Hunter  GWPB wrote:
...

The question that I answered previously was why someone should consider having a 2257 form signed for all photoshoots. There are several reasons.  But without going into all the possibilities, no matter how implausible, the most pragmatic reason is to cover one’s ass.  If you want to nit pick the difference of what is “Actual Sexually Explicit Conduct,” in light of the 2256(2)(B) requirements, be my guest.  A photographer can sit down and figure out if anything is going to happen on any particular shoot that might be covered by 2256(2)(B).  Of course, a photographer is welcome to delete any image from the computers and cards, carefully assessing that all versions and traces of an offending image are gone from all storage devices. He can gauge what a prosecutor’s opinion will be as to the pertinence of all the images relative to 2256(2)(B). An image shot under 2256(2)(A) is exempt from 2257 because it is simulated, but what if it is simulated so well that people don’t believe it is simulated?  He can never transport the images across state or national boundaries or engage the images in commerce, whatever that means.  If anyone of the criteria of 2256(2)(B) or 2257(a), parts (1)and (2) are not met, then 2257 doesn’t apply. I guess,  Or the photographer can use one sheet of paper and five minutes to meet the paperwork requirements of 2257, and avoid all of the gray areas, because they are rendered mute with the paperwork.

...

I could be mistaken, but I was under the impression that 2257 requires not only collecting certain records (some of which may seem onerous), but it also requires making those records available and publishing a notice with the images as to where to find the custodian of those records.

I don't think that collecting the records and keeping them in your filing cabinet would be a defense against a 3357 infraction.

Michael Fryd wrote:
I could be mistaken, but I was under the impression that 2257 requires not only collecting certain records (some of which may seem onerous), but it also requires making those records available and publishing a notice with the images as to where to find the custodian of those records.

I don't think that collecting the records and keeping them in your filing cabinet would be a defense against a 3357 infraction.

Yes.  2257 section (e)

I appreciate your knowledge on the subject and I think that it is good to have these discussion every now and then.  If it wasn't for a similar discussion in the forums some years ago, I would have never known to read the statutes and associated literature.  Fortunately for me, my goal is not to distribute photographs or video.  Paintings do not apply to 2257.  Apparently.  Maybe.  I think.   If my painting is of an actual human being, there are still the words "picture" and "other matter" in 2257(a). The dictionary definition of picture includes paintings and drawings.  I have no idea how to fix the information onto a painting   And as I strive to get better and make my paintings of faces to be more recognizable of the person in them, I wonder if I should be making faces more generic in anything that could be subject to 2257, which conflicts with my goals.  Or if I painted a cherub, I would have to come up with some piece of anatomy that doesn't exist in nature. Or a third eye or something to replace the genitals. Although I would not classify anything that I have done as even close to being subject to 2256b or 2257, I have ideas that would be.  I am planning a couple of pieces with poses where the face is turned away or otherwise adequately obscured.  I have several reasons for that and an oppressive government requirement is just one more concern that is without artistic merit.

Regarding the notification requirement, if a photographer doesn't have the records, he can't affix the required information onto the image.  Once he attaches the statement, he better have the records in his filing cabinet or other convenient place.  I wonder what a photographer will do if the statement refers to a current residence or place of business and he moves.  With images already circulated on the market place, he cannot update the information.  As you said, it is onerous.  I am all for stopping the sexual exploitation of children, but this law was not thought out.  I look forward to the government losing the appeal.  Even then, we could be far from being rid of it.

Hunter  GWPB wrote:
...I am all for stopping the sexual exploitation of children, but this law was not thought out.  I look forward to the government losing the appeal.  Even then, we could be far from being rid of it.

2257 is not a law intended to address child pornography, it is a law intended to make it difficult to generate any pornography, no matter what the age of the participants.

If you don't have proper records for an obviously 80 year old woman, you can be jailed for violation of 2257.

If you have proper paperwork for a 17 year that used forged ID, then you are not in violation of 2257.

People talk about Traci Lords, a 17 year old who became a porn star by using a fake ID.   If 2257 was in effect at the time, the producers of those video would have been fine, as her use of a fake ID allowed them to meet the safe harbor provisions of the law.

I am also for stopping the sexual exploitation of children, but 2257 was never intended to actually address that issue.  It is only billed as anti child pornography because that makes it politically difficult for lawmakers to object to it.

Hunter  GWPB wrote:
I don't disagree.  It was poorly thought out.  All aspects of it.   There used to be a guy in the forums that railed against everyone that spoke out against 2257 as being in favor of child exploitation.  The problem is that is what the law was publicized as and beliefs trump facts.

