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first12
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Photographer
GPS Studio Services
Posts: 35,162
San Francisco, California, US


GPS Studio Services wrote:
"highest duty of care."
studio36uk wrote:
I might not agree to the use, universally, of that term as you have put it in quotes, knowing that there are degrees of duty of care. But that tends to go to issues of fact that we do not know in this case or this discussion.

Studio36

We don't have to debate it.  I think we see it just a little bit differently.

Oct 11 13 08:11 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


studio36uk wrote:
Actually, we may be looking [at least from a defence standpoint] at some more exotic, but legally recognised, specie of "agency" relationship between this model [the principal] and the PR firm [as their "agent"], and ultimately involving the company that actually used the images, than merely that kind of agency relationship more common to a "model agent " [or any other kind of agent] as is ordinarily understood and discussed in these fora.

A principal and agent relationship can arise in any number of ways, express or implied, in writing or orally, by the behaviour of the parties, through employment relationships, and even in some cases by either an action or inaction on the part of the principal, where one party [the agent] acts apparently, but without any actual  authority, on behalf of the other [the principal]. Studio36

..." more exotic, but legally recognized"...  excellent descriptive!
I would love to see how this one shakes out in the courts but I'm certain that it will settle for "an undisclosed figure" far below the asking and yet above 'fair-market'.

Oct 11 13 08:17 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


GPS Studio Services wrote:
We don't have to debate it.  I think we see it just a little bit differently.

If I was the company that used the image(s) I'd certainly be looking at sheltering under "agency by estoppel" [detrimental reliance] and putting the onus of liability on the PR outfit. Some interesting twists and turns are possible here.

NewBoldPhoto wrote:
..." more exotic, but legally recognized"...  excellent descriptive!
I would love to see how this one shakes out in the courts but I'm certain that it will settle for "an undisclosed figure" far below the asking and yet above 'fair-market'.

It will also be interesting to see who winds up paying as well. Or if anyone does. So far what we have is the woman was paid, and she signed a release. Beyond that knowledge, as reported, there is a black hole [populated by lawyers].

Studio36

Oct 11 13 08:20 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


GPS Studio Services wrote:

GPS Studio Services wrote:
"highest duty of care."

We don't have to debate it.  I think we see it just a little bit differently.

Isn't the question "Who was the PR firm acting as an agent of/for and who did they present themselves as representing and to whom?"

Oct 11 13 08:25 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


NewBoldPhoto wrote:
Isn't the question "Who was the PR firm acting as an agent of/for and who did they present themselves as representing and to whom?"

... and were they acting a honest broker?

Studio36

Oct 11 13 08:29 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


studio36uk wrote:

GPS Studio Services wrote:
We don't have to debate it.  I think we see it just a little bit differently.

If I was the company that used the image(s) I'd certainly be looking at sheltering under "agency by estoppel" [detrimental reliance] and putting the onus of liability on the PR outfit. Some interesting twists and turns are possible here.

It will also be interesting to see who winds up paying as well.

Studio36

Classically- deep pockets pays... but a PR firm 'might' have an 'interest'... blue chip clients being worth their weight these days...  Definitely interesting

Oct 11 13 08:31 pm  Link  Quote 
Photographer
NewBoldPhoto
Posts: 4,897
PORT MURRAY, New Jersey, US


studio36uk wrote:
... and were they acting as honest brokers?

Studio36

So we are all on the same page, I see.
ETA: Alan just doesn't realize it.

Oct 11 13 08:34 pm  Link  Quote 
Model
K I C K H A M
Posts: 14,630
Los Angeles, California, US


studio36uk wrote:

It's not actually bizarre at all.

You may not realise it, or even if you do, then, want to admit it [to yourself?], but it is entirely likely that if you are "signed" to an agency under more or less standard industry arrangements and agreements, the agent / agency will have your power of attorney and can release your images on their own even without your explicit advance knowledge. You, personally, do not have to sign anything - you will have given the agency the authority to do it for you. They have other obligations in law to deal fairly with you and on your behalf as a go-between, but they DO have the power to negotiate everything as to payment -AND- to release the usage of images.

As to the issue some here seem to have with the fact that the release was signed days later. Well, a release can be signed YEARS later if necessary. That time interval is of absolutely no importance at all.

