CliveStJohn wrote:
A release I use often reads: "For consideration already received, I hereby grant to the photographer and his representatives and assigns, the irrevocable and unrestricted right to use, modify and publish images of me or of my work or in which I may be included in any media and for any purpose and hereby release the photographer and his representatives and assigns from any and all claims, demands and liability relating to use of said images."

Your release is called a “full rights release” (sometimes called a “full rights grab”) as my underlining the appropriate clause above shows. I doubt that any major agency in Los Angeles (the location where I do commercial shoots) allows their models to sign releases, let alone a full rights release. Maybe Dublin is different. Maybe small agencies are different.

The general rule: You can’t sit in business class by paying a discounted coach fare. In other words, if you want the release above, you will have to pay for it. Agency releases for commercial shoots are very specific and not full rights grab. (Example: I know agencies in L.A. that charge extra if you want to show the model’s face in a catalog shoot.)

Full rights releases are standard for internet modeling, amateur shoots, agency models working outside their agency, and of course MM models. It’s a tremendous gift to the photographer or designer. In the world of professional photographers, agency models and 3rd party clients (like a fashion designer) full rights grabs are rare. Why pay for more than you intend to use?

Baanthai wrote:
The general rule: You can’t sit in business class by paying a discounted coach fare. In other words, if you want the release above, you will have to pay for it. Agency releases for commercial shoots are very specific and not full rights grab. (Example: I know agencies in L.A. that charge extra if you want to show the model’s face in a catalog shoot.)

Full rights releases are standard for internet modeling, amateur shoots, agency models working outside their agency, and of course MM models. It’s a tremendous gift to the photographer or designer. In the world of professional photographers, agency models and 3rd party clients (like a fashion designer) full rights grabs are rare. Why pay for more than you intend to use?

This.

To elaborate with a few examples, the typical release used by the MM crowd would allow a photographer to use images anywhere... whether it's Time Magazine or Pornhub, a cosmetic ad or an ad for HIV treatments, an ad for 'saving the planet' or an ad for the Trump campaign. 

It should be noted that for reasons mentioned above many models are better served by not signing such general releases.

Commercial releases may also include limitations on time (can only be displayed from March1 to April 30th) and placement of the image.

Baanthai wrote:
The general rule: You can’t sit in business class by paying a discounted coach fare.

Hahaha... well, I did! 
(on a return trip from your country on the Hong Kong to LA segment on Cathay Pacific)

Ken Marcus Studios wrote:
"For consideration already received, I hereby grant . . . . "
Already received means you have already paid the model . . . do you usually pay your models before the shoot?
The releases I have always used have the wording of "For consideration received, I hereby grant . . . ."
A small difference . . . it might be nothing, or it might mean a lot . . . any lawyers out there want to comment ??

It's a good observation. I always get the release signed at the same time I make payment to the model - sometimes at the start and sometimes at the end of a shoot - really just depends how well I know the model and if I've worked with them before.

Baanthai wrote:
The general rule: You can’t sit in business class by paying a discounted coach fare.

Hahaha... well, I did! 
(on a return trip from your country on the Hong Kong to LA segment on Cathay Pacific)

I seem to get upgraded half the time on long-haul flights. Not sure if it's because I'm just that damn impressive or if they just feel sorry for me for some reason. Waiting for hours in airports probably brings out a look of sadness in me... Like a lost puppy!

Full rights releases are standard for internet modeling, amateur shoots, agency models working outside their agency, and of course MM models. It’s a tremendous gift to the photographer or designer. In the world of professional photographers, agency models and 3rd party clients (like a fashion designer) full rights grabs are rare. Why pay for more than you intend to use?

I agree with all of your comments. I'm specifically interested in what sort of releases photographers will have signed when booking with a larger agency and any issues they may have faced. Some of my current releases have a very limited scope - for example, one assigns full rights for me to use in my portfolio, on social media and in any books I might write or displays I might organize but not much else. The only problem seems to arise when they insist on no commercial in the release. If you write and sell a book and include their portrait that's technically commercial as you are selling a product. It's potentially a bit of a minefield hence my reaching out to others who use agency models.

Ken Marcus Studios wrote:
"For consideration already received, I hereby grant . . . . "

Already received means you have already paid the model . . . do you usually pay your models before the shoot?

The releases I have always used have the wording of "For consideration received, I hereby grant . . . ."

A small difference . . . it might be nothing, or it might mean a lot . . . any lawyers out there want to comment ??

Again, releases should be signed after shoot. I would not advise any model to sign a release prior to shoot. I would think that there is more a risk (to the document) with a prior signature than payment after signature. I would venture that most (if not all) agencies would advise their models to not sign a release prior to the completion of a shoot.

Payment at the completion of a shoot is not uncommon.

CliveStJohn wrote:
Some of my current releases have a very limited scope - for example, one assigns full rights for me to use in my portfolio, on social media and in any books I might write or displays I might organize but not much else. The only problem seems to arise when they insist on no commercial in the release. If you write and sell a book and include their portrait that's technically commercial as you are selling a product. It's potentially a bit of a minefield hence my reaching out to others who use agency models.

