ron w photography wrote:
Many of you already have extremely good knowledge of the legalities of model releases, image use agreements etc. BUT MANY DON"T HAVE A CLUE WHILE THINKING THEY DO! Here's a real case involving a major company. A good example of what you could either be up against, or what you might be suing for. It will only take 2-3 minutes to read. Enjoy and learn.
http://www.loweringthebar.net/2009/06/u … court.html

What exactly is your position here? Or what are you trying to teach? The case is still being heard in court and there is no final outcome yet.

PYPI FASHION wrote:
What exactly is your position here? Or what are you trying to teach? The case is still being heard in court and there is no final outcome yet.

You're nit picking. Although no final outcome yet, as I said, it is what you could be facing. 1st of all a lawsuit and the legal costs associated with it.  Maybe a $15 million jury verdict? I'm sorry it was overturned. Whew!

pando wrote:
the guy got 15 mil there was an outcome
thats why i put my stuff on deviant art so i can put a liscense on it so if the image is ever used its an instant violation

He didn't get a dime. The judgment was appealed. That's why it's in the California Supreme court right now.

Now sure what Deviant Art has to do with your right to publicity.

pando wrote:
the guy got 15 mil there was an outcome
...

the appellate court reversed that outcome though.

http://www.loweringthebar.net/2007/07/c … rses-.html

studiomona wrote:
it would all depend on the language of the document(s) he signed 16 years ago. since we are not privy to that info, well I guess I'll just wait and see how the court rules.
:-)

I don't believe the validity of the release is being argued. Nestle is arguing that it is a single violation so the damage should be $750.

PYPI FASHION wrote:

I don't believe the validity of the release is being argued. Nestle is arguing that it is a single violation so the damage should be $750.

ok.

PYPI FASHION wrote:
I don't believe the validity of the release is being argued. Nestle is arguing that it is a single violation so the damage should be $750.

It's an interesting argument and one that I hope is rejected.

If I speed down a highway and get caught on a camera (not pulled over) and then 10 miles down the road I get caught on another camera, can I argue to the judge that it was a single violation and not two?

Rob Domaschuk wrote:

It's an interesting argument and one that I hope is rejected.

If I speed down a highway and get caught on a camera (not pulled over) and then 10 miles down the road I get caught on another camera, can I argue to the judge that it was a single violation and not two?

I don't think it will fly but he might get nailed on the 2 year deadline issue.

PYPI FASHION wrote:
I don't believe the validity of the release is being argued. Nestle is arguing that it is a single violation so the damage should be $750.

I knew we were on the same page! Because of the validity of the release Nestle has now spent whatever in legal costs for violating that release not too mention dodging a $15 million verdict. And the case still hasn't been decided which when it is, it could cost them even more. Simply by luck they may avoid the statute of limitations

ron w photography wrote:

I knew we were on the same page! Because of the validity of the release Nestle has now spent whatever in legal costs for violating that release not too mention dodging a $15 million verdict. And the case still hasn't been decided which when it is, it could cost them even more. Simply by luck they may avoid the statute of limitations

Well he can take this case to every State and country if he wanted to. Right to publicity laws vary by State.

PYPI FASHION wrote:
I don't think it will fly but he might get nailed on the 2 year deadline issue.

I freely admit to having no knowledge of how the courts will rule on this...

But, I cant help but wonder if his attorney will be able to do something in his favor by highlighting the span of years between the initial model release and the subsequent use of the image by Nestle... surely 15 years later the courts cannot expect the same level of vigilance by a model as the 2 year deadline seems to suggest...

but the courts sometimes seem to defy common sense....

rfordphotos wrote:

I freely admit to having no knowledge of how the courts will rule on this...

But, I cant help but wonder if his attorney will be able to do something in his favor by highlighting the span of years between the initial model release and the subsequent use of the image by Nestle... surely 15 years later the courts cannot expect the same level of vigilance by a model as the 2 year deadline seems to suggest...

but the courts sometimes seem to defy common sense....

Well I hope he gets something. Nestle offered him 100,000. He offered 8 million. Both declined and he was awarded 15 mil which was overturned and here we are.

PYPI FASHION wrote:

Well he can take this case to every State and country if he wanted to. Right to publicity laws vary by State.

And my whole point to this post was about model releases and usage agreements and how some here need to have a basic understanding of what they are and what the potential repercussions are for either not understanding or flat out not caring.

PYPI FASHION wrote:
I think the lesson for models here is to not sign an unlimited commercial release because the photographer told you it is a standard release. This case would have never seen the light of day if he had signed a commercial release. There is no reason a model needs to sign a commercial release for TF shoot.

