that said it ... I think the quote tags got mixed up.

I used 'person on the street' as an example.  I didn't literally mean a person on the street - I just meant someone that you might photograph in an informal way, as opposed to in your studio.  To back up your point, there was an issue a while back with people being photographed on the subway in NYC.  Well there have been a lot, but one somewhat recently where model releases were actually mentioned.  I don't remember specifics, I'm sorry - but it was for a book, and it was released something like 4 years ago.

The conclusion was that since these people had no reasonable expectation of privacy, and since the images were being sold as 'art' and not used 'commercially', no model release was necessary.  The important part here is the 'reasonable expectation.'


NewBoldPhoto wrote:
You may want to look at the applicable law in your state.
In PA http://rightofpublicity.com/statutes/pennsylvania
In NY http://codes.lp.findlaw.com/nycode/CVR/5/50
and http://codes.lp.findlaw.com/nycode/CVR/5/51

Section 50 states that you need written consent to sell a portrait commercially, and is under the 'privacy' heading.  Section 51 states (and I only think this - the wording is intentionally obtuse) that you can sue for damages when that privacy has been breached, or if the sitter was not told of your intentions.

Now, if you meet a model on MM, then they know you are a photographer, and have at least something vaguely resembling a web page.  If they come to your studio, or if you have part of your CV posted on your profile, then they know that you are a working photographer, and most likely that you make money from images of models.  If they choose to pose for you, then they have no reasonable way that they can claim they didn't know that you would be attempting to profit from their likeness.  Even if the image goes onto a website, it can still be construed as a 'commercial' image if it is used for the purpose of trying to generate more business.  In the event that she is a paid model (even if she didn't charge you specifically) there is even less leeway for her to claim 'I didn't know he was going to do that,' because if she works for money than she's a professional, and that knowledge is something that is expected from someone of her profession.

By the spirit of the law, you don't need a model release, as a model in that situation could not reasonably claim ignorance.

But the spirit and the actual result of the law differs vastly in some cases, which is why I say that even though you might technically be right, only a lawyer with some experience in these matters can tell you how it would actually pan out.  Websites can tell you how the law is written, but only an experienced lawyer can tell you how the law is used.

Feb 10 13 06:10 am  Link  Quote 
Photographer
SensualThemes
Posts: 3,042
Swoyersville, Pennsylvania, US


1k-words-photograpy wrote:
Thats a good question. I would hazard that most shooters take their money and run with it since they own the photo.

I believe the model should get paid and since she shot without compensation. In my TF release I say that if I sell a photo from the session within the a certain period of time (depending on the model, session, etc but typically a year) that she receives 30% of the profit. Its only happened to me once, but it felt good because she was floored it could happen.

This is fair. My release says if I find a sale...she gets 30pct. If she finds a market and closes it with my approval...45.  Sales commission

Feb 10 13 07:30 am  Link  Quote 
Photographer
Ali Choudhry Photo
Posts: 176
Brisbane, Queensland, Australia


For me, the question isn't about the existence of a release since I always get a release... And unless I'm being paid (ie it's TF), my release gives me full rights to the images.

Having said that, if you're working TF then the model's payment was the pictures and any money you do give her is out of good will.
Feb 10 13 03:48 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


Zack Zoll wrote:

JOEL McDONALD wrote:
Actually, as per AP media law and photojournalism practices, you do NOT need a release from people "on the street" that appear in your photos. They're in the public domain.

The limitation is if the image they're recognizable in is used in a commercial way (advertising) or if the image is used in some way to defame or ridicule the individual without cause.

Joel, I'm responding to this because it was actually me that said it ... I think the quote tags got mixed up.

I used 'person on the street' as an example.  I didn't literally mean a person on the street - I just meant someone that you might photograph in an informal way, as opposed to in your studio.  To back up your point, there was an issue a while back with people being photographed on the subway in NYC.  Well there have been a lot, but one somewhat recently where model releases were actually mentioned.  I don't remember specifics, I'm sorry - but it was for a book, and it was released something like 4 years ago.

The conclusion was that since these people had no reasonable expectation of privacy, and since the images were being sold as 'art' and not used 'commercially', no model release was necessary.  The important part here is the 'reasonable expectation.'



Section 50 states that you need written consent to sell a portrait commercially, and is under the 'privacy' heading.  Section 51 states (and I only think this - the wording is intentionally obtuse) that you can sue for damages when that privacy has been breached, or if the sitter was not told of your intentions.

Now, if you meet a model on MM, then they know you are a photographer, and have at least something vaguely resembling a web page.  If they come to your studio, or if you have part of your CV posted on your profile, then they know that you are a working photographer, and most likely that you make money from images of models.  If they choose to pose for you, then they have no reasonable way that they can claim they didn't know that you would be attempting to profit from their likeness.  Even if the image goes onto a website, it can still be construed as a 'commercial' image if it is used for the purpose of trying to generate more business.  In the event that she is a paid model (even if she didn't charge you specifically) there is even less leeway for her to claim 'I didn't know he was going to do that,' because if she works for money than she's a professional, and that knowledge is something that is expected from someone of her profession.

By the spirit of the law, you don't need a model release, as a model in that situation could not reasonably claim ignorance.

But the spirit and the actual result of the law differs vastly in some cases, which is why I say that even though you might technically be right, only a lawyer with some experience in these matters can tell you how it would actually pan out.  Websites can tell you how the law is written, but only an experienced lawyer can tell you how the law is used.

Might want to re-read as no where is it suggested that what you think the subject of the photo should know conveys any right to commercial usage. Nor is  any of it vague.

Feb 10 13 08:00 pm  Link  Quote 
Photographer
Star
Posts: 17,921
Los Angeles, California, US


JOEL McDONALD wrote:
How does a photog compensate a model for a shot or shots taken during a TF shoot that ended up being suitable to be used commercially?

Does the photog pay her the hourly rate she normally would have gotten for a paid commercial shoot?

why, in a commercial shoot she would get paid money but no photos. In a TF shoot I have paid her in photos. Why am I paying her twice?

Feb 10 13 08:05 pm  Link  Quote 
Photographer
Zack Zoll
Posts: 2,379
Glens Falls, New York, US


NewBoldPhoto wrote:
Might want to re-read as no where is it suggested that what you think the subject of the photo should know conveys any right to commercial usage. Nor is  any of it vague.

Actually, there has been precedent in US courts that your occupation DOES affect your ability to sue for damages, and CAN cause you to be treated differently in the eyes of the law than a 'layman.'

The most obvious example is that those in the public eye (either celebrities, or those holding or running for public office) can be subjected to a much greater degree of gossip, ridicule, and even accusations before it becomes slander.  There are other examples, but since I don't have references, I won't mention them.  But the fact remains that in many cases, there is precedent that someone that works in a certain field understands what goes along with that, and the fact that they continue to operate in that field is considered a form of acceptance, if not understanding.

Again, if you're a professional photographer, and a professional model comes to your studio to pose, what is the expected outcome?  You're both doing it for a living, so clearly you are both trying to get paid.

Obviously this isn't black and white, or else we wouldn't even use model releases.  But precedent in other professional cases shows that the rights and expectations of a professional model are not the same as those of a non-model.

But all I can do is tell you that there is a difference.  As I've said, it would take an experienced legal mind to tell you how that would pan out.  And if there is no precedent regarding model releases, then even they couldn't promise you anything, since we're talking about a grey area here.

Feb 11 13 04:47 pm  Link  Quote 
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