While it is possible that the definitions and industry standards are different in your market, but it sounds to me like you need to more fully acquaint yourself with more specific and complete definitions of things like usage, commercial, and editorial. Your illustration of a portrait within a book is editorial, not commercial. You would do well to understand the industry definitions of advertising, publicity and editorial distinctions. IF you get more into commercial shooting you should be comfortable with the scope media, territory of the release, and duration of usage.

As others have said, full-usage/full-rights releases are generally either non-starters or considerably expensive (as in 5x-10x of a regular modeling fee) with agency models. I feel like I have been preaching this as a warning to web-based photographers for years. This is a system which has been in place for far longer than I have been a professional. I would estimate that the language you quote would be rejected by any agency that I have ever used. It would be only used for freelance models.

It is most common that the usage of a photoshoot has been negotiated in advance between the photographer and agency. The model frequently comes to the photoshoot with a voucher that notes duration, rate and usage filled out in advance. In many cases, that voucher will serve as the only release for a commercial or editorial shoot. It is signed by both the model and the client/photographer at the end of the shoot. In some cases, usually arranged in advance, a model will also sign a specific model release which mirrors the rate and usage parameters of the voucher.

I have heard of photographers trying to force an enhanced or full usage release on a model when a conditional release was negotiated prior to shoot. This is a good way to burn a relationship with an agency and a reputation in general.

Bob Helm Photography wrote:
Dont know about Ireland but in the US most agencies dont want a model signing anything, that is what they have the agency for and your booking will specify the scope of the shoot. Now a modeling school may be different

Most US agencies have their models carry vouchers which outline duration, rate and usage which is signed by both model and client at the time of the shoot. Usage is usually worked out in advance of shoot between photographer/client and agency. Signed voucher serves as model release in many cases.

Ken Marcus Studios wrote:
"For consideration already received, I hereby grant . . . . "

Already received means you have already paid the model . . . do you usually pay your models before the shoot?

The releases I have always used have the wording of "For consideration received, I hereby grant . . . ."

A small difference . . . it might be nothing, or it might mean a lot . . . any lawyers out there want to comment ??

I’ve practiced law for 25 years in Los Angeles. Here’s an oversimplified explanation:

In 1st year contracts (Law School) we are taught that a contract to be valid must have 3 parts:

1. Offer
2. Acceptance
3. Consideration

Consideration can described as any “quid pro quo”. (Example: In a TFP shoot, the consideration would be the photographer giving photos to the model for modeling services rendered.) If your neighbor says he’ll mow your lawn when he mows his and you say OK-no contract has been formed because of a failure of consideration.

Issue #1: Does a modeling release need consideration? Many believe that a release is not a contract and therefore consideration is irrelevant. But if you believe the release is a contract then you’ll find the consideration in the terms of the contract, not by simply reciting the word “consideration” in the contract language.

Issue #2: When should the release be signed? As a stand-alone legal issue, it doesn’t really matter. The validity of the release probably wouldn’t be effected.  But there could be contractual disputes where when the release was signed is relevant.  I have the models sign the release after the shoot (and pay them after they sign the release.) But I also for every shoot, create a single document that has usage clauses and the release clause. (Many say don’t combine the two, but I’m here to say with sureness that it is irrelevant-you can combine a release with usage terms without diminishing their legal validity.

Bottom line: You can have a model sign a release and you pay prior to the shoot if that’s your practice. My best practice-I email the release/usage contract to the model a couple days prior to the shoot.( Most models won’t even bother to read it, but it shows I’m not springing something on them at the last moment.) Then after the shoot, I have the model first sign the contract and then I pay her.

Baanthai wrote:
Issue #2: When should the release be signed? As a stand-alone legal issue, it doesn’t really matter. The validity of the release probably wouldn’t be effected.  But there could be contractual disputes where when the release was signed is relevant.  I have the models sign the release after the shoot (and pay them after they sign the release.) But I also for every shoot, create a single document that has usage clauses and the release clause. (Many say don’t combine the two, but I’m here to say with sureness that it is irrelevant-you can combine a release with usage terms without diminishing their legal validity.

Bottom line: You can have a model sign a release and you pay prior to the shoot if that’s your practice. My best practice-I email the release/usage contract to the model a couple days prior to the shoot.( Most models won’t even bother to read it, but it shows I’m not springing something on them at the last moment.) Then after the shoot, I have the model first sign the contract and then I pay her.

It has been my experience that conditions can arise between either negotiation in advance or even arriving for a shoot and the completion of the shoot which can effect the release of the shoot. I simple example of this is going overtime on an hourly booked shoot. This applies to agency models probably more than freelance since the amount of fee/consideration is just increased. With an agency voucher the rate and total is often already written in. Overtime might, in fact, be calculated at a different (higher) rate.

What I have seen and heard from models are situations regarding nudity and explicit posing on photoshoots where photographers make verbal promises to withhold from public release a selection of images, but having a pre-signed release leaves the model without any leverage in those situations. I believe the Girls Do Porn case illustrates this which ultimately went against the photographer/producer.

I share your flow of having a release signed after the completion of the shoot. I don't have any motivations switch gears within an established shoot. And as you outline, photographers can still feel comfortable keeping some level of control over securing a valid release by paying upon receiving a signed release. That flow is so engrained with professional commercial shoots that it seems almost repetitious to describe it, yet I still get pushback from web-only photographers.