Although not knowing, I would assume he belonged to an agency and was booked through them

ron w photography wrote:
Many of you already have extremely good knowledge of the legalities of model releases, image use agreements etc. BUT MANY DON"T HAVE A CLUE WHILE THINKING THEY DO! Here's a real case involving a major company. A good example of what you could either be up against, or what you might be suing for. It will only take 2-3 minutes to read. Enjoy and learn.
http://www.loweringthebar.net/2009/06/u … court.html

Wow, so should I have gotten a model release from the model I use on my boudoir business cards?  LOL  j/k

studio36uk wrote:
Here is some background to this that the current stories aren't mentioning:

Scott & Scott, LLP [business and technology law]

http://blawg.scottandscottllp.com/busin … 0_awa.html

...Sometime in 1986, Nestlé Canada arranged a photo shoot where Russell Christoff, a professional model, gazed into a cup of coffee and appeared to enjoy the aroma. Christoff was paid for his photo appearance and given a contract regarding the use of his image. This contract provided that if Nestlé Canada used the picture on a coffee brick label it was designing, he would be paid $2,000 plus an agency commission. The contract also stated that further negotiations would be needed for any other use. Without paying Christoff according to the terms of the contract, or even notifying him, Nestlé Canada used his image on the coffee brick.

Eleven years later, Nestlé redesigned their label for Taster’s Choice instant coffee and decided to use Christoff's image to replace the original Nestlé “taster” that graced the old label. A designer for Nestlé did not inquire into the terms of the contract with Christoff, nor did she attempt to contact him because she was under the mistaken belief that Nestlé owned the rights to his image....

---

Comment

The lesson here might not be the one Pat mentions about TFP and signing full commercial releases because Christoff was a professional model and working in a paid professional capacity for which he received his initial payment.... the lesson might better be just pay the model IN FULL and get the unrestricted commercial release. It is not even the release that appears in question it is that underlying contract agreeing a contingency payment on the initial use, and setting up the obligation to negotiate for further uses. That contract was not honoured.

IF Nestlé had paid attention in the first place they could have been away with the fairies for a mere 2 grand.

A lot of us here strongly discourage these spec deals on shared copyright and/or future contingency payments. This is a realy good example of how badly they can turn out.

Nothing to do with TF* or even the releases. The killer is the side deals a lot of you seem so eager to make.

Studio36

You have to wonder where the breakdown in communication at Nestle took place. If they have someone pull a image for usage, whether it is in their library or from an outside stock agency,you would think that image would have to go through the legal department to make sure who owns the image and what are the usage terms for that image. Otherwise, as we see, you could end up in court. $$$$$$

studio36uk wrote:
The lesson here might not be the one Pat mentions about TFP and signing full commercial releases because Christoff was a professional model and working in a paid professional capacity for which he received his initial payment.... the lesson might better be just pay the model IN FULL and get the unrestricted commercial release.

Note that this was an agency job.  The "release" was probably an agency voucher, and the terms negotiated by the agency prior to the shoot.

Agencies will give full "buyout" terms for shoots, but especially for major corporations, it is quite expensive.  In this case, it would certainly have been a lot more than the $2,000 in the original contract, likely well over $10,000.  Typically corporations negotiate for the usage they intend to make use of, and then renew or expand the usage (for an additional fee) if they decide to continue using the image.  It's a major income source for agencies and models.

TXPhotog wrote:

Note that this was an agency job.  The "release" was probably an agency voucher, and the terms negotiated by the agency prior to the shoot.

Agencies will give full "buyout" terms for shoots, but especially for major corporations, it is quite expensive.  In this case, it would certainly have been a lot more than the $2,000 in the original contract, likely well over $10,000.  Typically corporations negotiate for the usage they intend to make use of, and then renew or expand the usage (for an additional fee) if they decide to continue using the image.  It's a major income source for agencies and models.

Hopefully, the norm is that corporations actually research the terms of use and contracts in place before they use anything which could result in a lawsuit. This could just as easily been a song, landscape photo, illustration, trademarked brand name, or even a font.

Lumigraphics wrote:
Hopefully, the norm is that corporations actually research the terms of use and contracts in place before they use anything which could result in a lawsuit. This could just as easily been a song, landscape photo, illustration, trademarked brand name, or even a font.

Many times a company has called me up out of the blue and asked to renew usage rights on something they had shot a year or more before.  Mostly they do check, and mostly they do follow the law and their contract.

On the other hand, I've had models come in and present me with tearsheets that were used outside the terms of the usage license given to the client, and that resulted in some interesting (and profitable) conversations with clients.  The agency has a strong bargaining position if the use has already happened and the client didn't renew usage

TXPhotog wrote:

Many times a company has called me up out of the blue and asked to renew usage rights on something they had shot a year or more before.  Mostly they do check, and mostly they do follow the law and their contract.

