TXPhotog wrote:


However, on doing a bit of research, it turns out that the Shields ruling depended on two aspects of New York law that are common to only two other states:

Which are? 

TXPhotog wrote:
Sorry, I inadvertently posted the OP before I was done writing it.  I have completed it now.

Please, can we restrict comments in this thread to people who have an in-depth knowledge of the subject, and avoid "here is what I do" comments and the like.

My ex Lawyer said that it was very important to be able to prove the intent of both parties invloved. She said to get the parents to sign, and one of them should be at the shoot. She also said that I should get the model and parents right thumb print on the release, in case the model had got some one to act as her/his parents.

TXPhotog wrote:
Please, can we restrict comments in this thread to people who have an in-depth knowledge of the subject, and avoid "here is what I do" comments and the like.

Since this is a photographers' forum you will get mostly "here is what I do" comments. This subject comes up every second day and the discussions are pretty much the same. I think it's better to discuss this subject in a "legal" forum or even better to talk to a lawyer.

Photography by  Roy wrote:
Since this is a photographers' forum you will get mostly "here is what I do" comments. This subject comes up every second day and the discussions are pretty much the same. I think it's better to discuss this subject in a "legal" forum or even better to talk to a lawyer.

Yes, I know we mostly get "here is what I do" comments, even though they are rarely helpful

This subject - the limitations on releases signed by minors - has not come up in any detailed way (other than photographers saying things like "minors can't sign releases", which is both false and unhelpful to this question) in my entire time on MM.  If you can find a thread that addresses it, I would be grateful. 

There is no "legal" forum here.  What there is, is forums on which legal issues get discussed all the time, and often by people who have no idea what they are talking about.  The attempt in this thread is to solicit advice from people who do know about these things - including the many lawyers who post here.

Photography by  Roy wrote:
I think you should be better off talking to a "real" lawyer than getting comments from people who claim to an "expert" in this matter.

So the request for real lawyers - of whom we have many on the forums - to participate, and the request for only people who actually know about the subject (which one might think would include "real lawyers") has no effect on you.  You are going to stick to "talk to a real lawyer" anyway.

Why is it that lawyers who participate here aren't good enough for you?

Photography by  Roy wrote:
I think you should be better off talking to a "real" lawyer than getting comments from people who claim to an "expert" in this matter.

In any case I appreciate being made aware of the complexity of the issue - hopefully some folks who actually know something can fill in a few corners.

TXPhotog wrote:
Since you are in Tennessee, I assume that is the state your lawyer was referring to.  Tennessee does provide by statute for a parent to sign for a child in the right of publicity law.  However, for purposes of the other questions I was asking, it is an "uninteresting" state, because they seem to have recognized a common law right of privacy, but not actually heard many cases on it.  Those they have heard have pretty much all rejected such rights based on the facts brought to the court.

I do not know of any cases that have been tested in Tennessee's court system.  On over eighteen models, she said to get the releases signed after the shoot, not before. 

The lawyer went to work for the state not long after advising me. She was one of my models in 2000.

Another thing about Tennessee is that it is a legal entrapment state. A deputy  sheriff can sell drugs to someone then arrest them for buying and having drugs.   It would be easy for them to set up photographers that work with under age models.

Marvin Dockery wrote:
Another thing about Tennessee is that it is a legal entrapment state. A deputy  sheriff can sell drugs to someone then arrest them for buying and having drugs.   It would be easy for them to set up photographers that work with under age models.

There is nothing illegal about working with underage models.  I'm just trying to find out what the limitations are on the validity of a release when working with them.

TXPhotog wrote:

There is nothing illegal about working with underage models.  I'm just trying to find out what the limitations are on the validity of a release when working with them.

I should have said, "shooting adult content of under age models".  Jock Sturges proved in Tennessee, and several other states, that non sexual nudes of under age models was legal.

TXPhotog wrote:
One of our moderators has asked that I and others get involved in writing what amount to tutorials on the issue of model releases, since to much nonsense gets written about them.  A countervailing view, often expressed by some of the lawyers here, is that such things should come from a lawyer.  Although from time to time I have taken issue with specific lawyers on that point, I recognize that it has some legitimacy.  I solicit their involvement in the questions below.