Dan Howell wrote:
What I have seen and heard from models are situations regarding nudity and explicit posing on photoshoots where photographers make verbal promises to withhold from public release a selection of images, but having a pre-signed release leaves the model without any leverage in those situations...

...I share your flow of having a release signed after the completion of the shoot. I don't have any motivations switch gears within an established shoot. And as you outline, photographers can still feel comfortable keeping some level of control over securing a valid release by paying upon receiving a signed release. That flow is so engrained with professional commercial shoots that it seems almost repetitious to describe it, yet I still get pushback from web-only photographers.

Thanks for bringing this up and making me feel like I'm not the only one out there that has a model sign a release AFTER the shoot (if it's signed at all).

The overwhelming majority of MM users are not doing photography or modeling as a profession, not even a part time profession, yet I still get the same pushback from those 'web-only' photographers that think I'm a whacko nutjob for NOT having models provide a general release. (OK, I'm a whacko nutjob, but not for the reasons I just mentioned).

The following is more for the typical MM demographic:

Once in awhile I'll organize a photo/modeling meetup event geared toward amateurs to brush up on their skills.  I could never find it in my heart to have the models provide general releases due to the fear of some horny GWC shooting an inappropriate photo and distributing it for anyone and everyone to see (as Dan mentioned in his post).  For that reason some photographers wouldn't attend.

So for the past few years I've been having the models sign a "release" which is more like an acknowledgement than a release, because it offered NOTHING MORE than if a model didn't sign a release at all!!! (I no longer provide those acknowledgment releases  either, but that's besides the point).

As previously mentioned, very few people really read those model releases much less understand what they've read and signed anyway (not just models, photographers too).  So  doing that shuts 'em up without any complaints.

I explain that that because the models are being paid there are no expectations for the photographers to provide photos to the models, but may do so if they'd like.  The photographer may also request payment from the model for those photos. 

At the same time the photographers rights are very limited and if the photographer wants to use the images the images for other purposes that they can request a release from the model.  The model may also request payment for the model release.

It seems like that combination is a hit!  The photographers and models love the idea!

Remember, most of the photographers that fall in this demographic have no intention of using images in publications or commercial usag so they get to photograph models without being nagged for photos they promised, and the models love it because they don't have to nag photographers to get photos (which are typically so bad that they're useless anyway), and in all cases there's more chance for both parties to make additional $$$ if they wish.

Baanthai wrote:
In 1st year contracts (Law School) we are taught that a contract to be valid must have 3 parts:

1. Offer
2. Acceptance
3. Consideration

Issue #1: Does a modeling release need consideration? Many believe that a release is not a contract and therefore consideration is irrelevant. But if you believe the release is a contract then you’ll find the consideration in the terms of the contract, not by simply reciting the word “consideration” in the contract language.

I know you've oversimplified it and I don't mean to split hairs but it's important to know that a model release is NOT a contract and shouldn't be considered a contract nor should it become a contract (many photographers make a HUGE mistake by attempting to do so).

It's more like permission or a license for those named in the release to use images of the model.  In that respect it's just like a deed, a will, or most licenses where the grantee doesn't have to agree, disagree, or sign the document.  If the grantee wants to do something with it they can, or they can totally do nothing with it and life will go on as normal.

A release may be incorporated into some sort of contract (ie: "production company will provide payment of $$$ to model in exchange for X days of shooting and a model release allowing the production company to use images" ...) but on it's own a release isn't a contract... and I repeat... it shouldn't be!

I'm only mentioning this because it's been discussed ad nauseum on MM and other photography forums and people still are totally confused as to what a model release really is.

SayCheeZ!  wrote:
I know you've oversimplified it and I don't mean to split hairs but it's important to know that a model release is NOT a contract and shouldn't be considered a contract nor should it become a contract (many photographers make a HUGE mistake by attempting to do so).

It's more like permission or a license for those named in the release to use images of the model.  In that respect it's just like a deed, a will, or most licenses where the grantee doesn't have to agree, disagree, or sign the document.  If the grantee wants to do something with it they can, or they can totally do nothing with it and life will go on as normal.

A release may be incorporated into some sort of contract (ie: "production company will provide payment of $$$ to model in exchange for X days of shooting and a model release allowing the production company to use images" ...) but on it's own a release isn't a contract... and I repeat... it shouldn't be!

I'm only mentioning this because it's been discussed ad nauseum on MM and other photography forums and people still are totally confused as to what a model release really is.

I’m quite agnostic about a model release being a contract or something else. (Yes, I remember at least one MM thread about this and people got quite pissy.) My legal disinterest comes from my inability to grasp the downside for a photographer if the release is deemed a contract. (But I’d be very interested to hear any hypotheticals.)

My point: “Consideration” is a contract word. As soon as a lawyer sees the word “consideration” we have a Pavlovian response of “Contract” formation. Why else would someone use this legal term if not to establish the basis for a valid contract. Therefore, if you don’t want your release to be deemed a contract then don’t make it sound like a contract.

Dan Howell wrote:

Most US agencies have their models carry vouchers which outline duration, rate and usage which is signed by both model and client at the time of the shoot. Usage is usually worked out in advance of shoot between photographer/client and agency. Signed voucher serves as model release in many cases.

