Vector One Photography wrote:
Just one issue.... model releases are a type of contract and contracts are controlled by state law. Some releases are in contract form; some are not. It depends on whether the release says there has been 'consideration' (something of value) provided to the model. Without consideration, the release is essentially a gift, not a contract.

So his advise should be accurate for California but may not be valid in New York or Florida.  Copyright is federal and the same in all states, model releases are on a state by state basis.

My comments are interleaved in boldface

JBP Graphics wrote:
Thanks. But its only 8 pages, unless 4 have been removed since posting?

I believe this is the link to the 12-page lengthier article:

http://www.dropbox.com/s/r7717t5yg0qtfa … s.pdf?dl=0

Ken Marcus Studios wrote:
This is the Model Release that I have been using for several years.
It was written by my attorney who specializes in 2257 and publication, and has been approved for use by the Legal Departments at Penthouse, Playboy, Hustler, and Muscle & Fitness magazines.

The staff at my studio have instructions not to let me shoot anyone, unless they first fill out and sign both a model release and the appropriate 2257 forms (even if there is no nudity). It's the first thing models are required to do before I even pick up my camera. As a professional, I won't take the unnecessary risks by not complying with the 2257 Federal Regulations or being sued by a model.

Feel free to use this release, if you'd like . . . just please change my name to yours (or I will own your releases).

KM

Decay of Memory wrote:
Sorry for the bother. You wouldn't happen to have a link to it in text form?

Ken Marcus Studios wrote:
Here is the important text (minus the form layout design):  www.onlinepixxx.com/Model_Release_word.docx

KM

Ken Marcus Studios wrote:
This is the Model Release that I have been using for several years.
It was written by my attorney who specializes in 2257 and publication, and has been approved for use by the Legal Departments at Penthouse, Playboy, Hustler, and Muscle & Fitness magazines.

The staff at my studio have instructions not to let me shoot anyone, unless they first fill out and sign both a model release and the appropriate 2257 forms (even if there is no nudity). It's the first thing models are required to do before I even pick up my camera. As a professional, I won't take the unnecessary risks by not complying with the 2257 Federal Regulations or being sued by a model.

Feel free to use this release, if you'd like . . . just please change my name to yours (or I will own your releases).

KM

But you can't release images you haven't shot yet? That's literally opening yourself up to a lawsuit.
Also, no way in a billion years would I ever sign a release stating that my real, legal name can be used, i.e. "in conjunction with my own or fictitious name."
Just because you've been using a release for years and having model release images she literally hasn't shot yet doesn't make it right or a best practice.

B R E N N A N wrote:
But you can't release images you haven't shot yet?

[snip]

having model release images she literally hasn't shot yet doesn't make it right or a best practice.

An interesting and valid point.

Thank You!

Ken Marcus Studios wrote:

Decay of Memory wrote:
Sorry for the bother. You wouldn't happen to have a link to it in text form?

Ken Marcus Studios wrote:
Here is the important text (minus the form layout design):  www.onlinepixxx.com/Model_Release_word.docx

KM

Thank you.

Zave Smith Photography wrote:
Easy Release

From what I understand, Getty won't accept any customized version of a release through Easy Release. Adult magazines like those mentioned in this thread require more specifics regarding content than specified in the standard Easy Release version.

One size does not fit all.

B R E N N A N wrote:
But you can't release images you haven't shot yet? That's literally opening yourself up to a lawsuit.
Also, no way in a billion years would I ever sign a release stating that my real, legal name can be used, i.e. "in conjunction with my own or fictitious name."
Just because you've been using a release for years and having model release images she literally hasn't shot yet doesn't make it right or a best practice.

It's a common misconception that the model is releasing the "pictures".  That's not what's really going on.

What a typical release actually does is to grant permission to use the model's likeness in the specified manor.  This is not specific to any particular image, or even to the shoot.   Most model releases grant permission for the likeness to be edited, distorted, etc., and specifically waive the right to inspect the images.   

Taken at face value, most releases allow you to use any photo ever taken of the model (no matter who took them), or any photo yet to be taken (subject to permission of the copyright holder), as long as the use of her likeness falls within the bounds of the released use.

For instance, if I do a catalog shoot for a swimwear company, and the model authorizes her likeness to be used "in printed catalogs for brand X clothing, for a period of 1 year,"  That permission would apply to images taken in the past, and also to images taken a month later.  Furthermore, If the model allowed distortions and waived the right to inspect (as is typical), I could Photoshop her face onto someone else's body for use in that catalog.

I am not saying I would do such a thing, but I am saying that a typical model release would allow it.

====
By the way, even if you think the model is releasing the images from that particular shoot, if she waives the right to inspect the images, there is no problem with signing the release before the shoot.