Thank you for your willingness to undertake such complex and convoluted subjects as model releases and thier respective statutory and interpretive meanings; State to State, for all to benefit.

I applaud your patience and professionalism in response to commentary from the general membership.

My hope is you obtain the requested participation from those members eminently qualified to provide valuable input, so the remainder of us may learn more about our collective use of model releases, and the related issues of privacy, publicity, minor, and parental rights.

Michael McGowan wrote:
I have no idea whether he's right or wrong, but a lawyer here told me a couple of years ago that it wouldn't much matter if I got a release from a 17-year-old's parents, because the model could void it as soon as he or she turned 18.

That would be true in some states, although in most where it applies, the release will stand unless affirmatively rescinded by the model within a certain period after turning eighteen.  Also, rescission is not retroactive, meaning that rescission would be effective upon notice and only relate to future publication.

Bear in mind though, this is very much state dependent.  It is true in some, but not all states.

Laurence Moan wrote:
What are California and Florida?

two models

ei Total Productions wrote:
I haven't done a lot of research on this issue but it does become quite complex.  As an example, I don't think that the Florida court found that a minor could execute a release if there was no consideration involved, I believe they found that a minor could give consent to use their likeness if no consideration was involved.   Correct me if I am wrong, but my recollection was that they specifically used the word "consent" tied to the absence of consideration.

. . .

You and I have had this conversation before that we have to be careful when interchanging the words "release" and "Consent."  A release is a waiver, which in some cases, can only be given with consideration.  Consent, on the other hand, is an affirmative granting of permission, rather than a promise not to sue.  I believe that there is a different legal affect.

You and I have had that conversation, but most others, including the lawyers, have not.  I'm aware of the distinction, but chose in this case to use the "industry standard" term, even though you and I know that it is somewhat misleading.

Anyone who wants to respond and be more precise about it is, of course, welcome to do that.

ei Total Productions wrote:
In any event, an interesting question would be to ask if you have found any case in which a court has ever found that where consent was given, (in whatever form), consistent with right to publicity laws, that it was also not considered a waiver as to right to publicity.  Put another way, if you were to give written consent under New York Civil Rights statutes 50 and 51, has a court ever found that doing so was not also a waiver of the right to privacy with respect to that act which was consented to?

As stated, that can't happen.  The reason, as I said in the OP, is that New York is one of three states with a right of publicity statute (which they label as a right of privacy) and no common law right of privacy recognized outside the statutory right.  It could happen in California, where there is a statutory right of publicity which exists alongside a well developed common law right of privacy, and which the statute says does not conflict with common law rights.  One of the questions in my OP gets to that issue, but nobody has responded.

ei Total Productions wrote:
I am suspect that a court would allow a parent to consent to the right to publicity and then hold that they did not have the right to waive the right to privacy.

I suspect the same thing, which is why I asked the question.

But that suspicion bears on the much larger suspicion that parents in general, in most states, are not allowed to sign model releases for their children. I was hoping someone would contribute a knowledgeable response to confirm or refute that, but it hasn't happened.

TXPhotog wrote:
But that suspicion bears on the much larger suspicion that parents in general, in most states, are not allowed to sign model releases for their children. I was hoping someone would contribute a knowledgeable response to confirm or refute that, but it hasn't happened.

I haven't ever done the research and don't have the time so I am curious how this will shake out. 

I would say this, from a logical standpoint, if a parent can't sign the release and the child can't sign the release, then we could never have minor appear in any movie, advertisement or magazine.  It happens all the time.

I wonder what they know that you don't?  There is a missing piece here.

ei Total Productions wrote:
I haven't ever done the research and don't have the time so I am curious how this will shake out. 

I would say this, from a logical standpoint, if a parent can't sign the release and the child can't sign the release, then we could never have minor appear in any movie, advertisement or magazine.  It happens all the time.

I wonder what they know that you don't?  There is a missing piece here.

There are lots of pieces missing here.  I don't claim to know the answers, but I'm concerned about them.

The movie issue can, perhaps, be explained by the fact that minors are generally held to employment contracts - that's a special exception carved out in the common law.  A release incorporated into an employment contract, coupled with the 3344 statutory provision allowing parents to waive right of publicity claims for their children, may be all that is needed.  But that wouldn't apply to a typical model release, especially outside states like California.