I disagree.  The law was carefully thought out, and does exactly what it was intended to do.  It places a hardship on those who wish to create otherwise legal pornography.  It uses the cover story of "protecting" minors.

If you believe that the law was actually intended to somehow protect children, then you were fooled by their PR.


I think it is helpful to do a sanity check on various claims by lawmakers.   Whether or not the law is a good idea, it may not serve the advertised purpose.

For instance, in this country we have a problem with foreigners entering legally for a short visit, and then taking up residence.  We also have a problem with drugs and other contraband being hidden in shipments of legal cargo, and smuggled into this country through legal ports of entry.   Some are concerned with the volume of people who legally present themselves at a US port of entry and request asylum.

Some have suggested that the solution these problems is to build a wall across remote stretches of the border.   Whether or not a wall is a good idea is an interesting question, however it is clear that a wall will address none of the above advertised issues.

Hunter  GWPB wrote:
It is conceivable that your analogy applies.  I have had plenty of people "serving" the people lie to my face and misrepresent laws.  I wasn't involved with model photography when 2256 and 2257 were passed.  I didn't see discussions of it in the paper or on TV.  I see the topic is about child exploitation.  I could hardly be fooled by talking points about something I knew nothing about until years after it was implemented.  Until I see the deceit, I am inclined to cautiously take people at face value.

I am not going to get into discussing a particular current event which I believe is/is not built on lies or try to determine if the people pushing an agenda about a particular ineffective solution, are liars, ignorant, racist or just plain stupid.    The problem is, the lies aren't obvious to everyone, or the lies fit their agenda and beliefs.  On a broad sense, politician or family member, if they lie to me on a regular basis, if the evidence consistently disagrees with their statements; yeah, I get what you are saying. But I can't make a judgement call on this law, as to it being deceptively passed and implement as a ruse for a different agenda.  I just don't have the evidence.  If that is what you say, fine.  But one aspect of the law doesn't jive with what you are saying, and that is the lax enforcement of 2257 is inconsistent with the goal of eliminating,  I am going to say porn, as opposed to child exploitation.  It hardly seems like burdening us and leaving it at that serves the end game of eliminating the availability of porn, as if that is possible, when they can be scaring the crap out of us by actually prosecuting 2257 cases and throwing people in the hoosegow!

From your perspective, it was well thought out because you believe the law was deceitfully passed.  From my perspective it is not well thought out because it is looking like it won't pass Constitutional muster. It was not well thought out because it is ineffective and burdensome.  Your point of view requires that you make a judgement about the unscrupulous intent of the law.  My point of view is about the law.  I never heard of Traci Lords until the same thread I learned about 2257.  It isn't that I think you wrong in your beliefs.  I think it is irrelevant how 2257 came about.  By whatever hook or crook that occurred, we have 2256 & 2257 to deal with and it is going to overturned because it is unconstitutional, not because it is ineffective or burdensome, (taxes are burdensome).  And it will not be overturned because politicians were afraid of political repercussions for voting for a bill which was misrepresented by unscrupulous people.  Our whole system is about misrepresentation.  Congress lying to the people is part of the process and our recourse for that is limited to the ballot box.

I made no claims that the lawmakers are unscrupulous or have bad intent.    I believe the motive behind the 2257 law was a well intentioned intent to make the USA a "better" place by reducing pornography of all kinds.   By billing the law as an attack on child pornography, this well intentioned law would be more likely to pass.

In terms of border protection, there are many good reasons why one would want to build a border wall.  However, the advertised reasons are the ones more likely to get support, not necessarily the reasons that apply.

There is no need to assign bad intent.   It's quite possible that the people promoting these laws are doing what they believe is best for the country.   Whether or not they are correct, is an entirely separate discussion.

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.

He didn't say most of that. He said that the model release is about giving permission to use the person's likeness.

The rest is just clarifying that a likeness is a separate thing from a photo which is a copy of the underlying likeness.

It's somewhat analogous to the difference between a song and a recording of the song.

If there's no definition to the source of the likeness, for example "photos shot on month/day/year" then there's either a default within the jurisdiction (state) or it's something you fight about in a lawsuit.

poiter wrote:
My understanding is that the model release ONLY covers the date(s) written on the actual model release. Not before or after.

That's true if that's what the release says, but you and the model can agree to anything you want.

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), 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.

You're right about "taken at face value".

The thing is there are 50 states that all have laws that define legal terms and also define what's being agreed to if not specified in the written agreement.