====
Consider someone who goes on a rafting trip, a scuba diving trip, skydiving, or other potentially risky activity.  Almost certainly the operator of the excursion will require you to sign away your right to sue should you get hurt.   It is legal to sign that right away prior to engaging in the activity, even though you don't know whether or not the operator will follow safety procedures to your liking.

Michael Fryd wrote:
What a typical release actually does is to grant permission to use the model's likeness in the specified manor.  This is not specific to any particular image, or even to the shoot.   Most model releases grant permission for the likeness to be edited, distorted, etc., and specifically waive the right to inspect the images.

I have never heard this. While not a lawyer, I have been using model releases for decades. EVERY model release I use defines the release to a Shoot. The definition of a Shoot is typically defined as a day unless specifically address as a date range. Multi-day releases are not common. Your supposition that a model releasing one shooting day affects all prior images shot at separate sessions is, in my opinion, inaccurate. The industry practice is COMPLETELY opposite of this and I have literally NEVER heard that put forward as a common or any way accepted practice.

I would estimate that the most commonly used release is the Getty Stock model release which is accepted by all other stock agencies. It addresses shoot as a specific day. I don't believe they even accept multi-day releases. EasyRelease's standard language is similar.

Even if you can construe some minor nuance in some state law, no sensible photographer or publication would want to go into any court with that as their defense. They would lose in every case. It would be interesting to hear the referenced lawyer's take on your supposition. Your example of a release covering past images is reckless. The idea of it covering future images is ludicrous.

Dan Howell wrote:
I have never heard this. While not a lawyer, I have been using model releases for decades. EVERY model release I use defines the release to a Shoot. The definition of a Shoot is typically defined as a day unless specifically address as a date range. Multi-day releases are not common. Your supposition that a model releasing one shooting day affects all prior images shot at separate sessions is, in my opinion, inaccurate. The industry practice is COMPLETELY opposite of this and I have literally NEVER heard that put forward as a common or any way accepted practice.

I would estimate that the most commonly used release is the Getty Stock model release which is accepted by all other stock agencies. It addresses shoot as a specific day. I don't believe they even accept multi-day releases. EasyRelease's standard language is similar.

Even if you can construe some minor nuance in some state law, no sensible photographer or publication would want to go into any court with that as their defense. They would lose in every case. It would be interesting to hear the referenced lawyer's take on your supposition. Your example of a release covering past images is reckless. The idea of it covering future images is ludicrous.

Model Release address right of privacy and right of publicity laws.

In New York state you need a persons written consent to use their name, portrait or picture  for advertising purposes, or for the purposes of trade.

Most standard releases grant permission to use photographs of the model for the stated purpose.  It is rare to see a release that is limited to photos taken at a specific shoot.

For instance the standard PPA release says: "I, _________________________________________________ [print name of person giving the release] for good and valuable consideration, the receipt of which is hereby acknowledged, hereby irrevocably authorize [name of photographer or studio including location] to use photographs of me".   Note that it does not include a limitation such as "photographs taken of me on 5/27/2019," "photographs that I approve," or even "the photographs that were just taken of me by ....".   The plain meaning of the release is that the photographer can use any photo of the model for the allowed purpose.  Restrictions, are generally on when and how the model's likeness may be used, not on which photos may be used.

While it's certainly a good idea to get a release for each shoot (it makes sure that everyone is aware that a release exists), most blanket releases are not limited to a particular shoot.


Yes, it certainly does seem strange, and it's not what we have been taught, but it's what most releases actually say.

Obviously, this is not "legal advice", and you should never rely on advice from the web.  The specifics of a situation may result in an outcome that differs from the norm.  For reliable legal advice, speak to an attorney.


Of course, celebrities generally negotiate releases than allow them to specifically review and approve what images may be used.

Michael Fryd wrote:
Yes, it certainly does seem strange, and it's not what we have been taught, but it's what most releases actually say.

All photographers should disregard the above information.

It is woefully inaccurate. There is absolutely no implied release for images taken a month after an unrelated shoot. This kind of advice will get an uninformed photographer in trouble. It is patently irresponsible for you to repeat it. That is absolutely as polite as I can put it.

This is the Getty Model Release form:
https://contributors.gettyimages.com/im … e1ee44.pdf

Michael Fryd wrote:
For instance the standard PPA release says: "I, _________________________________________________ [print name of person giving the release] for good and valuable consideration, the receipt of which is hereby acknowledged, hereby irrevocably authorize [name of photographer or studio including location] to use photographs of me".   Note that it does not include a limitation such as "photographs taken of me on 5/27/2019," "photographs that I approve," or even "the photographs that were just taken of me by ....".   The plain meaning of the release is that the photographer can use any photo of the model for the allowed purpose.  Restrictions, are generally on when and how the model's likeness may be used, not on which photos may be used.

