JayDreamer wrote:
I think you should register those images in a batch (you can register a batch of images at once - http://asmp.org/tutorials/best-practice … 0WikvldXuw) now and politely ask her for compensation. Chances are if the model finds it successful and may not be willing to compensate (money matters!). Then you have the full registered copyright to go legal.

Thanks
Jay

It is way too late to register the images to gain the benefits of the statute.  Unless he has published the images himself, within the last 90-days, the time for registration has already passed.  If infringement occurs before registration, you do not receive the protection of statutory damages, attorneys' fees, etc. Most people don't understand that.  An unpublished image doesn't gain the benefits until registration occurs and prior infringement isn't covered by the registration.  Future infringements are not covered either.

It is necessary to register the images in order to initiate litigation, but ... unless he intends to sue, there is no point in paying for registration now.

RennsportPhotography wrote:
I think to some people the use or Tee shirts is a form of  self promotion and as such does it matter if it is a give away or sold? I think I would ask for a shirt and call it even. Or you can call a  lawyer and spend a lot and maybe get a little.

barepixels wrote:
1) whats the chance she will get rich by selling the shirt from her site

2) she traded with you.  she didn't charge you

3) help the girl out to make some money

4) let her know what she did is not cool with you.  she may be ignorance of what you think how things works.  offer as a trade for permission to shoot with you again

5) send her here so she can see how other feels

I like the way that both of you are thinking ... now I am going to step away from this thread and let you all duke it out.

Blue Box Photography wrote:
I worked with a well-known model on a TF basis earlier this year. She signed a release that basically stipulated that while I maintain the copyright to the images, she had the right to use the photos for self-promotion. Now I see that she is selling T-shirts on her website with my images of her on them.

I've never encountered this before. If I didn't specifically grant her the right to sell products that included my images, what she's doing is illegal, right? I'm not against her selling the merchandise in principle, but I would need to be compensated. What's typical in this situation and how does one proceed?

Did you sign the release as well? Does she have a copy with your signature where you agree to this? If you did not sign it it does not matter, does it?

Blue Box Photography wrote:
Thanks GPS Studio Services for your insightful comments. I had been worried about my old hand-crafted model release left-over from when I first started photographing models because of the vagaries it presents in terms of the usage of the images. (My photographer friends have advocated a separate usage agreement which I have yet to implement.) Maybe this is a wake-up call.

A model release is signed by the model acknowledging (s)he has been photographed and that (s)he permits you, the photographer, non-commercial/commercial/otherwise specified use of his/her likeness.
A usage license is signed by you, the copyright holder, and given to the model, permitting him/her specified usage of the images.
You can not put the two together.
Time to speak with your attorney to put together proper paperwork.

Blue Box Photography wrote:
Does selling an image on merchandise fall under "self-promotion?" That's what I need to figure out, I guess. And is she going to get rich off of this shot? Probably not. But she does have nearly 150K subscribers to her youtube channel and tens of thousands of fans on facebook and instagram. She's going to sell some stuff and it would really burn me if I didn't get compensated in some way because my model release was crap.

So she’s selling t-shirts…
Is she selling t-shirts as a business… or is she promoting her modeling by selling t-shirts?
What’s her net/net profit on each t-shirt? Maybe $2.00?
How many has she sold (confirmed)? Maybe 50?
How much of a split do you feel you should receive? 50/50?
How much is it going to cost you to have your attorney write her a registered/certified letter? $100?... $150?

Is the $50+/- you would receive from the model worth the $100 it will cost you to demand such worth the aggravation?

Azimuth Arts wrote:
OP - it sounds like your usage licence is vague at best.  I would not personally pursue legal action against the model.  There are a few things you could/should do:

#1 - separate your model release and usage agreement.  The model release should be only about the rights the model gives to you.  No mention of what she gets.

#2 - send the usage agreement with the photos (you can show her a sample before the shoot to let her know the general terms) and clearly indicate the names of the files that are covered by the usage agreement.

The above are in the Should Do category.