Work for hire agreements are an example. If two parties put in writing "person A will work for person B on  X date for $Y" they have not defined whether or not that's a work for hire and there are laws that define whether it is or isn't when the written agreement hasn't defined it.

I think it's unlikely that there are photographers who have the right to use any photo shot of an individual they have a release for as well as transfer that right to a third party because that individual signed one of their releases that "at face value" is only discussing the right to use the person's likeness.

But your point about the likeness being a separate thing from a photo is correct.

Camera Buff wrote:
Release concerns - Sorting out a model release form is an essential part of a model shoot, so why is it a source of confusion?

If you intend selling pictures of a person for commercial use, you will categorically need a clearance. A signed 'standard' release form is better than not having one.

Selling pictures in more contentious markets may indeed require a more detailed 'non-standard' release form. One that specifies the pictures are cleared for use in those markets (e.g. healthcare).

KM was kind enough to show and tell us how and when he uses his version of a release. I didn't take it that KM is suggesting that his approach is the only professional approach. My thanks to him for sharing!

Only the party using the likeness commercially needs the release.

If you're saying that you don't believe anyone would by the photos and then get the release themselves, that's speculation that may be true, but a copyright can be sold or licensed without having name and likeness rights.

GRMACK wrote:
I agree with the above who have the model sign the release AFTER the photo session, and never BEFORE.

Should it go to court, the model could claim "He had me sign the release beforehand (under duress) and he used the pictures of me where he barged into my dressing room and took them while undressing.  I would never have signed or agreed to signing that release beforehand not knowing that he turned creepy or pervy."

I believe any judge, or jury, would frown upon that method of getting the release signed prior to the session that the model had no intentions getting into, and possibly any questionable behavior that later occurred after the release was signed.

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.

Yep. There's a whole line of "I hereby confirm I HAVE BEEN PROVIDED ...." whatever the compensation was supposed to be - payment, photos, whatever. If the compensation is photos and the photos dont even exist yet let alone have gone home and been edited...by that line a model shouldnt even sign this release until AFTER she gets the photos. But there's not a photographer on the planet that would be okay with that, I'm sure. We might "change our minds" because we're super untrustworthy.

I was also under the impression that 2257 junk was supposed to be a whole separate form with multiple filings and all kinds of complicated bullshit



Also, whether a release refers to specific photographs or "likeness" is kind of irrelevant to whether or not you should sign said release before or after.

If I sign it before, we take 5 shots and then something happens that causes a need for the shoot to not continue, I've signed away my right to whatever.

If I only sign after, we take 5 shots, something happens blah blah blah.... photographer has not gotten permission to whatever.

The issue isnt whether its the pictures or the "likeness" it's about when the photographer is granted access to use it

LightDreams wrote:
...

Then AFTER the shoot is complete, and everyone knows exactly what the shoot actually entailed, the final signature goes on the model release in exchange for the payment for the shoot.  Payment and signing the release is on completion.  That way, both the model and photographer have the comfort of knowing that each has something in reserve should someone try to pull a fast one at, or before, the end.  It helps protect both sides from any unpleasant surprises.

...

Of course, if you don't let the model review every image, she doesn't really know what you captured.  A wardrobe malfunction or an unusual pose might have revealed more than she knew.  Furthermore, some of the shots may have captured her in a moment that was not flattering.

If your goal is to be able to claim that the model approved the actual images, then you need to let her have the time and opportunity to actually review the images.   One could also make the case that if you really want her to approve the images, then the model needs to review them after you have edited them.

In the USA, what you need is permission from the model to use her likeness for the specified commercial purposes.  There is not a legal requirement for the model to release specific images.

Michael Fryd wrote:
If your goal is to be able to claim that the model approved the actual images, then you need to let her have the time and opportunity to actually review the images....

No, that's absolutely not the goal.  Not at all.  Even with the very best models, there are likely to be some unflattering shots.

The goal is entirely different.  You're both clear on what the release will say and that the model's ID and age are all fine, before the shoot commences.  And you both know the overall / general subject matter that you shot when the release is signed at the end of the shoot.  Whether necessary or not, it certainly doesn't weaken your case in the event of a dispute.

It also helps that both sides are more comfortable that they will trade a model release signature for full payment at the end of the shoot.  It has less potential for either party to try and pull a fast one during, or at the conclusion, of the shoot.  It's an attempt to try and keep things fair for everyone involved, while heading off any unexpected possible major roadblocks before the shoot even starts.