Rick OBanion Photo wrote:
Can Americans stop acting like the laws of the US apply everywhere?

I would submit that "get a clear agreement in writing, on forms approved by a local lawyer, and follow  that agreement" is fairly good advice no matter where you are.

Barely StL wrote:

Barely StL wrote:
Ask a lawyer.

In some states noncommercial usage (such as portfolio use) does not require a release. In some states it does.

My IP lawyer has told me that courts in some jurisdictions have ruled that a release must specifically permit nudes in order for nudes to be used. I have no idea which jurisdictions those are.

I have no idea. All I know is that we inserted the words "nude or clothed" in my release form, and he said, "Now you don't have to worry about it.!

I'd love to see the decisions your lawyer told you about. I've done searches and got zero hits for that issue.  I cant even find underlying law to support it. none of the privacy and right-to-image statutes mention nudes and/or the distinction.

Rick OBanion Photo wrote:
Can Americans stop acting like the laws of the US apply everywhere?

Can Canadians stop acting like the OP is from somewhere other than the US?

Did you think the OP was asking for a friend who's living in Mississauga? He's in West Hollywood.

Maybe you could have saved that comment for a thread where the OP wasn't actually FROM the United States?

M Pandolfo Photography wrote:
Why are so many people responding as if the OP were the model? Is the avatar throwing people off? The OP is a photographer (who I assume is dealing with this situation with a male model).

I noticed that, but something about the phrasing made me think he was the model in question.  Still, most of my comments are about what I think photographers should do, since they have control of the images and, generally, the paperwork.

Rick OBanion Photo wrote:
Can Americans stop acting like the laws of the US apply everywhere?

M Pandolfo Photography wrote:
Can Canadians stop acting like the OP is from somewhere other than the US?

Did you think the OP was asking for a friend who's living in Mississauga? He's in West Hollywood.

Maybe you could have saved that comment for a thread where the OP wasn't actually FROM the United States?

That too.

M Pandolfo Photography wrote:

Can Canadians stop acting like the OP is from somewhere other than the US?

Did you think the OP was asking for a friend who's living in Mississauga? He's in West Hollywood.

Maybe you could have saved that comment for a thread where the OP wasn't actually FROM the United States?

But kudos for spelling Mississauga right...

Chesterfield Hector wrote:
It would be polite to ask first. Just out of common courtesy. However, why would someone shoot nudes if they didnt expect them to be used. I would ask before posting them online  as once someothing is online it is there forever.

I shot nudes with a gorgeous model not too terribly long ago that didn't want the shots posted here or anywhere else that her family and friends might see them. We did the shoot because it was fun and the pictures look wonderful, but they're not getting used at the moment out of respect for her. We've shot nudes on more than one occasion with the understanding that the nudes were just us having fun shooting together.

So, I guess to answer your question "why would someone shoot nudes if they didnt expect them to be used[?]" Sometimes it's just fun, but the risk of having the shots "out there" is too great.

You alluded to this to some degree with the comment about asking before posting them online, but that assumes that, once the image is out there, you're still the only way it can get online.

John Allan wrote:
The 1st sentence is correct. The second one isn't.

Cherrystone wrote:
Post a bunch of nude images of your ex-wife, and post them all over the internet without any permission from her.
Particularly if you both still live in California.

Let me know how that works out for you.

Good for you for the intelligent reply.  The answer to the OP's question will vary by state. In some it will be a problem in others no issue at all.

The OP is in California.  Has anybody read caselaw in our state?  There are some places where you will be just fine posting the images, California isn't one of them.  It really depends on a lot of things, but ... I wouldn't do it.

Buggin Out Photography wrote:
In most cases, there would be no recourse. The photographer owns the copyrights to his images nude or not.

Not true.  While the photographer owns the copyright, the model owns the rights to the use of his/her likeness.  Unlike copyright, which is governed federally (in the U.S.) usage is governed by state laws.

OP would be best advised to consult a lawyer rather than look for legal advice here.

All IMHO as always, of course.

Cherrystone wrote:

You're not sounding like a jerk, just really misinformed.

Copyright has no bearing on this specific issue. None.