Thanks for the correction as I should have stated they dont sign anything that their agency hasn't approved/provided.

Dan Howell wrote:
Again, releases should be signed after shoot. I would not advise any model to sign a release prior to shoot. I would think that there is more a risk (to the document) with a prior signature than payment after signature. I would venture that most (if not all) agencies would advise their models to not sign a release prior to the completion of a shoot.

Payment at the completion of a shoot is not uncommon.

Dan . . . I disagree with you on this.
Most every commercial assignment and magazine layouts that I've worked on have always had the releases signed BEFORE the shoot commences. These policies were strictly adhered to by Playboy, Penthouse, Muscle & Fitness and other major publications that I've worked with. It's considered standard practice in the publishing world.

The attorneys that wrote my current model release are the very same ones that did the releases for the LFP publications (Hustler & Taboo). The advice I was given was to never begin a photosession without a signed release, 2 forms of ID, and a completed 2257 form as well.  I believe that these practices have kept me out of legal trouble for many years.

Payment is usually NOT on the day of the shoot, although as you say, it's not uncommon.
A lot depends upon if the models are being paid by a publisher, a client, or the photographer.
Many time, the model (and photographer) can wait months until a magazine is actually published and on the stands before a check is issued (that's because there are different rates for how many pages the layout runs, if a cover is chosen from the shoot, and if it's a centerfold or a featured layout).

From a publisher or client's point of view, doing a shoot without a signed release beforehand could possibly result in wasting a lot of money on photography, makeup, assistants, location, and other expenses, if the model at the last minute decides that they don't want to sign a release.  Better to know that up front.

Dan Howell wrote:

It has been my experience that conditions can arise between either negotiation in advance or even arriving for a shoot and the completion of the shoot which can effect the release of the shoot. I simple example of this is going overtime on an hourly booked shoot. This applies to agency models probably more than freelance since the amount of fee/consideration is just increased. With an agency voucher the rate and total is often already written in. Overtime might, in fact, be calculated at a different (higher) rate.

What I have seen and heard from models are situations regarding nudity and explicit posing on photoshoots where photographers make verbal promises to withhold from public release a selection of images, but having a pre-signed release leaves the model without any leverage in those situations. I believe the Girls Do Porn case illustrates this which ultimately went against the photographer/producer.

I share your flow of having a release signed after the completion of the shoot. I don't have any motivations switch gears within an established shoot. And as you outline, photographers can still feel comfortable keeping some level of control over securing a valid release by paying upon receiving a signed release. That flow is so engrained with professional commercial shoots that it seems almost repetitious to describe it, yet I still get pushback from web-only photographers.

Technically, a release covers use of the model's likeness, not specific images.   

If a model fails to sign a release, the photographer can still publish the images.  He merely cannot use them in certain "commercial" contexts.   If the model chooses to pose topless and then changes her mind, the photographer doesn't need a release to make large prints to display in a gallery.

If the model is concerned that she doesn't want certain types of images to be used, she should get that agreement in writing before the shoot (i.e. photographer agrees to not release/distribute any image in which the model's bare nipple is visible").   Waiting until after the shoot, and then withholding a signature on a model release is not a professional way of dealing with this sort of issue.

Similarly, withholding a release in order to exercise editorial control over the images is not professional.  If the model wants editorial control over the images, then this should be in a contract, agreed to and signed, prior to the shoot.   

Before a celebrity sits for a shoot, they work out these details, and sign agreements before the shoot starts.  A celebrity doesn't wait until after the shoot, and then think about whether to sign a release.

Ken Marcus Studios wrote:
Dan . . . I disagree with you on this.
Most every commercial assignment and magazine layouts that I've worked on have always had the releases signed BEFORE the shoot commences. These policies were strictly adhered to by Playboy, Penthouse, Muscle & Fitness and other major publications that I've worked with. It's considered standard practice in the publishing world.

Well, I'll have to disagree with you on that. I can comfortably state that I have not participated or observed a fashion shoot for editorial, catalog or advertising assignments in 25 years of work with agency models (men, women, kids) where a model signed their voucher prior to a shoot. Please reference any supporting evidence that prior signing is a standard practice.

Dan Howell wrote:
Please reference any supporting evidence that prior signing is a standard practice.

In addition to my 56 years of operating my own Hollywood studio, servicing a full range of clients including commercial, fashion, catalog, food, editorial, and entertainment clients, I thought I'd just google the question and see what I could find in a few minutes online.
Here's what I found in about 10 minutes . . .

https://www.rocketlawyer.com/article/wh … form-cb.rl
"Professional photographers generally use a Model Release Form right at the outset of a photo shoot. After all, there is no point in going through the rigors of the shoot if the model is not going to give permission for the material to be used."

https://www.mymodelreality.com/post/model-release-form
"All release forms should be agreed upon and signed before you start shooting."

https://digital-photography-school.com/ … need-know/
"I always make sure that my clients sign the release before we start the shoot."

https://thelawtog.com/why-should-i-get-a-model-release/
"It is always best practice to get it beforehand."

https://www.shutterstock.com/blog/model … t-complete
"you should make the effort of obtaining model releases before every photo shoot"

https://expertphotography.com/photograp … ease-form/
"If photographing for commercial reasons, have your subjects fill out the form before the model’s sign.
If they say no, the photography session doesn’t take place, saving you a whole bunch of time."