These are what you could also do:

#3 - as someone as suggested let the model know it was not your intention to allow for the sale of merchandise as part of the agreement - especially if your release does not allow you to sell it.  Tell the model she can continue to use these pictures but you would like to come to a friendly agreement on some form of compensation.  Perhaps ask for another shoot where you can sell the images from that shoot.  Or see if she will cut you in on part of the future profits - don't ask for money on what has already been sold as that money may be spent and she might not be able to get it easily.  If you want to do something then this is my preferred option.

#4 - if your model release does allow you to sell images you could consider making up your own t-shirt or other merchandise and trying to sell it to her fans (post it on Facebook and Tag her in the listing - most of her fans will see that.)  If you sell it for less maybe you can make some sales.  But this would be a dick move in my opinion - however an option if she is a dick to you.

That's my $0.02

Good stuff - thanks.

For the record, I wasn't considering legal action in this matter. I just feel that I've always been extremely accommodating and fair to the models I shoot, and I just ask for the same in return. And if you're going to sell the images I've shot of you in some manner - even if no written agreement were to be in place - the least you can do is offer me some form of compensation.

Blue Box Photography wrote:
Good stuff - thanks.

For the record, I wasn't considering legal action in this matter. I just feel that I've always been extremely accommodating and fair to the models I shoot, and I just ask for the same in return. And if you're going to sell the images I've shot of you in some manner - even if no written agreement were to be in place - the least you can do is offer me some form of compensation.

If the relationship is amicable,  why dont you guys shoot again for a joint venture?   Your pictures must be quite pretty if the model and her fans like them enough for t-shirts/posters. 

The same thing happened to me...at first i was a little rattled but then i was actually flattered.   The model and her fans liked my work over the work she'd done with other photographers. 

When we got in touch, she offered to stop selling them and only use one other tog's shots (who was happy to give her whatever she needed).  I decided it was flattering to have my photo on tshirts and posters and gave her my full backup to go for it.  (without sending the full high-res originals...i sent a "higher" res but not the full size retouches).

Its a tiny amount of money and it is for self-promotion in a sense....the demographic are her fans.....not random guys shopping at Old Navy or Nordstorms....now THERE'S some money!  And that would be much different. 

Just my POV...

Legally:  Have her rent a usage agreement.  At that point, she'll probably drop your images and use another guys'.

Good luck...and congrats on making lovely images!

Laurie

GPS Studio Services wrote:
An unpublished image doesn't gain the benefits until registration occurs and prior infringement isn't covered by the registration.  Future infringements are not covered either.

So are you saying that if one were to infringe on say a live television broadcast while it was being broadcast,(they haven't had a chance to register it, I'll grant maybe trademark applies depending upon the case)  you would not be held liable for statutory damages?

GPS Studio Services wrote:
It is necessary to register the images in order to initiate litigation, but ... unless he intends to sue, there is no point in paying for registration now.

Unless he wants to protect against future infringers

GPS Studio Services wrote:
You are certainly the copyright holder for the images, but what you have stated here is unclear.  You have said that you have given her the right to use the images for "self-promotion."  Without reading the written "grant of license" it is impossible for us to know the legal meaning of that term as it applies to this situation.  We don't know if it is clearly stated and the bounds delimited or if it is ambiguous.  The term "self-promotion" is very broad and could be viewed in many ways by a court.

I can see a situation where putting an image on a t-shirt could clearly be self-promotion.  That differs from her try to re-licensing to others.  The purpose of selling the t-shirts is a form of self-promotion.   That is precisely why license agreements need to be clear, and are best drawn up by attorneys.

Something also to consider is, when in court, if something is ambiguous, it is generally interpreted against the interests of the person who drafted the agreement.  Put another way, if a court could read your license and decide that selling a t-shirt is a reasonable interpretation of "self-promotion," they may well rule for the model.  The logic is that, being her understanding, that was what she was agreeing to.  If the agreement was unclear, that was your fault as the drafter.

I would be very careful about saying what she is doing is "illegal."  If you are seriously concerned, have an attorney review your license agreement to give you an opinion as to what it means.  You may be right or you may be wrong.  What is clear is, without reading your actual license, it is impossible to know which is true.

As a practical matter, I agree with you.  I am sure you never intended for her to sell t-shirts with the image on it.  As a legal matter, this is far from black and white.