On the other hand, I've had models come in and present me with tearsheets that were used outside the terms of the usage license given to the client, and that resulted in some interesting (and profitable) conversations with clients.  The agency has a strong bargaining position if the use has already happened and the client didn't renew usage

LOL I bet. I've worked in print publishing and rights were always an issue, and a standard question- "Do we have rights to all this stuff?"

PYPI FASHION wrote:
I don't believe the validity of the release is being argued. Nestle is arguing that it is a single violation so the damage should be $750.

I keep reading that, but that isn't what is going on.  The amount of the judgment isn't under appeal.  At trial, Christoff prevailed and was awarded $15 million, a large part being the profits earned by Nestle.  You are correct, the appellate court reversed, but not because they thought that he was only entitled to $750, but they ruled that the statute of limitations had expired, i.e. the lawsuit as barred.

The Supreme Court has taken up the case, which to some degree, would suggest that they disagree with the Appellate Court.  If the Supreme Court allows the case to proceed, the $15 million judgment will be restored.

What is at issue is something called the "Single Publication Rule."  That is not about a single violation.  What is says is that the statute of limitations begins to run upon first publication.  All subsequent publications are considered part of the first for the purpose of calculating the statute of limitations.

The reason this is an issue is that Christoff didn't learn of the use until more than five years had elapsed from the date of first publication.  His argument is that the statute of limitations should start to run when he first learned of the improper use, not when it was first published.

That is the question the court is deciding, not whether the damages should be $750 -vs- $15 million.  He will get it all or he will get nothing.

ron w photography wrote:
Many of you already have extremely good knowledge of the legalities of model releases, image use agreements etc. BUT MANY DON"T HAVE A CLUE WHILE THINKING THEY DO! Here's a real case involving a major company. A good example of what you could either be up against, or what you might be suing for. It will only take 2-3 minutes to read. Enjoy and learn.
http://www.loweringthebar.net/2009/06/u … court.html

This is not a good example, there are enough unique features to make this largely irrelevant to most people on MM.

Ray Holyer wrote:
This is not a good example, there are enough unique features to make this largely irrelevant to most people on MM.

+1, this has nothing to do with MM photographers and models, if for no other reason, I doubt that there are many, if any, photographers here who use a limited use release.  By that I mean it is very unlikely that anyone here has a release that says they can use it for one commercial use, but not another.  More importantly, I doubt that anyone here would forget the use if they did.

TXPhotog wrote:
Note that this was an agency job.  The "release" was probably an agency voucher, and the terms negotiated by the agency prior to the shoot.

Agencies will give full "buyout" terms for shoots, but especially for major corporations, it is quite expensive.  In this case, it would certainly have been a lot more than the $2,000 in the original contract, likely well over $10,000.  Typically corporations negotiate for the usage they intend to make use of, and then renew or expand the usage (for an additional fee) if they decide to continue using the image.  It's a major income source for agencies and models.

That is true. However, I did observe that there was a set figure for, at least, that first use... the coffee brick. That's where it all started to go wrong. The 2 grand, noted, was to have been in addition to the fee he had already been paid.

As to the amount we also have to take into account the time the work was first done and the contract established - was some 23 years ago [1986]

Studio36

Ray Holyer wrote:

This is not a good example, there are enough unique features to make this largely irrelevant to most people on MM.

All I'll say is I can't believe you made this statement. But then again opinions like this is exactly why I opened this thread. BTW I edited my OP because of this to make it a little more clear what I meant. A lot of members here ask questions about these issues and the OP is a real world example of what CAN happen to ANY of us if we do what Nestle both did and did not do.

ei Total Productions wrote:

+1, this has nothing to do with MM photographers and models, if for no other reason, I doubt that there are many, if any, photographers here who use a limited use release.  By that I mean it is very unlikely that anyone here has a release that says they can use it for one commercial use, but not another.  More importantly, I doubt that anyone here would forget the use if they did.

You clearly underestimate the success and business knowledge of many MM members.

ron w photography wrote:
Many of you already have extremely good knowledge of the legalities of model releases, image use agreements etc. BUT MANY DON"T HAVE A CLUE WHILE THINKING THEY DO! Here's a real case involving a major company. A good example of what you could either be up against or what you might be suing for. It will only take 2-3 minutes to read. Enjoy and learn.
http://www.loweringthebar.net/2009/06/u … court.html

EDIT: I should have stated the following. THIS IS WHAT YOU COULD BE UP AGAINST IF YOU DON'T UNDERSTAND THESE AGREEMENTS,YOU GET SLOPPY/LAZY HANDLING THE PAPER WORK, OR YOU JUST DON'T CARE ABOUT THESE AGREEMENTS AND DISREGARD THEM, EVEN AFTER THEY WERE SIGNED.

Okay, then, let me explain myself a bit more simply, but I DON'T NEED TO USE CAPS.