Studio36

That is irrelevant to this situation, because this isn't what happened.

What happened is she signed a paper she admits she didn't read. Whatever situations you want to bring up here that didn't happen are pretty separate from the point.

Oct 11 13 11:28 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


K I C K H A M wrote:
That is irrelevant to this situation, because this isn't what happened.

What happened is she signed a paper she admits she didn't read. Whatever situations you want to bring up here that didn't happen are pretty separate from the point.

I was actually responding to this statement:

K I C K H A M wrote:
Yeah, if I do a paid test, my agency won't have me sign such a usage agreement.

If you are contracted with an agency [e.g. a "model" agency], or have in some other way come to appoint some or any other kind of agent, and they have your standing "authority," they can do it their own selves. That would have the same legal force as if you did so with your own hand. You sign [or even agree orally for them to act as your agent] once and, thereafter, they don't have to have you do anything by your own hand. They don't even have to ask you. They just get to do it in your name.

Whatever happened here, in the case we are discussing, seems very much relevant to, and tied up with, the law of agency. Someone, after all, arranged for her to do the test in the first place; she was paid then and there; afterwards she was asked to sign a release which she did; and ultimately the intermediary [whoever it was] supplied [presumably] the images, a license and her release as a package to, and did a deal with, the company that ultimately used the images. That company may, indeed, be an innocent party in all this, relying as they might have with any agent / agency on representations made by that intermediary.

Studio36

Oct 12 13 03:39 am  Link  Quote 
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Photographer
Rays Fine Art
Posts: 6,029
New York, New York, US


Just an aside, and not to take the discussion off-track, but the degree of erudition in this thread is amazing.  I know a couple of real estate brokers who would benefit from following it.
Oct 12 13 06:26 am  Link  Quote 
Photographer
RKD Photographic
Posts: 3,265
Iserlohn, North Rhine-Westphalia, Germany


Well with all the new Forum Guides in here arguing the case, it's to be expected...
Oct 12 13 07:27 am  Link  Quote 
Model
Caitin Bre
Posts: 1,944
Naperville, Illinois, US


Another example of why NOT to sign a blanket release.
And just because someone says that a release is just how things are done, but I wont use these images for anything, just sign. Means they can Use them anyway they want you just signed. Doesn't matter what they said. people are always trying to get something for nothing.
Oct 12 13 07:51 am  Link  Quote 
Artist/Painter
Swedish Fish
Posts: 7
Venice, California, US


So what if the model did a entirely speculative stock photo shoot that paid $400, $300, $100, $50, w/e and she signed a general release knowing photos would be available as stock - for people to purchase and use for w/e they needed.  Then, at some point down the road one of the images she was featured in was purchased for use in a major add campaign.  Does the model get to come back and sue because instead of only the model getting the most from the shoot that had a great possibility of not making much money if any, one of the photos which featured the model was used for something big? ( and this theory does not include using the photo in any libelous, etc. ways )
Oct 12 13 09:25 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


Swedish Fish wrote:
So what if the model did a entirely speculative stock photo shoot that paid $400, $300, $100, $50, w/e and she signed a general release knowing photos would be available as stock - for people to purchase and use for w/e they needed.  Then, at some point down the road one of the images she was featured in was purchased for use in a major add campaign.  Does the model get to come back and sue because instead of only the model getting the most from the shoot that had a great possibility of not making much money if any, one of the photos which featured the model was used for something big? ( and this theory does not include using the photo in any libelous, etc. ways )

No, provided all the paperwork was in order and usage conformed to that, they do NOT!

And speaking of "agency", the stock image service is likely acting in the capacity of [marketing] "agent" for the photographer. Whether that is expressly understood or not, that is what they are. What they do: in arranging the licensing with the end user; setting the price; collecting the money; and sending the part of the license fee due to the photographer to them, whilst keeping a commission for themselves; is exactly an expression of what an "agent" does.

Studio36

Oct 12 13 11:12 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


Caitin Bre wrote:
Another example of why NOT to sign a blanket release.

And just because someone says that a release is just how things are done, but I wont use these images for anything, just sign. Means they can Use them anyway they want you just signed. Doesn't matter what they said. people are always trying to get something for nothing.