Well, in fact, yes it does.  It has everything to do with what the OP had asked.  Copyright law dictates how a copyrighted work may or may not be used.  For example, US copyright law dictates that a model may not so much as post an image over the internet without specific permission granted by the copyright owner.  Now, the overwhelming majority of us here on MM including myself, don't mind at all if a model posts an image of ours in their port.  Sorry, but your lack of knowledge in copyright law makes you look a bit ignorant on this issue.  And yes, btw, I have consulted several attorney's specializing in copyright law on well, copyright law.

John Jebbia wrote:
I certainly wouldn't do it.

You're in California. A state where they're pushing to make "Revenge Porn" a criminal act. How easy would it be for the model to claim you did it for revenge, because you certainly didn't have his express written permission to post it.

I agree, John...and, it would also be fairly easy to prove that the photographer was an idiot for not getting a release...and the thread question by the OP also makes me wonder if the photographer even has copies of the model's ID for 2257 requirements.
OP: Just because this is a male model, and not a female model, doesn't change the fact that the shooter would need to have those documents, especially for any type of publication.

Cherrystone wrote:
You're not sounding like a jerk, just really misinformed.

Copyright has no bearing on this specific issue. None.

Isaiah Brink wrote:
Well, in fact, yes it does.  It has everything to do with what the OP had asked.  Copyright law dictates how a copyrighted work may or may not be used.  For example, US copyright law dictates that a model may not so much as post an image over the internet without specific permission granted by the copyright owner.  Now, the overwhelming majority of us here on MM including myself, don't mind at all if a model posts an image of ours in their port.  Sorry, but your lack of knowledge in copyright law makes you look a bit ignorant on this issue.  And yes, btw, I have consulted several attorney's specializing in copyright law on well, copyright law.

I am confused by this.  The OP didn't speak at all to the model posting images.  He asked if the model would have recourse against him if he (the photographer) posted images.  I fail to see what copyright has to do with any of this.

As it relates to the OP, the questions are the right to privacy and the right to publicity held by the model.  In that context, copyright is irrelevant.

Rick OBanion Photo wrote:
Can Americans stop acting like the laws of the US apply everywhere?

Well, when the person asking is an American....American law is sort of the law that applies....

NicoleNudes wrote:

There wouldn't be a need to take them down.

But my feeling from the OP was that he might not have wanted the nude photos posted online.
To my limited understanding of copyright laws and releases, I would image that he does have the right to ask to have the images taken down if they were posted and it was agreed on that the photographer would keep those images private.

It's my feeling that the photographer OP isn't worried about pictures of himself....but rather pictures he took of another model who doesn't want his junk on the Internet.

We can't assume they had any agreement.

If they have no agreement on whether or not the images will be displayed online, the only thing the model in question can do is ask, except in cases where the images are being used maliciously to attack him, then he could potentially sue for libel/slander/defamation of character/whatevertheballs but being able to sue doesn't mean you're actually in the legal right to win anything, if he willingly took the pictures the case would probably go nowhere.

If they agreed that they would only be for promotional use, and the photographer is using them for commercial use, then yes the model would have a case. If the photographer is only using them for self-promo in his own portfolio, tough cookies for the model. There's no reason besides "because he was asked" that he ought to remove the photos. And he's not even morally obligated, model dude should have thought it through more and not wasted a photographers time and efforts.

Bravo Magic Images wrote:
No matter what answers you get this one is the only one you can use. The fact that you did not sign a models release form the photographer always has the rights to the images. The rights of copy that is. He or she does not have the rights to use for commercial use or for publications with out your consent. He or she can use the images to use on thier port. What you can do is let the photographer know your not comfortable them useing your images. Talk to a Moderator and see what they can advice you. Leave a comment on the images the the photographer posted with a kind remark such as " Would you be kind enough to remove my images off your portfolio thank you." If the photographer has any edicate they will remove those images. Good luck.

:tap, tap:
The OP of this thread apparently IS the photographer...your advice is directed as if he is the model.