Just to demonstrate the level of your arrogant and irresponsible contribution, here is the ACTUAL language of the model release you reference:

From the PPA website linked:
I, _________________________________________________ [print name of person giving the release] for good
and valuable consideration, the receipt of which is hereby acknowledged, hereby irrevocably authorize [name of photographer or studio including location] to use photographs of me and or my property
and authorize [choose one: him/her/their] and [choose one: his/her/their] assignees, licensees, legal representatives and transferees to use and publish (with or without my name, company name, or with
a fictitious name) photographs, pictures, portraits or images herein described in any and all forms and media and in all manners including composite images or distorted representations, and the purposes of publicity, illustration, commercial art, advertising, publishing (including publishing in electronic form on CDs or internet websites), for any product or services, or other lawful uses as may be determined by the photographer or studio name here. I further waive any and all rights to review or approve any uses of the images, any written copy or finished product. I am of full legal age and (delete the bold copy if this is for a minor) have read and fully understand the terms of this release.

Description of images...."

You obviously intentionally left out the language "photographs, pictures, portraits or images herein described" and then the direction for description of the shoot.  Do I need to explain that to you? It means the release applies and only applies to a specific shoot indicated by description and date.

I can only assume that you want photographers to get in trouble. Can we get a moderator up in here?

Michael Fryd wrote:
Taken at face value, most releases allow you to use any photo ever taken of the model (no matter who took them)

Of cause it matters who took the image. If I took the photo of a model, she can't grant the rights for usage to someone else. I'm the copyright owner of the photos I took.

Michael Fryd wrote:
It's a common misconception that the model is releasing the "pictures".  That's not what's really going on.

What a typical release actually does is to grant permission to use the model's likeness in the specified manor.

Technically this is true based on the research I've done.  In fact if the model is not "identifiable" in an image, a release is not technically necessary at all.

Of course for practical purposes common practice may be different, as Dan has pointed out.  Who wants to completely give up their rights without limitation?  And of course it's better to make things clear up front rather than arguing about them in court later.

I think it's good to understand that in it's purest form, the release is about the models likeness and whether it can be published, not necessarily the specific photos, unless of course the release is made to be more specific.

poiter wrote:

Of cause it matters who took the image. If I took the photo of a model, she can't grant the rights for usage to someone else. I'm the copyright owner of the photos I took.

Copyright is a completely separate issue.  The model is releasing the rights to her likeness, this has nothing to do with copyright.

Taking a picture of someone doesn't prevent them from releasing rights to their likeness to someone else.

Gary Davis wrote:

Copyright is a completely separate issue.  The model is releasing the rights to her likeness, this has nothing to do with copyright.

Taking a picture of someone doesn't prevent them from releasing rights to their likeness to someone else.

Yes the model can release their rights to their likeness to someone else. But that other person can't use the photos I took of the model without my permission, because I'm the copyright owner.

This is what "Michael Fryd" wrote:
Taken at face value, most releases allow you to use any photo ever taken of the model (no matter who took them).

Which is not true. For example the model can sign away her likeness to Michael Fryd, but Michael can not use photos this model taken by me, unless I too have granted him permission.

poiter wrote:
This is what "Michael Fryd" wrote:
Taken at face value, most releases allow you to use any photo ever taken of the model (no matter who took them).

That's not what he wrote.  It's a small piece of what he wrote in which you've conveniently left out a key part.

Which is not true. For example the model can sign away her likeness to Michael Fryd, but Michael can not use photos this model taken by me, unless I too have granted him permission.

This is exactly what he said if you'd bother to finish the sentence.

Gary Davis wrote:

Yes you are right, I mistakenly glossed over the next part of what he wrote.

poiter wrote:

Of cause it matters who took the image. If I took the photo of a model, she can't grant the rights for usage to someone else. I'm the copyright owner of the photos I took.

In order to use a photo of a model in an advertisement, you generally need permission both from the model and the copyright holder.    Typically, the model grants "assignable permission" to the photographer.  The photographer is typically also the copyright holder, and this puts him in the convenient position of being able to grant permission for both the copyright and using the model's likeness.

I have done catalog shoots where the clothing company arranged for the models.  The clothing company got releases from the models, and a copyright license from me.   In that case, the model granted a release directly to the company that would be using the images, and not to the photographer.  My rights to the image were only in the copyright, I did not have a release from the model.


Rights of Publicity issues are separate from copyright issues, but they are frequently handled together as both must be addressed.

Ken Marcus Studios wrote:

Decay of Memory wrote:
Sorry for the bother. You wouldn't happen to have a link to it in text form?

Ken Marcus Studios wrote:
Here is the important text (minus the form layout design):  www.onlinepixxx.com/Model_Release_word.docx

KM

The staff at my studio have instructions not to let me shoot anyone, unless they first fill out and sign both a model release and the appropriate 2257 forms (even if there is no nudity).