If you'd like more . . . feel free to look them up yourself . . .

Ken Marcus Studios wrote:

In addition to my 56 years of operating my own Hollywood studio, servicing a full range of clients including commercial, fashion, catalog, food, editorial, and entertainment clients, I thought I'd just google the question and see what I could find in a few minutes online.
Here's what I found in about 10 minutes . . .

https://www.rocketlawyer.com/article/wh … form-cb.rl
"Professional photographers generally use a Model Release Form right at the outset of a photo shoot. After all, there is no point in going through the rigors of the shoot if the model is not going to give permission for the material to be used."

https://www.mymodelreality.com/post/model-release-form
"All release forms should be agreed upon and signed before you start shooting."

https://digital-photography-school.com/ … need-know/
"I always make sure that my clients sign the release before we start the shoot."

https://thelawtog.com/why-should-i-get-a-model-release/
"It is always best practice to get it beforehand."

https://www.shutterstock.com/blog/model … t-complete
"you should make the effort of obtaining model releases before every photo shoot"

https://expertphotography.com/photograp … ease-form/
"If photographing for commercial reasons, have your subjects fill out the form before the model’s sign.
If they say no, the photography session doesn’t take place, saving you a whole bunch of time."

If you'd like more . . . feel free to look them up yourself . . .

A lot depends on which segment of the market you are in.

For an adult shoot, the paperwork is usually handled before the shoot.  For some images you need to have the paperwork in hand before you can legally take the image (you need to properly document that the model is not a minor).

For a catalog shoot, where the model is from a reputable agency, the model release is generally part of the "voucher" that documents the hours worked.  As the hours worked may not be known ahead of time, this is generally signed after the shoot.  With a reputable agency, there is a low chance that the model will refuse to sign.   If there is an additional release, it may get signed ahead of time, or at the end of the shoot, when the voucher is signed.   Without a signed voucher, the model is not getting paid.

For a professional "test" shoot (the professional equivalent of a TFP shoot), there may be no paperwork at all.

For an amateur "TFP" shoot, it's whatever the parties decide to do.  Some photographers like to have the release signed before the shoot (they don't want to waste their time if the model won't sign it).  Some photographers wait until after the shoot, as they are under the impression that the model is releasing the "images" rather than the use of her likeness.


For a paid shoot, with non-agency models, it varies with the photographer.  If the photographer hasn't yet been burned, he may wait until after the shoot to get the paperwork signed.  Once he has been burned, he may be very careful to get everything signed in advance.

Baanthai wrote:
Bottom line: You can have a model sign a release and you pay prior to the shoot if that’s your practice. My best practice-I email the release/usage contract to the model a couple days prior to the shoot.( Most models won’t even bother to read it, but it shows I’m not springing something on them at the last moment.) Then after the shoot, I have the model first sign the contract and then I pay her.

Dan Howell wrote:
While it is possible that the definitions and industry standards are different in your market, but it sounds to me like you need to more fully acquaint yourself with more specific and complete definitions of things like usage, commercial, and editorial. Your illustration of a portrait within a book is editorial, not commercial

Many thanks for all the advice, comments and suggestions. I always prefer to discuss and sign the release before the shoot because, as has been commented previously, some models don't actually read the release until they arrive. I would say I get 70% of my releases signed before the shoot and the other 30% at the end where I know the model very well. I always send the release to the model a week or two before the agreed start date.

As for editorial vs commercial, this has little to do with my ignorance on the matter and far more to do with an incident. This was tested when I was about to release a book but one feature model said they wanted extra as this was commercial. I asked the advise of my brother in law - a barrister - who also conferred with a colleague experienced in this area.

I was told it was a grey area as the book was promoting my services so was likely commercial and advised I pay more to get a commercial release from the model. The model wanted more than I would have earned from the book, plus other models were also included with similar agreements, so I cancelled publication. I have never used any of that material anywhere.

richardnyc wrote:
For what it’s worth; I’ve shot fashion in NYC for 40 years and always the model release mine or the agencies release is signed after the shoot.
I never questioned it.  Perhaps the differences are glamour / body shoots vs fashion shoots and or West coast vs East coast ?
Does ASMP state a protocol ?

Was the release a separate document, or part of the agency "voucher" that documented the hours for which the model would be paid?  Vouchers are usually filled out after the shoot in case the shoot runs long, and the model should be paid for those additional hours.

If you are shooting anything that might be considered porn, you may legally be required to fill out paperwork prior to the shoot to document that the model is over 18.   As long as you must do some of the paperwork prior to shooting, you may as well do all of it.

CliveStJohn wrote:
The model wanted more than I would have earned from the book, plus other models were also included with similar agreements, so I cancelled publication. I have never used any of that material anywhere.

Some Questions for Clive . . .

Was the model paid for the shoot?
Did the model pay you for the shoot?
Was it a trade shoot?
Is the model using the images for anything (self promotion, portfolio, publicity) ?

Are you aware of your rights as the copyright holder under the International Berne Convention ?