FitzMulti - Las Vegas wrote:

Bravo Magic Images wrote:
No matter what answers you get this one is the only one you can use. The fact that you did not sign a models release form the photographer always has the rights to the images. The rights of copy that is. He or she does not have the rights to use for commercial use or for publications with out your consent. He or she can use the images to use on thier port. What you can do is let the photographer know your not comfortable them useing your images. Talk to a Moderator and see what they can advice you. Leave a comment on the images the the photographer posted with a kind remark such as " Would you be kind enough to remove my images off your portfolio thank you." If the photographer has any edicate they will remove those images. Good luck.

:tap, tap:
The OP of this thread apparently IS the photographer...your advice is directed as if he is the model. [/quot



just reverse the thought or idea lol

John Hough  wrote:
Hi

If a photographer did full nude shots of a male model, frontal, along with other non full nudes and did not get a model release from the model, would the  model have any recourse it the photographer posted the full nudes here or anywhere else?

First question should be:

What was the purpose of the shoot?

John Hough  wrote:
Hi

If a photographer did full nude shots of a male model, frontal, along with other non full nudes and did not get a model release from the model, would the  model have any recourse it the photographer posted the full nudes here or anywhere else?

The nudity makes no difference.

GPS Studio Services wrote:

Cherrystone wrote:
You're not sounding like a jerk, just really misinformed.

Copyright has no bearing on this specific issue. None.

I am confused by this.  The OP didn't speak at all to the model posting images.  He asked if the model would have recourse against him if he (the photographer) posted images.  I fail to see what copyright has to do with any of this.

As it relates to the OP, the questions are the right to privacy and the right to publicity held by the model.  In that context, copyright is irrelevant.

What myself along with the others who said something along the same lines is that the photographer does not need a model release of any sort here in the US due to federal law covering that already.  It's kind of like, do you need to sign a release stating that you can enter your house?  Of course not, federal and state law already permits you to enter your own house.

Isaiah Brink wrote:
What myself along with the others who said something along the same lines is that the photographer does not need a model release of any sort here in the US due to federal law covering that already.  It's kind of like, do you need to sign a release stating that you can enter your house?  Of course not, federal and state law already permits you to enter your own house.

OK, good. How does copyright pertain to what the OP was addressing?
Better yet, what apparently do you think a model release does?

Isaiah Brink wrote:
What myself along with the others who said something along the same lines is that the photographer does not need a model release of any sort here in the US due to federal law covering that already.  It's kind of like, do you need to sign a release stating that you can enter your house?  Of course not, federal and state law already permits you to enter your own house.

Lazyi Photography wrote:
OK, good. How does copyright pertain to what the OP was addressing?
Better yet, what apparently do you think a model release does?

This is not a slam, but Mr. Brink seems to have a fundamental misunderstanding of what copyright is and is not.  Specifically, he seems to think that it grants him the right to publish the likeness of another, and I understand his confusion.

Copyright is what is known as an "exclusionary right."  Basically, what that means is that it grants you the right, to a certain extent, to control what others do with your images.  It is not an "affirmative right."  What that means is that copyright doesn't guarantee you the right, for example, to publish an image.  It simply gives you the right to tell others they may or may not publish it, display it, create derivative works, etc.  Even that isn't an absolute right since there are exceptions, such as "fair use."

In that copyright is an exclusionary right and not an affirmative right, it is subordinate to the affirmative rights of others, such as the right to privacy or the right to publicity where it exists.  Bear in mind, that as state law, those rights vary state to state. 

The point that Layzi Photography is making is that copyright has no bearing on the OP's question. As an exclusionary right, copyright does not guarantee the OP the right to publish the images.  Since the OP is in California, the subject of an image has both the right ot privacy and the right to publicity.  Whether or not the OP can publish those images without the consent of the subject will depend on the specific facts.  It will hinge those rights and how they apply in his circumstance.

Here is a link to an article that discusses the concept:  http://techtran.uoregon.edu/node/33

There is an interesting quote in the article:

"Exclusionary" means that a patent does not give someone the right to practice the invention they have patented—instead, it gives them the right to exclude others from practicing it.

The article discusses patent, trademark and copyright.  If you read the article, it explains that copyright is exclusionary just like patent.  That particular quote really explains the concept clearly.