Let's be clear here about releases - - -

A model release is not generally required at all except for the commercial use of a photographic representation of the person depicted in the image, ergo, if you are asked to sign one at all, not including some of these so-called, and often self-created, TF* releases sloshing around here and the Internet generally that, in law, are likely not required in the first place, ANY release implicates a potential - and only a potential - commercial use for an image.

Now to be honest, as well as practical, even with TF* shoots if the photographer intends to use the images in connection with their own photographic activities IN SOME JURISDICTIONS that use may legally speaking be "commercial" use in respect of them. They absolutely positively should be getting a full commercial release. So if you [model] shoot even TF* in those jurisdictions it is quite likely you will be asked to sign a commercial form of model release. Not doing so could bar the photographer, themselves, from using their own work [in some places even after you're dead] - - - and in that case what's the point of shooting with you at all?

There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36

Oct 12 13 11:24 am  Link  Quote 
Model
Jules NYC
Posts: 16,051
New York, New York, US


If she refused the release, she wouldn't have that kind of exposure.
Next...

Clare Torry got about $77 bucks as a studio musician for the two takes it took to record The Great Gig In The Sky for Dark Side of The Moon.

Years later after touring live with PF, she sued the band.  Pink Floyd didn't put up a fight and she got a huge lump sum.

Oddly Clare at the time wasn't a PF fan, nor really cared about doing the track; she just was a fabulous studio singer.

She got a lot of flack from fans for suing, but check it...
Under a hundred bucks for millions upon millions of dollars made for HER original vocal creation?

The members of Pink Floyd could have gave her a piece of the pie on their own but didn't until she had a lawsuit.

Why can't big companies/designers/etc. pay their talent appropriately instead of being f'ing cheap bastards and giving a model shit pay for huge exposure?

I mean, still good press for the model of course! but WTF.
Oct 12 13 12:16 pm  Link  Quote 
Photographer
Greg Kolack
Posts: 17,730
Downers Grove, Illinois, US


studio36uk wrote:
Let's be clear here about releases - - -

A model release is not generally required at all except for the commercial use of a photographic representation of the person depicted in the image, ergo, if you are asked to sign one at all, not including some of these so-called, and often self-created, TF* releases sloshing around here and the Internet generally that, in law, are likely not required in the first place, ANY release implicates a potential - and only a potential - commercial use for an image.

Now to be honest, as well as practical, even with TF* shoots if the photographer intends to use the images in connection with their own photographic activities IN SOME JURISDICTIONS that use may legally speaking be "commercial" use in respect of them. They absolutely positively should be getting a full commercial release. So if you [model] shoot even TF* in those jurisdictions it is quite likely you will be asked to sign a commercial form of model release. Not doing so could bar the photographer, themselves, from using their own work [in some places even after you're dead] - - - and in that case what's the point of shooting with you at all?

There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36

I would just like to say this is a perfect example of how the Forum guides can helpful.

A lot of good info here.

Thanks...

Oct 13 13 01:26 am  Link  Quote 
Photographer
Abbitt Photography
Posts: 11,413
Oakland Acres, Iowa, US


studio36uk wrote:
There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36

It seems to me this statement focuses on rights of publicity and does not address right or privacy.  A release also covers a photographer from being sued over a breach of right of privacy which could have nothing to do with commercial use.

Oct 13 13 07:43 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 35,162
San Francisco, California, US


studio36uk wrote:
There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36
Abbitt Photography wrote:
It seems to me this statement focuses on rights of publicity and does not address right or privacy.  A release also covers a photographer from being sued over a breach of right of privacy which could have nothing to do with commercial use.

That will vary by state.  You are correct though, there are some situations where a release might be necessary even though the use is non-commercial. 

His point is important though.  Not all uses require a release.  So, in a situation where no release is required, not having a release will make no difference at all.

Referring back to the original post, however, the use alleged was clearly commercial, so her claim is going to come down to the language of the releases and the circumstances of signature.  There may be a test of the sufficiency of consideration or misrepresentation, as well.

Oct 13 13 07:51 am  Link  Quote 
Photographer
Abbitt Photography
Posts: 11,413
Oakland Acres, Iowa, US


GPS Studio Services wrote:

studio36uk wrote:
There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36

That will vary by state.  You are correct though, there are some situations where a release might be necessary even though the use is non-commercial. 