It's a shame that you just dropped the publication of your book after spending considerable time creating it, just because a model scared you off with an unreasonable demand . . . Perhaps, she owes you money for her use of your photos !

Ken Marcus Studios wrote:
Are you aware of your rights as the copyright holder under the International Berne Convention ?

1.  Nobody has any rights under the Berne Convention.  It is a treaty which binds signatories to make their copyright law consistent with its principles, but the Convention itself confers no rights on anyone.

As it happens, countries have interpreted and implemented the Berne Convention requirements in various ways.  As an example, the Convention prohibits nations from requiring that authors register their works to get full copyright protection.  The US requires it anyway.  I don't know what the implementing laws in Ireland are.

And it doesn't matter.

2.  His question has nothing to do with copyright.  Copyright does not confer the right to anyone to do anything.  It is an "exclusionary" law.  That is, it excludes other people from doing things that the author may have the right to do (for other reasons).  It does not expand anyone's rights; it simply limits some rights for some people which would otherwise exist.

3.  Copyright law (presumably in Ireland, but it seems none of us commenting here know for sure) does not preempt other aspects of law that are at issue here.  The fact that the author of a photo "has the exclusive right" to publish it under copyright law does not mean he has the right to publish it under privacy or publicity law.  And that is what model releases are all about.  Having the copyright (or a license, or other form of authority under copyright law) is a necessary but not sufficient legal authority to publish something.

Ken Marcus Studios wrote:
It's a shame that you just dropped the publication of your book after spending considerable time creating it, just because a model scared you off with an unreasonable demand . . .

I agree.

Baanthai wrote:
But I also for every shoot, create a single document that has usage clauses and the release clause. (Many say don’t combine the two, but I’m here to say with sureness that it is irrelevant-you can combine a release with usage terms without diminishing their legal validity.

Let me offer a counterpoint.

I agree that the two issues can be covered in the same document, and they are just as valid as they would be if they were separate documents.  That said - perhaps it is my agency background showing - I don't think it is good policy.

1.  Absent language to the contrary, there could be a severability issue.  If the "release" portion, or the "usage" portion of the document is held invalid for some reason, does that also invalidate the other part?  I suspect there will be different answers to that based on circumstances and verbiage.  Regardless of what the answer is, I don't think it is good policy to take the chance when it is so easily avoided by using separate documents.

2.  Some publications (or, I suppose, commercial clients) ask to see the release prior to their use of your pictures.  Telling them in that release that the model has (and has probably used) the right to put those pictures on her Onlyfans and personal fetish website does not encourage editors to accept photos for publication.

3.  There are cases where the existence of a written usage license acts to the detriment of the model.  I have encountered some.  My personal policy is much more liberal than most photographers.  When I give a model pictures, she is free to use them anywhere she wants, and I say so.  As you know, for non-exclusive usage licenses the permission need not be in writing.  There have been some cases where a model has made use of an image in an unwise way (submitting to one of these rights-grab contests, for example) and the recipient has claimed expansive rights to use the pictures.  But the model cannot grant rights she doesn't have, and I have been able in some of those cases to claw it back by informing the miscreant that the model did not have the rights, so they don't either.  Putting expansive usage rights in a release form and giving the model a copy makes that less likely to succeed.

Emeritus wrote:
As is usually true in cases like this, nobody responding is competent to say what Irish or EU law and practice is, so very little of the advice given can be relied on to apply to your situation.

Those responding are discussing US law – and law respecting releases is a matter of individual states, not federal law – and those states vary widely.  Again, even Americans relying on the statements here must do so with caution.

In the USA there are multiple reasons for getting a release. The most common has to do with various state laws that give a person some control over the use of their likeness for commercial purposes.

However, this is not the only reason to get a release.  For instance, if you are taking boudoir photos, the release documents that the model had no expectation of privacy.

A release may also give permission to paint the model in a false light.   Perhaps you want to publish the images of the model along with a story that suggests she might be a woman of lose morals.  If she is not, you need her permission to falsely imply that she is.

Emeritus wrote:
Let me give you my observations, based on 52 years as a photographer, and five years as the owner and general manager of a commercial print modeling agency in New York City.

1.     Releases need not be contracts, at least in New York and some other states.  That said, they can be contracts, and in my experience the vast majority of those actually used are written as contracts.  So those releases are, in fact, contracts.  It is, in my experience, quite rare for a release not to be a contract.

2.    “My legal disinterest comes from my inability to grasp the downside for a photographer if the release is deemed a contract. (But I’d be very interested to hear any hypotheticals.)”  I have seen two proffered reasons why it is sometimes preferable not to make the release a contract.  One is the possibility of “failure – or inadequacy – of consideration”.  The other is rather narrow.  I can’t locate a citation to the case, but I do recall an instance were a production company was sued by a minor for using her likeness.  Under that state law a minor cannot enter into a contract, so the “release” was claimed to be invalid.  However, the form used by the company was a simple permission statement, not a contract, and the federal court reviewing it decided that the prohibition in state law did not extend to non-contractual consent.  They upheld the release.

You need to remember that Florida is a crazy state.  In Florida there can be an advantage to a release that is not structured as a contract.