You could then, simply rewrite that statement as:

"Exclusionary" means that a copyright does not give someone the right to publish the image they have created—instead, it gives them the right to exclude others from publishing it.

By reading that amended quote it will be easy to understand.

John Hough  wrote:
Hi

If a photographer did full nude shots of a male model, frontal, along with other non full nudes and did not get a model release from the model, would the  model have any recourse it the photographer posted the full nudes here or anywhere else?

recourse in terms of what?
money?
asking they not be shown?

Viator-Defessus Photos wrote:

I shot nudes with a gorgeous model not too terribly long ago that didn't want the shots posted here or anywhere else that her family and friends might see them. We did the shoot because it was fun and the pictures look wonderful, but they're not getting used at the moment out of respect for her. We've shot nudes on more than one occasion with the understanding that the nudes were just us having fun shooting together.

So, I guess to answer your question "why would someone shoot nudes if they didnt expect them to be used[?]" Sometimes it's just fun, but the risk of having the shots "out there" is too great.

You alluded to this to some degree with the comment about asking before posting them online, but that assumes that, once the image is out there, you're still the only way it can get online.

Yeah, I also recently did a nude shoot with a model who didn't want me to actually use the photos for anything.  She just wanted to see how she would feel doing it and how she would look fully nude in photos so that she could see if she wants to pursue posing nude further.  Normally I wouldn't bother taking photos that I couldn't use myself, but she had already done two shoots with me and I have over 300 clothed photos of her that I can freely use, plus she's a sweetheart, so I decided to make an exception.  And it was actually fun.  Sometimes taking photos that you never plan on using can be a good way to experiment.  It eases the tension, I guess you could say.

Isaiah Brink wrote:
Not to sound like a jerk here, but no release is needed for the photographer to post the images, they have federal and international copyright laws on their side. If the model dosnt like it, then they can ask the photographer to take them down, but the photographer is not legally obligated to take them down. It comes down to think before you act.

Sorry but that's not correct.  US Copyright law recognizes the difference between the ownership of a photograph and the usage of the same.  Without a release, the accepted indicia of work for hire, the photographer has very little defense available to him/her when a clam for improper usage.  Photographers here get this wrong all the time and it's dangerous.  New law is also growing that understands the 'right of publicity and privacy' these are the laws that allow a person to protect or control their work.   I say this as a practicing Federal court lawyer - folks need to be careful  particularly where they are doing TF.

GPS Studio Services wrote:

Isaiah Brink wrote:
What myself along with the others who said something along the same lines is that the photographer does not need a model release of any sort here in the US due to federal law covering that already.  It's kind of like, do you need to sign a release stating that you can enter your house?  Of course not, federal and state law already permits you to enter your own house.

Lazyi Photography wrote:
OK, good. How does copyright pertain to what the OP was addressing?
Better yet, what apparently do you think a model release does?

This is not a slam, but Mr. Brink seems to have a fundamental misunderstanding of what copyright is and is not.  Specifically, he seems to think that it grants him the right to publish the likeness of another, and I understand his confusion.

Copyright is what is known as an "exclusionary right."  Basically, what that means is that it grants you the right, to a certain extent, to control what others do with your images.  It is not an "affirmative right."  What that means is that copyright doesn't guarantee you the right, for example, to publish an image.  It simply gives you the right to tell others they may or may not publish it, display it, create derivative works, etc.  Even that isn't an absolute right since there are exceptions, such as "fair use."

In that copyright is an exclusionary right and not an affirmative right, it is subordinate to the affirmative rights of others, such as the right to privacy or the right to publicity where it exists.  Bear in mind, that as state law, those rights vary state to state. 

The point that Layzi Photography is making is that copyright has no bearing on the OP's question. As an exclusionary right, copyright does not guarantee the OP the right to publish the images.  Since the OP is in California, the subject of an image has both the right ot privacy and the right to publicity.  Whether or not the OP can publish those images without the consent of the subject will depend on the specific facts.  It will hinge those rights and how they apply in his circumstance.

