Archive for the ‘Model & Property Releases’ Category
[by Richard Kelly]
Getting the appropriate model releases from our subjects that appear in photographs for commercial use is what a “professional” does as part of the overall practice of business.
The standard adult release says,
“…They have the irrevocable, perpetual and unrestricted right and permission to take, use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, in conjunction with my own or a fictitious name, or reproductions thereof in color or otherwise, made through any medium at his/her studios or elsewhere, and in any and all media now or hereafter known, specifically including but not limited to print media and distribution over the internet for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever. “
Would you sign this? I am not sure that I would and yet this is the adult model release that many photographers ask their subjects to sign.
As a professional photographer I have received my fair share of over reaching contracts from clients that, more or less, say the same thing. Contractual language that will save the client from having to re-negotiate additional usage or to limit liability if somehow an image is used other than the original intention. Limiting liability I understand that, but I don’t like receiving these contracts as a photographer and I don’t like to present them to my subjects in general releases.
Releases are contracts between two consenting individuals, they are negotiable and I believe that they should be reasonable both in the request and the consideration (payment or equivalent value). In my practice, if we are working on a commercial project we discuss with the client the usage for the photographs and we mirror that in the release. In most cases, the subject and any remuneration is noted in the release and I rarely have trouble receiving the necessary permissions. In non-commercial situations I will sometimes use a general release as long as they understand and agree to the terms. I have learned that a big part of getting the release is what and how you ask for the subjects consent.
I am very protective of all my subjects, in many cases I have gone back to subjects, to ask for permission that foes beyond the scope of the release. To date I have never had anyone turn down my request. I keep very detailed contact information and utilize linkedin and Plaxo to facilitate finding subjects from my past.
You can sum up my approach to model releases as the Golden Rule of Subjects, Treat your subjects the way that you want to be treated.
ASMP has a tutorial online with samples and legal resources related to releases.
Richard Kelly is a photographer and educator living in Pittsburgh. As President of ASMP, he is a progressive advocate for copyright and professionalism.
By Richard Kelly
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Posted: September 10th, 2010
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2 comments
[by Shannon Fagan]
Earlier this year, I made a real spring-cleaning. I mean a down and dirty grass-roots effort to digitally archive just about everything in my life. And, as a result, I triple-backed-up not just my image archive, but also my file cabinet. Sketchbooks, business cards, and seminar notes met old tax returns, contracts, and model/property releases. Ten years of work in lifestyle photography meant that I was now escaping a death-by-paperwork. But was I going to get caught by legal issues down the road? Would digital copies of my critical original documents be acceptable should I ever need them in a court of law? I employed the expert advice of my attorney, Robert Steckman, in New York.
Mr. Steckman advised me that scanning and “destroying” my originals was acceptable as long as I was aware of the “Best Evidence” rule. We should note that my scans were going to be high-res and easily printable: 300ppi at 100% full size, in color, and saved as PDFs.
“There is a general provision of evidence law called the “Best Evidence” rule which requires you to provide the best copy available. See http://www.yourdictionary.com/law/best-evidence-rule Under this rule, copies are accepted if an original is not available, but if the original exists, then you can’t use the copy. You need to apply the document destruction rule consistently in your practices, or else it may fail the ‘smell test’ (ex. why do you keep copies of model agreements, but not license agreements). Many people keep originals for about 6-18 months, then scan and destroy the original. If you scan a certain type of document, make sure that each and every one of those type documents are scanned. Consistency is rewarded, and any inconsistency must be explained in detail.”
I then asked, “what about later potential claims that my scanned document copies had been digitally altered?”
Mr. Steckman replied, “The Court rule is that nothing is excluded simply due to the fact that it is a copy. Original or copy, the party submitting the document always has the burden to prove its authenticity. Also keep in mind that there are different rules of evidence in different courts. Federal Courts have recently changed the rules of evidence on this issue, but every state court is different. The best evidence rule is generally applicable in all courts, state and federal, but every judge also has the discretion to rule as they see fit when these matters are at issue. The best advice is have a good reason to destroy originals, and to destroy them only according to a consistent policy (i.e. after 1 year).”
And then, I had my last question, “some of my stock agency contracts specify that I maintain an original release on file; would a digital-only copy be a violation of my contract?”
“It depends on the language of the contract, but as before, the “Best Evidence rule” would still apply in any Court. Nevertheless, if the contract contacted an absolute, indisputable clause where you made a representation you would keep the original copy, then some judges might enforce the exact terms of the agreement. Nevertheless, most judges know that people can’t keep papers forever (or at least until the statute of limitations ends on all possible claims). “
Mr. Steckman also strongly suggested that I review this article for additional discussion of how the traditional ‘best evidence rule’ works in connection with the new E-Discovery requirements in Federal Courts: http://www.law.com/jsp/article.jsp?id=1202424535933 ”
Shannon Fagan is a consultant to the industry and participant in The Founder Institute; an incubator for entrepreneurial start-ups. He has crammed his life’s work into six 1.5TB hard drives. Not one of them has yet to fail.
By Shannon Fagan
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Posted: September 9th, 2010
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2 comments