It turns out that under Florida law, a contract signed by a minor is generally not enforceable.  However that law does not apply to documents that are not contracts.  If the model is 17, and signs a release that's a contract, it isn't enforceable. However, if the release is not a contract, and the model is 17, she may very well be able to sign a valid release.

Emeritus wrote:
3.    “Consideration” does not mean “money”.  It can be something intangible (like the photographer donating his time to take pictures of a model) or a promise of some act (including payment, or delivery of pictures) in the future.  If there is a binding agreement to pay a model at some future time (as is typical in agency modeling) that suffices as “consideration received.”

4.    In the 5+ years I owned my agency I recall 12 times that a commercial client sent a release over for review and signature prior to the shoot.  In all of the many hundreds of jobs we booked, the voucher (and perhaps an approved addendum or release) was signed by the model after the shoot.  “Industry standard practice” depends on what segment of the industry (if any) you are involved in.  Note:  the agency signature prior was necessary, because New York agency vouchers all contain a clause invalidating any purported release not signed by the agency.

5.    I have no idea what a “large agency” would require in Dublin, or if there even are any large agencies in Dublin.  Things calling themselves model agencies do all manner of stuff in all manner of ways.  Ask them and see what they say.

Michael Fryd wrote:
You need to remember that Florida is a crazy state.  In Florida there can be an advantage to a release that is not structured as a contract.

It turns out that under Florida law, a contract signed by a minor is generally not enforceable.  However that law does not apply to documents that are not contracts.  If the model is 17, and signs a release that's a contract, it isn't enforceable. However, if the release is not a contract, and the model is 17, she may very well be able to sign a valid release.

Great! I have no problem structuring a release to NOT appear as a contract. (How about for starters putting in big bold print "This is NOT a contract". I'm serious.)

Michael, concerning the above quote I underlined, is there any authority to support your statement? When I say that to a judge and she responds 'what's your authority?', what do I say? I need citations to case law or statutory law.

Baanthai wrote:

Great! I have no problem structuring a release to NOT appear as a contract. (How about for starters putting in big bold print "This is NOT a contract". I'm serious.)

Michael, concerning the above quote I underlined, is there any authority to support your statement? When I say that to a judge and she responds 'what's your authority?', what do I say? I need citations to case law or statutory law.

Unfortunately, I don't have the citation handy.  It may take me awhile to dig it up.


Disclaimer: I am not an attorney, and I am not giving legal advice. For reliable legal advice, consult an attorney.

Ken Marcus Studios wrote:
Some Questions for Clive . . .
Was the model paid for the shoot?
Did the model pay you for the shoot?
Was it a trade shoot?
Is the model using the images for anything (self promotion, portfolio, publicity) ?
Are you aware of your rights as the copyright holder under the International Berne Convention ?
It's a shame that you just dropped the publication of your book after spending considerable time creating it, just because a model scared you off with an unreasonable demand . . . Perhaps, she owes you money for her use of your photos !

Good questions... The model was paid €100 ($125-ish) per hour for four hours plus travel costs (total around €500) under a non-commercial release. Before asking legal advice under EU law I was told it's a grey area if a book promoting your work is commercial or editorial. Basically it's up to a judge. I advised the model if I couldn't use the images then neither could she (I usually give a few to the model as a courtesy even if she's being paid) so she had to take them down.  I took the philosophical road and consider it a learning experience.

Michael Fryd wrote:
Unfortunately, I don't have the citation handy.  It may take me awhile to dig it up.


Disclaimer: I am not an attorney, and I am not giving legal advice. For reliable legal advice, consult an attorney.

I am an attorney who has 25 years of litigation experience in Los Angeles. A court asking an attorney for his legal authority for a legal claim is about as basic as you can get. (In real life, my legal authority will be contained in my law and motion work that will be sitting in front of the judge on the bench at the hearing.)

You have a legal theory, but are unable to articulate its authority. For instance, in California your theory that a contract signed by a minor will fail but the release won’t is dead on arrival. Cal. Civil Code 3344 (the statute that codifies a likeness release) doesn’t allow a minor to sign a release. So the release fails regardless of the contract.

Say Cheez and Emeritus raise valid concerns about a release in the context of a contract. But without state legal authority that says a release is not a contract, you’re in for a tough court appearance. Courts don’t want to hear your legal theories. They want legal authority in the form of binding case law or statutes.

Rob Photosby wrote:
but you [Clive St. John] really need to ask your question of Irish lawyers and Irish photographers.

Or better yet, ask the booker(s) from the Dublin agencies he is interested in working with. That is how this whole thread started. Simple:  After discussing the use of the photos, just ask “what about the release?” That should be an easy question for the agency.

Baanthai wrote:
Or better yet, ask the booker(s) from the Dublin agencies he is interested in working with. That is how this whole thread started. Simple:  After discussing the use of the photos, just ask “what about the release?” That should be an easy question for the agency.

Bingo!  Right answer.

Perhaps I can help with some legal citations on the other issues.  My memory is imperfect, and I suspect that although the fact pattern isn't quite what I recalled, the case I referred to about a minor and a non-contract release is the same one Mr. Fryd is referring to.  It is specific to Florida law.  As you say, some other states explicitly rule out such an outcome.