Here is a link to an article that discusses the concept:  http://techtran.uoregon.edu/node/33

There is an interesting quote in the article:

"Exclusionary" means that a patent does not give someone the right to practice the invention they have patented—instead, it gives them the right to exclude others from practicing it.

The article discusses patent, trademark and copyright.  If you read the article, it explains that copyright is exclusionary just like patent.  That particular quote really explains the concept clearly.

You could then, simply rewrite that statement as:


By reading that amended quote it will be easy to understand.

Well done - pretty clear explanation.

A Sight Worth Seeing wrote:
There is a reason that the big movie studios, fashion houses, publishers, etc., have IP lawyers on staff or on retainer.  Close calls and weird cases aren't that uncommon in IP law.  For regular humans who just want to take photos, pose for photos, or make money doing either one, the best bet is to get insurance (if you can) and try to maintain good relationships with models (or photographers).  A good lawyer can find something to sue over a lot of the time.  The trick is to keep it from getting that far.  So if a model isn't going to be happy with your publishing their photos and you only stand to make $100 from publishing them, consider the increased risk making the model mad is going to create.  It doesn't mean that you don't sell them, but it does mean that give it some thought.

The bolded part is worth repeating here. This is why you almost always try to obtain some kind of Model Release, even if the images are for personal use and not intended for sale or commercial use. The measure of protection is worthwhile and the fact that it may help deter potential litigation makes it a worthwhile pursuit.

With the net being considered more and more as commercial publishing and with sites having ever changing TOS it's best to try to take steps to protect your interest as best you can.

John Hough  wrote:
Hi

If a photographer did full nude shots of a male model, frontal, along with other non full nudes and did not get a model release from the model, would the  model have any recourse it the photographer posted the full nudes here or anywhere else?

Why not do the right thing and call them up and ask for permission?

If you weren't clear in advance of your intent to publish them, then you are only doing a disservice to your self and to the photo community if you don't.

John Hough  wrote:
Hi

If a photographer did full nude shots of a male model, frontal, along with other non full nudes and did not get a model release from the model, would the  model have any recourse it the photographer posted the full nudes here or anywhere else?

As others have mentioned, it depends.


The photographer typically owns the copyright.  This suggests that there are no copyright issues with the photographer posting the images.  However, the model has certain rights that vary from state to state.  Does the usage violate any of the model's rights?


What is the context of the usage?  If the context violates the model's rights of publicity, then a release would be required.  Rights of publicity vary from state to state, but generally require permission from the model in order to use the model's likeness to promote goods and/or services.   If the image is being used to promote goods/services (perhaps a photography business), then a release is probably needed.

Did the model have an expectation of privacy?  Were these private images commissioned by the model?  Was the full frontal image taken without the model's consent (i.e. it was snapped while model was changing).  If the model had a reasonable expectation that the images would be private, or that the images would not be taken,  then he may have a case.

Does the context of the images portray the model in a false light?  If the image is being used alongside an editorial about gay bars, then the context may imply the model is gay.  If the model is not gay, then he may have a case if the images paint him in a false light.

Is the model identifiable from the image?  If it merely a closeup of an anonymous penis, then the model might have a hard time convincing a court that he has been harmed.

What was the agreement between the model and photographer?  If they agreed that full frontal images would be kept private, then this might be a "breach of contract" issue.


In other words, it's a surprisingly complicated question.  The answer depends on many omitted details.  In a case like this, it is very important that the model talk to an actual attorney, and not rely on the web for advice.  The details of the case will be critical.  Some of the issues vary from state to state, and some are federal issues.  I am not an attorney, so he certainly should not rely on anything I say (other than he should talk to a lawyer).

For Consideration herein acknowledged as received, and by signing this release I hereby give Photographer and Assigns my permission to license the Content and to use the Content in any Media for any purpose (except pornographic or defamatory) which may include, among others, advertising, promotion, marketing and packaging for any product or service. I agree that the Content may be combined with other images, text, graphics, film, audio, audio-visual works; and
may be cropped, altered or modified.