+1
Plus remember when it comes to contracts if the terms are CLEAR the favor falls to the one who did not draft it (her).

GPS Studio Services wrote:
An unpublished image doesn't gain the benefits until registration occurs and prior infringement isn't covered by the registration.  Future infringements are not covered either.

Brian Scanlon wrote:
So are you saying that if one were to infringe on say a live television broadcast while it was being broadcast,(they haven't had a chance to register it, I'll grant maybe trademark applies depending upon the case)  you would not be held liable for statutory damages?

No, I am not saying that at all.  The law provides for that.  Broadcasting a show is publication under the statute.   In the case of a "published work," you have 90-days from the date of publication to register and get the full benefits of the statute.  For an "unpublished work" protection doesn't start until registration occurs. 

If you give an image to a model before registration and before publication, if she were to infringe, you would not be eligible for statutory damages or attorneys' fees.   There has been great debate about the fairness of that, but that is indeed how the law is written.

GPS Studio Services wrote:
It is necessary to register the images in order to initiate litigation, but ... unless he intends to sue, there is no point in paying for registration now.

Brian Scanlon wrote:
Unless he wants to protect against future infringers

Actually, it doesn't matter.  Once you have had your first infringement, if the image is unregistered, registration won't provide you statutory damages for future infringements.  You only get one bite at the apple.  You still have the protection of copyright, but you are limited to actual damages (or in some cases can attack profits).  You can no longer collect statutory damages nor attorney's fees.

The only way to fully protect your works is to register them before you give them to models or within 90-days of the first publication authorized by you.

GPS Studio Services wrote:
It is way too late to register the images to gain the benefits of the statute.  Unless he has published the images himself, within the last 90-days, the time for registration has already passed.  If infringement occurs before registration, you do not receive the protection of statutory damages, attorneys' fees, etc. Most people don't understand that.  An unpublished image doesn't gain the benefits until registration occurs and prior infringement isn't covered by the registration.  Future infringements are not covered either.

It is necessary to register the images in order to initiate litigation, but ... unless he intends to sue, there is no point in paying for registration now.

I just want to clarify what you wrote because when I read the line "Unless he has published the images himself, within the last 90-days, the time for registration has already passed."  I think you meant to say:

You can still register the photos at any time, however, if the photos were infringed before the effective date of registration, copyright remedies may also be
available if the effective date of registration is no later than 90 days after the first publication of the work.

Michael Lohr  wrote:
Just wondering if there is really enough money to worry about. I know both the model and the photographer are probably wonderful. But not sure how many T shirts a model could sell of herself to make the time spent on this worthwhile.

Considers it free promotion for your work and move on.

^^^^^

Been there done that, she's not making enough money to make it worthwhile. At best, she's covering her costs. She may have a lot of followers but only a small percentage will actually pay. How many guys have you seen wearing a t-shirt with a girl on it especially unknown?

Yes, in a perfect world, she should have contacted you first but one thing I can guarantee. If you put her photo or likeness on a T-shirt, she would be in contact with you before you sold your first T-shirt.

GPS Studio Services wrote:
It is way too late to register the images to gain the benefits of the statute.  Unless he has published the images himself, within the last 90-days, the time for registration has already passed.  If infringement occurs before registration, you do not receive the protection of statutory damages, attorneys' fees, etc. Most people don't understand that.  An unpublished image doesn't gain the benefits until registration occurs and prior infringement isn't covered by the registration.  Future infringements are not covered either.

It is necessary to register the images in order to initiate litigation, but ... unless he intends to sue, there is no point in paying for registration now.

Newcomb Photography wrote:
I just want to clarify what you wrote because when I read the line "Unless he has published the images himself, within the last 90-days, the time for registration has already passed."  I think you meant to say:

You can still register the photos at any time, however, if the photos were infringed before the effective date of registration, copyright remedies may also be
available if the effective date of registration is no later than 90 days after the first publication of the work.

If and only if the image was published, as defined by the statute, before the first date of infringement.  That is the caveat and the point of my post.

If you take a photo on Monday.  You then give a copy to the model on Tuesday.  She in turn infringes on Wednesday and you register the image on Thursday, it is too late.  You have lost your right to collect statutory damages and attorneys' fees.