1. Can you link to the2257 form(S)
2. Why do you take the precautions to have a Federal 2257 form sign if there is no nudity?

V-Flat Travis wrote:
....
2. Why do you take the precautions to have a Federal 2257 form sign if there is no nudity?

Nudity is not a requirement for 2257 to be apply.

Nudity does not automatically require 2257.


Not all porn involves nudity.   A crotch shot of someone in a tight fitting bathing suit might apply.   Not everything that includes nudity is porn.  For instance a plastic surgeon's before and after photos of a breast implant client.

Michael Fryd wrote:
Not all porn involves nudity.   A crotch shot of someone in a tight fitting bathing suit might apply.   Not everything that includes nudity is porn.  For instance a plastic surgeon's before and after photos of a breast implant client.

Thank You

I didn't take the time to think the question thru.

I still think it would be helpful to see how a Professional with years in the industry, such as Ken, words and handles these situation. And to read why he takes those precautions, I rather learn from his wisdom and mistakes, then fail by not asking a question that points me(you) in the right direction.

Hunter  GWPB wrote:
Porn is based on community standards not objective criteria.  To some people, any nudity is porn. There are pieces in the Philadelphia Museum of Art that show cherubs as nude human male children with wings.  I wouldn't dream of painting those figures today.  If a parent can be investigated for having photos of their infant or toddler nude, how long would it take before someone had a search warrant for my computer after I painted nude cherubs anatomically like children?  When political leadership changes, the interpretation of the laws and the enforcement of the laws may change. 

The reason to obtain 2257 forms no matter what, is that you can't be prosecuted if you are in compliance.  Otherwise, you may be prosecuted, even though by our community's (MM) standard, we are no where near porn.

Let's hope 2257 doesn't survive appeal, but it is going to be a while.

2257 is a federal issue.  2257 compliance generally isn't an issue for local laws.

Michael Fryd wrote:
2257 is a federal issue.  2257 compliance generally isn't an issue for local laws.

Perhaps you would share the Federal definition of pornography with us and that will clear it all up?  This is what I found:  "The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest."  What exactly is sexual behavior?  Does it include a woman in a photograph, standing next to a window and being shot in natural light with an expression that says, "Here boy." What exactly is erotic, lewd and what activities are designed to arouse sexual interest? Some people would say that an art nude, including some allowed on MM, would arouse sexual interest. Why is the nude female contest, by far, the more popular contest? It is just the artistic appreciation of the female nude over all the other types of images displayed, but is not driven by sexual interest?

"The Roth test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The Roth test proved difficult to use because every term in it eluded a conclusive definition." 

If I am going to be investigated at the federal level, I will be tried in the federal courts and a jury of my peers in the district court will be selected from the area included within the jurisdiction of the Pennsylvania Eastern District Court.  A person having a trial involving 2257 in DesMoines will have jutors from the Southern District Court of Iowa.  And so on around the nation.  The standards the jury uses to decide, because they are not going to put away personal feelings, will then be influenced by the community standards of those jurors.  Will those 12 people represent an accurate cross section of the population?  Doubt it.  And a good prosecutor will be trying to slant the jury to favor a win- not to favor the outcome that best represents truth and justice.

I referenced the Roth test for obscenity, and before you tell me that it is not relevant- the test separates pornography from obscenity.  is 2257 record keeping required for obscenity?  In  a 2257 case, will the court (jurors) have to decided if the material involved was obscenity, pornography or neither?  " the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be "utterly without redeeming social value" and "patently offensive because it affronts contemporary community standards relating to the description of sexual matters." The phrase "utterly without redeeming social value" allowed a loophole for pornographers."  So, there it is, right in the court conclusion, "community standards."  And when you are faced with 12 jurors that might see nudity = pornography = obscenity, do you want to have the 2257 forms filled out, just in case, or are you going to trust that the jurors will see nudity ≠ pornography ≠ obscenity?  What, exactly, is the social value of a woman standing naked next to a window?  And will that social value be the same to jurors where you live to jurors where I live?

All prosecutions and trials are local.  I said nothing about local laws.  Since I used the cherubs as an example: "Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law. Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age)." ....  "Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity.  A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive."


reference for quotes:
https://legal-dictionary.thefreediction … ornography
https://www.justice.gov/criminal-ceos/c … ornography

Hunter  GWPB wrote:
Perhaps you would share the Federal definition of pornography with us and that will clear it all up?  ...

18 U.S. Code § 2257 applies to  any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—
(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce.

Hunter  GWPB wrote:
Perhaps you would share the Federal definition of pornography with us and that will clear it all up?

Actually, I think it would be more helpful to remind everyone that a 2257 document is not a model release, the subject of this thread.