His point is important though.  Not all uses require a release.  So, in a situation where no release is required, not having a release will make no difference at all.

Referring back to the original post, however, the use alleged was clearly commercial, so her claim is going to come down to the language of the releases and the circumstances of signature.  There may be a test of the sufficiency of consideration or misrepresentation, as well.

Ah yes, - He was addressing a previous post and it's assumption that without a release her images can't be used for anything.  I certainly agree that's an incorrect assumption.

Oct 13 13 08:10 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,663
Tavai, Sigave, Wallis and Futuna


GPS Studio Services wrote:

Abbitt Photography wrote:
It seems to me this statement focuses on rights of publicity and does not address right or privacy.  A release also covers a photographer from being sued over a breach of right of privacy which could have nothing to do with commercial use.

That will vary by state.  You are correct though, there are some situations where a release might be necessary even though the use is non-commercial. 

His point is important though.  Not all uses require a release.  So, in a situation where no release is required, not having a release will make no difference at all.

The rights of privacy, publicity and property [particularly as in VA] are intertwined though there are technical distinctions between them. The necessity for a release, or not, is always driven by state law. Ditto as to the construction of the release.

Texas, for example, is an unusual state, though not alone in principle but it seems unique in practice, in that there is common law but not a statute governing the use of someone's image until they die; after that there is a statutory privacy law that kicks in. Most other states that I have looked at have adopted statues into law to cover both the living and the deceased.

There is at least one other state, I don't recall which right off hand, that provides a special privacy statute applicable to members of the armed forces, but not the population of that state in general.

This is why the council often offered here NOT to rely entirely on generic releases, especially those found on the Internet with no clear source or provenance, or releases that have not been legally vetted in respect to someone's home state, is important to take note of.

Studio36

EDIT: I have always found it interesting that in the case of the releasing used by Suicide Girls, as much as many of us do not like their business practices, that document actually includes releasing language in respect of the model's publicity; image; privacy; and personality [as a property right similar to the way it applies in VA]; comprehensively.

Oct 13 13 10:15 am  Link  Quote 
Photographer
Dan Howell
Posts: 2,193
New York, New York, US


studio36uk wrote:

Let's be clear here about releases - - -

A model release is not generally required at all except for the commercial use of a photographic representation of the person depicted in the image, ergo, if you are asked to sign one at all, not including some of these so-called, and often self-created, TF* releases sloshing around here and the Internet generally that, in law, are likely not required in the first place, ANY release implicates a potential - and only a potential - commercial use for an image.

Now to be honest, as well as practical, even with TF* shoots if the photographer intends to use the images in connection with their own photographic activities IN SOME JURISDICTIONS that use may legally speaking be "commercial" use in respect of them. They absolutely positively should be getting a full commercial release. So if you [model] shoot even TF* in those jurisdictions it is quite likely you will be asked to sign a commercial form of model release. Not doing so could bar the photographer, themselves, from using their own work [in some places even after you're dead] - - - and in that case what's the point of shooting with you at all?

There is no other reason to be asked to sign a model release save for commercial use or the potential that some anticipated future use will be treated in law as a commercial use [e.g. the photographer's self promotion]. None at all.

Studio36

While you have a firm handle on the strictly legal parameters, you might not be familiar with some real-world applications I'm afraid. There are reasons that a model will be asked to sign a release, specifically magazine editorials.

There might or might not be a strict legal requirement for this, many magazines require it of the photographers prior to publication. To me that is more than enough reason to gather and provide documentation for a shoot. It might only be booking keeping or information gathering for the magazine, if it stands in between me and a paycheck, I'm going to fulfill the requirements of the assignment.

As to the specifics of the case in this thread, I find the agencies behavior to be well outside the common practice I have witnessed and worked with in regards to NYC modeling agencies. It has been my impression that, although they are not always fair to models, they are ALWAYS greedy and I have yet to meet one who would approve a billboard usage for $400. Most, in my experience, prefer to only quote a single fee for a shoot when the usage is confined to editorial. Almost across the board they will quote a shoot fee + usage fees specific to the intended project.

Oct 15 13 04:52 am  Link  Quote 
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