The case is Lane v. MRA Holdings, LLC https://law.justia.com/cases/federal/di … 5/2440524/

It was summarized in a Georgia case as relevant to a similar case there.  The fact pattern was a little different, and the outcome different. But the federal district court, unable to decide what the law of Georgia was, certified several questions to the Georgia Supreme Court.  That court declined to say whether or not a minor could give permission for use of her images, as the court in Florida had ruled.  So it is an open question.  Bullard v. MRA Holding, LLC https://law.justia.com/cases/georgia/su … q2087.html 

On the question of whether a release is a contract or not, that is a matter of (at least) two issues:  the construction of the release, and relevant state law.  As I noted above, in my experience the vast majority of model releases actually in use are constructed as contracts, whether intentionally or not.  However, it is possible to construct one that is not a contract in some states, such as New York.  Andretti v.Rolex Watch U.S.A., Inc.  56 N.Y.2d 284 (N.Y. 1982)

In other states, releases are contracts as a matter of law.  An example is Texas: Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997).  “However, a release is a contract, and like any other contract, is subject to avoidance on grounds such as fraud or mistake. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990); Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 236-37 (1957).”  That case was cited in a model release case as dispositive of that issue:  Topheavy Studios, Inc. and Gathering of Developers, Inc., Appellants NO. 03-05-00022-CV

Emeritus wrote:
Perhaps I can help with some legal citations on the other issues.  My memory is imperfect, and I suspect that although the fact pattern isn't quite what I recalled, the case I referred to about a minor and a non-contract release is the same one Mr. Fryd is referring to.  It is specific to Florida law.  As you say, some other states explicitly rule out such an outcome.

The case is Lane v. MRA Holdings, LLC https://law.justia.com/cases/federal/di … 5/2440524/

It was summarized in a Georgia case as relevant to a similar case there.  The fact pattern was a little different, and the outcome different. But the federal district court, unable to decide what the law of Georgia was, certified several questions to the Georgia Supreme Court.  That court declined to say whether or not a minor could give permission for use of her images, as the court in Florida had ruled.  So it is an open question.  Bullard v. MRA Holding, LLC https://law.justia.com/cases/georgia/su … q2087.html 

On the question of whether a release is a contract or not, that is a matter of (at least) two issues:  the construction of the release, and relevant state law.  As I noted above, in my experience the vast majority of model releases actually in use are constructed as contracts, whether intentionally or not.  However, it is possible to construct one that is not a contract in some states, such as New York.  Andretti v.Rolex Watch U.S.A., Inc.  56 N.Y.2d 284 (N.Y. 1982)

In other states, releases are contracts as a matter of law.  An example is Texas: Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997).  “However, a release is a contract, and like any other contract, is subject to avoidance on grounds such as fraud or mistake. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990); Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 236-37 (1957).”  That case was cited in a model release case as dispositive of that issue:  Topheavy Studios, Inc. and Gathering of Developers, Inc., Appellants NO. 03-05-00022-CV

Thank you for the authorities. (On a side note. When a lawyer or judge ask for your legal authority, it is not a hostile question. It’s a question were trained to ask and respond to.

Girls Gone Wild! (MRA Holdings is the video production company for Girls Gone Wild.) What ever happened to Joe Frances? Is he still hiding out in Mexico?

1. Lane v. MRA Holdings.
The case can certainly be cited for the proposition that in FL, a minor can release her likeness rights. But if the release of rights involves compensation then a minor cannot release her rights. The court also discusses the release of publicity rights done without compensation. (No consideration?) That would indicate a release is not a contract, although the Court never explicitly states that.

The Lane Court also doesn’t say this, but you could claim pursuant to this case that generally a minor can’t enter a contract in Florida. But a minor can release their likeness rights if not for compensation. Therefore a release is not a contract. (Caveat: Before making this argument, you would need to do much more research.)

2. Bullard v. MRA Holdngs:
This case represents the exact opposite about how a photographer or videographer should do business. There are many holdings in the case but a main one is that merely consenting to be videotaped, is not a waiver of your publicity rights. By allowing yourself to be photographed, you do not grant the photographer an implied waiver of your likeness rights. The Court treated as moot the issue of a minor waiving her privacy rights.

I read about several other Girls Gone Wild lawsuits involving minors. Surprisingly the minors generally lost their cases as in the Lane case. Bullard was the exception. Juries/Courts did not like these underage plaintiffs and felt they knew exactly what they were getting into.

My legal take-away: Always conduct a photo shoot under a written contract, and alway get a release in writing. (One plaintiff sued Joe Frances claiming she never waived any rights, but Joe F had videotaped her release. Case dismissed.) Legally you aren’t mandated to have a written modeling contract and many states allow oral likeness waivers.

I believe the best way for a photographer to protect themselves against a scenario of a modeling contract that fails and then like a domino, brings down the likeness waiver is to make sure the contract is solid. Offer-Acceptance-Consideration. Get everything in writing. It’s when we cut corners and don’t follow our best practices that problems ensue.

Baanthai wrote:
Girls Gone Wild! (MRA Holdings is the video production company for Girls Gone Wild.) What ever happened to Joe Frances? Is he still hiding out in Mexico?

It would appear so.  https://people.com/home/kim-kardashian- … ico-villa/