TXPhotog wrote:
There are lots of pieces missing here.  I don't claim to know the answers, but I'm concerned about them.

I don't know the answer either.  I am just musing on the question as well.

TeddyRay wrote:
Firstly, I'm no attorney, but from my understanding, no minor under the age of 16 can legally sign into a contract or consent to anything without written parental consent.

I'm pretty sure that is not true.  If you have case law or some authoritative source for it, I'd like to see it.

TeddyRay wrote:
Firstly, I'm no attorney, but from my understanding, no minor under the age of 16 can legally sign into a contract or consent to anything without written parental consent. However, the laws concerning consent and a minor over the age of 16 are somewhat different in context.

I'm pretty sure you're incorrect, unless your state has enacted statutes on the matter.  I've never heard of 16 being used as an age of consent in contracts.  Generally, there are situations where a contract with a minor can be absolutely binding.  I haven't been able to figure out how to apply any of those exceptions to Roger's question though.

Although, to be fair, I haven't spent much time on it either.

TeddyRay wrote:
I'm not an attorney and I stated so. I was involved to a degree in a case as stated where the DA and my attorney informed me personally that a minor under 16 cannot legally consent to anything. Weather it's pertinent to your question, I dunno. It does occur to me though that if a minor under 16 cannot legally consent to matters other than photography and or copyrights then those same consent laws would be relevant to matters concerning copyright and release forms, but I may very well be wrong as you claim.

I'm not looking to argue here, I'm simply stating what I do know concerning consent and under 16 due to legal matters I was personally involved with concerning a close relative as I stated previously. Lucky for my relatives sake the state dropped the charges.

This sounds like criminal law, not civil.  "Age of consent" for, say, sexual activity varies by state, but that has nothing to do with the ability of a person to consent to use of their pictures by a photographer or client.

ei Total Productions wrote:
So have we reached a consensus yet?  Can a parent sign a model release for their minor child?  I have my opinion, I am curious what others have decided based on this thread.

A child can not enter into any contact anywhere unless emancipated. Only an agent, attorney, court or a parent can enter into a contract on behalf of the child.

SW Hanna - So Cal wrote:
A child can not enter into any contact anywhere unless emancipated. Only an agent, attorney, court or a parent can enter into a contract on behalf of the child.

This is false.

1.  Certain contracts - those for "necessities" - not only can be entered into by minors, but are not voidable by them.

2.  Most other contracts can be entered into by minors, but may be voidable.  That does not make the contract invalid at the outset, and may never make it invalid.

3.  Certain contracts cannot be entered into by a parent on a child's behalf, in many jurisdictions.  Those which prospectively release someone from damages caused by negligence which affect a child, for instance.

We have been trying to parse through the real limitations on model releases by minors.  Claiming that "minors cannot enter into any contract" does not advance that purpose.

TXPhotog wrote:
This is false.

1.  Certain contracts - those for "necessities" - not only can be entered into by minors, but are not voidable by them.

2.  Most other contracts can be entered into by minors, but may be voidable.  That does not make the contract invalid at the outset, and may never make it invalid.

3.  Certain contracts cannot be entered into by a parent on a child's behalf, in many jurisdictions.  Those which prospectively release someone from damages caused by negligence which affect a child, for instance.

We have been trying to parse through the real limitations on model releases by minors.  Claiming that "minors cannot enter into any contract" does not advance that purpose.

Let me rephrase to clarify to rebut your statements, a minor can in fact enter into a contract, but does not have to maintain the contract as it is non-enforcible per the The Child Care Act. The age of Majority is 18 years according to the Births and Deaths Registration Amendment Act. A minor who enters into a contract without the consent of the parents or guardian does not have to keep to the contract. But, if the minor says he or she is older than 21, then the person who entered into the contract with the minor can sue for damages. The Child Care Act will soon be amended so that the age of majority will drop from 21 to 18 years.

So to make it simple - Anyone can make a contract; but if you are a minor (under 18 years of age), the Child Care Act states that most contracts you make are "subject to disaffirmance." This means that while you are under 18 and for a reasonable time thereafter, you may be able to avoid any obligation created by the contract.