On the other hand, if you take then image on Monday.  You then publish the image on Tuesday.  On Wednesday you give the image to the model.  On Thursday she infringes upon the copyright.  On Friday you register the image.  In that situation you would still be eligible for statutory damages.

So, I agree with what you are saying but the sequence of events is critical.  If the infringement occurs before registration and before publication, it is already too late.  If infringement occurs within 90-days of publication, then it is still on time.

You can, indeed register an image at any time and MUST register it in order to file an action.  A pre-requisite to filing an action for infringement is to first register the image.  That is another quagmire in the law.  That is why you must be able to register at any time.

Likewise, a registration which occurs within five years of the first publication is presumed to be valid.  It is much more difficult to challenge.

GeorgeMann wrote:
It was a TF shoot. Certainly the photographer should Not be the only one to profit from TF. It clearly sounds like self promotion to me if there is no other product on the shirt.

Not if she selling at a profit. That is not self promotion

Looknsee Photography wrote:
I am struck by the vast amount of legal positioning suggested here. 

If it were me, I'd do the following:

...  Have a conversation with the model.  If you want her to stop, your first step is to ask her in a respectful manner.

...  Add an item to your photography session checklist, reminding yourself to clarify your expectations with your model before you agree to work together.  Also, learn to document your communications appropriately.  Finally, all of us can stand to improve the clarity of our negotiations.

...  You might want to review & improve the wording on your model release.

...  Remember:
   It is exceedingly easy to escalate hostilities, and
   It is exceedingly difficult to de-escalate hostilities.
Before starting legal proceedings, you owe it to yourself to attempt a more amiable solution to your problems.

...  Also, it is good to assume every model you meet will eventually talk with every other model in the world.  Sue one model, and every model in your area will eventually hear about it (and probably from your model's perspective, not yours).

So, before you do all your legal posturing, just talk to the model.  This might be much ado about nothing.

I agree with you and said that a long time ago.  I pointed out the law early when the OP suggested that what she did was illegal.  I also quickly agreed with those who cautioned moderation.

I don't see the point of legal posturing here.  It isn't like there are tens of thousands of dollars at stake.

Blue Box Photography wrote:

Good stuff - thanks.

For the record, I wasn't considering legal action in this matter. I just feel that I've always been extremely accommodating and fair to the models I shoot, and I just ask for the same in return. And if you're going to sell the images I've shot of you in some manner - even if no written agreement were to be in place - the least you can do is offer me some form of compensation.

What would you do if a designer used some of your work to advertise her things?   A model does a TF session with cool swimwear or dresses.   You give them good work (which you do) Only later find out your work is being used and you weren't paid or know about it.   You don't have to be a dick about it but you absolutely should let her know that wasn't cool.   It doesn't matter if she makes $100.00 or a million bucks.   Selling the work from TF without your permission isn't right.   If that was the plan then pay a photographer to shoot.   Odds are she won't make much but that isn't the point.   Your copyright is important.   Turn things around.   How do you think she might feel if you were profiting from the images you did of her.   There are models on this site who use TF nudes as content on their sites.   Nothing wrong with but let those you trade with know your plans.

Blue Box Photography wrote:
I worked with a well-known model on a TF basis earlier this year. She signed a release that basically stipulated that while I maintain the copyright to the images, she had the right to use the photos for self-promotion. Now I see that she is selling T-shirts on her website with my images of her on them.

I've never encountered this before. If I didn't specifically grant her the right to sell products that included my images, what she's doing is illegal, right? I'm not against her selling the merchandise in principle, but I would need to be compensated. What's typical in this situation and how does one proceed?

$300 an hour lawyer vs $15 t-shirt with some models face on it. You pick.

OR...

YOU sell the same style t shirt for under her price (or even a boy one get one free!) and out sell her.

Again...your choice.

Risen Phoenix Photo wrote:
Not if she selling at a profit. That is not self promotion

If her photo is the only product on the shirt, what would you call it??
When any company runs an ad anyplace, advertising their product, it is self promotion and they are certainly doing it to make a profit.
The only thing I see here, from photographers, is it would be okay for the photographer, who TRADED the images for the models time, to sell the shirts without sharing with her.
kind of one sided, don't you think?