If people don't know about model releases and usage agreements, then the unique features of the case you linked to won't help at all.

OKAY?

ei Total Productions wrote:
+1, this has nothing to do with MM photographers and models, if for no other reason, I doubt that there are many, if any, photographers here who use a limited use release.  By that I mean it is very unlikely that anyone here has a release that says they can use it for one commercial use, but not another.  More importantly, I doubt that anyone here would forget the use if they did.

ron w photography wrote:
You clearly underestimate the success and business knowledge of many MM members.

The probability of anyone here every getting involved in anything evenly remotely similar to what happened to Nestle is infinitesimally small.  It is entirely possible that a member here could get himself sued for using an image without a release/consent.  There could be right to privacy issues, but a $15 million judgment, under similar circumstances, isn't even worth discussing.

It happens that it is an interesting case.  The question of "single publication" and the statute of limitations is intriguing.    The facts are also quite clear, Nestle didn't have consent to use the likeness on the jar, for which it clearly reinforces the notion that you need to live within the limitations of your agreements.

On the other hand, it is quite clear, Nestle's misuse was totally inadvertent.  That doesn't mean it wasn't a violation, but this isn't a situation where they stole his likeness, a clerk simply made a mistake.  She thought she had a release but didn't.

Let's discuss cases of interest, but let's not suggest that anyone here on MM could remotely get themselves into a similar situation.  I agree that you need to follow your agreements, but I have a hard time believing that anyone here is likely to simply "forget" what they had memorialized in their release.

It is far more important to teach people about release, when they are needed and what they do than to fear monger.

Ray Holyer wrote:

Okay, then, let me explain myself a bit more simply, but I DON'T NEED TO USE CAPS.

If people don't know about model releases and usage agreements, then the unique features of the case you linked to won't help at all.

OKAY?

You're implying that people don't have the ability to learn and aren't interested in learning. Many MM members ask questions about this sort of thing all the time. This post was intended to put real world info, as opposed to a lot of flat out false "I heard this from Joe the whino" info that is thrown around in the forums, in front of at least one MM member that might now better comprehend some of the legal issues that photographers CAN and DO run into, and just maybe that one person will begin to take steps to avoid being in a similar situation. Or maybe will better understand when someone has taken advantage of them and improperly used an image and now that MM member has potential grounds to pursue legal action against them. None of us were born with knowledge about anything. And hopefully with photography we won't learn the hard way by either getting ripped off, or worse, by getting our pants sued off.

ei Total Productions wrote:

ei Total Productions wrote:
+1, this has nothing to do with MM photographers and models, if for no other reason, I doubt that there are many, if any, photographers here who use a limited use release.  By that I mean it is very unlikely that anyone here has a release that says they can use it for one commercial use, but not another.  More importantly, I doubt that anyone here would forget the use if they did.

The probability of anyone here every getting involved in anything evenly remotely similar to what happened to Nestle is infinitesimally small.  It is entirely possible that a member here could get himself sued for using an image without a release/consent.  There could be right to privacy issues, but a $15 million judgment, under similar circumstances, isn't even worth discussing.

It happens that it is an interesting case.  The question of "single publication" and the statute of limitations is intriguing.    The facts are also quite clear, Nestle didn't have consent to use the likeness on the jar, for which it clearly reinforces the notion that you need to live within the limitations of your agreements.

On the other hand, it is quite clear, Nestle's misuse was totally inadvertent.  That doesn't mean it wasn't a violation, but this isn't a situation where they stole his likeness, a clerk simply made a mistake.  She thought she had a release but didn't.

Let's discuss cases of interest, but let's not suggest that anyone here on MM could remotely get themselves into a similar situation.  I agree that you need to follow your agreements, but I have a hard time believing that anyone here is likely to simply "forget" what they had memorialized in their release.

It is far more important to teach people about release, when they are needed and what they do than to fear monger.

You miss the point entirely. You apparently focused on the size of the judgement. My point is you can be SUED. period. And as for inadvertent, ask Nestle what "inadvertent" cost them in legal fees. And you and a few others seemed to miss the other side of this case. If the copyright of the image belonged to you along with the same limited use agreement.....??????

ron w photography wrote:
You miss the point entirely. You apparently focused on the size of the judgement. My point is you can be SUED. period. And as for inadvertent, ask Nestle what "inadvertent" cost them in legal fees. And you and a few others seemed to miss the other side of this case. If the copyright of the image belonged to you along with the same limited use agreement.....??????

If your point is that using one's likeness without consent means that in some states and under some circumstances, you can be sued, I totally agree with that.  This case is just a bad example.  More importantly, Nestle chose to make a statement with this case because they felt strongly about the technical issues.

I do agree that people need to understand that you can, in some situations get sued.  I think you would have been better served by pointing out that this was an extreme example, and at this point, it isn't resolved.