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I got an interesting email from a fashion photographer that warrants some
discussion:
A model agency booker recently wrote to me
saying: "But if you want to use the
images for editorial use, we ask that you ask us first before agreeing to
the usages used for that magazine. In fact, all magazines require
releases...even for editorials. That's where the release will come into
play."
First, the quote that you included from the agent is a bit misleading,
though he might not be aware of it. That magazines "require" releases
doesn't mean that they "are required" to have a release for publication.
It just means that many magazines have a policy to only publish released images,
even though one isn't actually necessary.
As I will discuss, this creates more liability for them, not less. It's
also a great disservice to the industry because it perpetuates incorrect
information about how and why model releases work.
First, let's talk about context: Fashion photography is different from
grab-shooting in the street because someone is specifically asked to pose
in a controlled and staged environment, and to take specific pictures for
a specific purpose. The model is not subject to a condition where he or
she can be photographed "without being aware of it," like on the street.
Instead, the model is only willing to do it in exchange for something. For
example, money.
Now, if it were just money, that's one thing, but in professional fashion
photography, it is often the case that models also insist that you (the photographer) and your assigns (those to whom you
license the images) only use the photos for a specific purpose.
It's the phrase "..and your assigns..." that you will need to think about.
I'll bring it up again soon.
What makes this situation different insofar as model releases are
concerned is that the model has
stipulated the uses of the images—not the photographer. Thus,
the photographer is now assuming liabilities. This is atypical for most
photographers, who are used to being the ones who spell out the terms of
the model release (and ask the subject to sign it).
In this inverted photographer/model relationship (from the norm), focus is
now centered on the models themselves: they are the ones that are seeking
protection...in this case, their professional careers. They don't want
images of themselves used in ways that might compromise their modeling
relationship with particular designers, advertisers, or even editorial
relationships. They also need to control how they are portrayed in the
press to the degree that they can. In this case, if they are going to be
wearing clothing that would not bode well in publications, they would not
want those photos to be published. That's why they are eager to assure
that the photographers that take their photos are restricted in what they
can do with the images.
If the model has an agency, those agencies would (should) instruct their
clients (the models) not to attend photo sessions without requiring the
photographer (or other agents there) to sign the agency's release.
Now I get back to the quote from the above agency representative, where he
says, "for editorial use, we ask that you ask us first..." He can't
enforce that without strictly saying so in the contract the
photographer signs. That's why he says, "we ask..."
But, if he truly wants to enforce that policy of "ask first", he should
stipulate this requirement into his template model release agreement that
photographers sign. An even stronger provision is simply to state up front
that the photos "can only be used under specific conditions," such as for
a particular magazine, in a particular story, to be published on a
particular date. By definition, this would exclude all other
uses—including editorial.
Liability
Given all that, where does liability reside if the
photo ends up somewhere else that isn't covered by that agreement? What
about that editorial magazine?
Answer: it all depends on the language inside the model release.
If the photographer signs a release that lists specific uses only, and the
photo ends up in an editorial story not covered by that release, the
photographer—not the publisher—is the first in line for liability: he
violated the contractual agreement.
What about the magazine? Aren't they liable too? Yes, but only if they were assigned the images and were made aware of the restriction of use
ahead of time. That is, if they knowingly published an image in a
manner that they knew was in violation of an agreement that they are a
party to.
That's a big "if", and one that can easily be avoided.
Strictly from a legal perspective, it is in editorial publishers' best
interests to not ask for model
releases from photographers, because that would then make them aware of
restrictions that they would then have to comply with. Any lawyer will
advise clients never to assume liability of someone else's contract, even
if it looks clean as a whistle. It just wraps you into the same risk as
the photographer. This is precisely why most newspapers and other
top-flight periodicals not only never ask for model releases, they
indemnify themselves from any obligations that the photographer might have
agreed to with the subject of a photograph.
So, let's say the photos are used in an editorial article on a particular
line of clothing where the model does not have a relationship with the
designer, there could very well be many displeased parties. In this case,
the liability is not held by the magazine: it didn't violate anyone's
privacy because it didn't perform the act of taking the pictures (or pay
for it), nor has it violated publicity rights because the magazine or
article is not a paid advertisement by the designer. Assuming that the
magazine simply got a hold of the photos without agreeing to be "assigned"
the image under typical license terms, it is entitled to publish them in
an editorial context under the protection of the First Amendment.
That editorial publishers of all sorts even ask for model releases (or
property) releases is silly—they assuming more risk by doing so.
This is not the same as commercial publishers, of course. For example, if
the same image were published in association with an ad for another
product not covered by the agreement, that company would be liable for
violating the model's publicity rights, and the model could sue that
publisher for damages. The model would also sue the photographer (again, for
violating the contractual agreement), but this is separate from the
commercial publication of the image.
Remember again, this all falls under the premise that agencies and their
models only agree to only be photographed under conditions where
photographers sign releases that have language restricting the use of
images to specific publications and uses.
No (or vague) Model Releases
Without such specificity, rights of
the model and the agency begin to erode. On one extreme, there are very
open and vague release, such as the ones most photographers clip out of
books (including my
book on model releases). Most pro models won't (or shouldn't) sign
these, unless they are early in their careers and are still establishing
themselves. (Once you become more well-known, you will then have a
stronger brand that you will not only need to protect, but will also have
more opportunity to capitalize upon by commanding a higher price for
publication rights of yourself. Even editorially.)
If there's no release at all, then licensing an image to an editorial
publisher is risk-free. That is, judges would assume that anyone that
willingly sits in front of a photographer without a written release has
willingly waived his rights of privacy. (This has nothing to do with
commercial publication, however. Licensing is still permitted,
because it doesn't violate a contract. Publication is a liability
born by the publisher. For more information on this, see Model Release
Primer.)
If a subject has an issue with an editorial publication of his image, it's
usually the case that things are a bit messy. If someone were to bring a
complaint against a photographer or publication, some kind of harm must
have been done. (If no harm has been done, and no release has been signed,
it's a losing case.)
If harm has been done, and no release is signed, a judge will gather other
facts, such as an email that might have been sent beforehand saying, "Ok,
I'll do the photo session for $50 if you promise not to publish them on
your website." While a court is permitted to take this into account, it
isn't an open and shut case—the judge has to weigh the two factors
between the verbal agreement and the degree of harm that's been done. You
can imagine extremes on your own. If it's a toss-up, courts (in the USA)
generally give deference to First Amendment rights—the right to publish
over publicity rights. The hardest ones to judge are those that involve
publication rights and privacy rights.
Good luck with that.
The summary is that professional models should almost universally be
trained to provide their own model releases, but do so judiciously. If
you're too restrictive, no one will want to work with you, nor will anyone
pay you. (Remember, you have lots of competition.) Photographers don't
necessarily "need" releases to protect themselves, but those releases will
make the marketability of such images much better.
If both the model and the photographer have releases and there's a
stand-off, it's time to negotiate: find what each party "needs" from a
financial point of view. Don't worry about "liability." This misperception
that releases are there to "protect" photographers has kept many
photographers from capitalizing on their photo assets. Negotiation should
really be about the scope of publication: use, geographic, and term
(expiration time). Oh, and money. :-) Labels: dan
heller, legal, model
release
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