I agree that I have no rights to the Content, and all rights to the Content belong to the Photographer and Assigns. I acknowledge and agree that I have no further right to additional consideration or accounting, and that I will make no further claim for any reason to Photographer or Assigns. I acknowledge and agree that this release is binding upon my heirs and assigns. I agree that this release is irrevocable,
worldwide and perpetual, and will be governed by the laws
(excluding the law of conflicts) of Michigan.

It is agreed that my personal information will not be made publicly available but may only be used directly in relation to the licensing of the Content where necessary (e.g. to defend claims, protect rights or notify trade unions) and may be retained as long as necessary to fulfill this purpose, including by being shared with sub-licensees / assignees of Photographer and transferred to countries with differing
data protection and privacy laws where it may be stored, accessed and used. I represent and warrant that I am at least 18 years of age and have the full legal capacity to execute this release.

Edited: I am not a lawyer

Matthew Gwinn wrote:
This is a prime example of why you should ALWAYS get a model release in which something like this is covered.

Here's mine. Feel free to copy it.

For Consideration herein acknowledged as received, and by signing
this release I hereby give Photographer and Assigns my permission
to license the Content and to use the Content in any Media for any
purpose (except pornographic or defamatory) which may include,
among others, advertising, promotion, marketing and packaging for
any product or service. I agree that the Content may be combined
with other images, text, graphics, film, audio, audio-visual works; and
may be cropped, altered or modified.

I agree that I have no rights to the Content, and all rights to the
Content belong to the Photographer and Assigns. I acknowledge
and agree that I have no further right to additional consideration or
accounting, and that I will make no further claim for any reason to
Photographer or Assigns. I acknowledge and agree that this release
is binding upon my heirs and assigns. I agree that this release is irrevocable,
worldwide and perpetual, and will be governed by the laws
(excluding the law of conflicts) of Michigan.

It is agreed that my personal information will not be made publicly
available but may only be used directly in relation to the licensing of
the Content where necessary (e.g. to defend claims, protect rights
or notify trade unions) and may be retained as long as necessary
to fulfill this purpose, including by being shared with sub-licensees /
assignees of Photographer and transferred to countries with differing
data protection and privacy laws where it may be stored, accessed
and used. I represent and warrant that I am at least 18 years of age
and have the full legal capacity to execute this release.

I strongly suggest you get an attorney to review/rewrite this release.   I don't think it means what you think it means.


Paragraph one seems to be permission from the model to license content in various ways.  This is irrelevant as the photographer is generally the natural copyright owner and does not need the model's permission to license the content.     A model might take this clause as reassurance that the photographer won't publish any nude photos of her.  This clause imposes no such restriction.  More importantly, it does not define pornography.  The clause does not apply to any explicit images which are artistic.


What the photographer needs is a standard "release" whereby the model gives permission to use her "likeness" in certain "commercial" contexts.   Without a release, the photographer is still free to use the image in many ways.  By "commercial" I mean those contexts where state law requires a release.  Generally these are contexts where the model's recognizable image is used to promote goods and/or services.  The exchange of large amounts of money is generally not a factor in determining if a particular usage is "commercial".


Paragraph two seems to be there to memorialize that the model has received full payment for her work and has no claim to them.  It also refers to the document as a "release", even though the document does not contain a traditional model release.


Paragraph 3 is interesting.  It is a contractual arrangement whereby the photographer agrees not to use the model's real name, or publish any other personal information (height, hair color, city she lives in, etc.).  This is quite a burden on the photographer.  Fortunately, the way the clause is written, the photographer can bypass it by giving everyone in the world a sub-license to view the image (Photographer is specifically allowed to give personal information to anyone who has received any sort of license in connection with the images).


Disclaimer:  I am a photographer, not an attorney.  You should not rely on anything I say.  My strong suggestion is that a legal document should be drafted by an attorney, not a photographer.  Frequently, the legal meaning of  a word or phrase differs from the common sense meaning.  A poorly crafted document may not have the intended affect.


Edit:  Paragraph one attempts to place limitations on the images based on the "purpose" of the use, not the content of the individual images.  Publishing an image so someone could jerk-off to it, seems to be precluded.  Publishing a nude explicit image in order to embarrass, or ruin the model's teaching career seems to be allowed (the "purpose" would be "revenge", which is not one of the prohibited purposes).