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How do you know you're "in the clear" w/ a model release?

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  • How do you know you're "in the clear" w/ a model release?

    You go to court.
    Regardless of what anyone tells you, the deciding rule is the court. I have found instances where two states ruled opposite on what was essentially the same claim. And it's even a bit more finicky in that there may be as many as three states that could have jurisdiction in a rights claim. Your's, the model's, and the publisher's; and they could all be somewhat different.

    I've seen all sorts of model releases; many take paragraphs stating your rights granted by copy right. That's unnecessary. What is necessary is that it is clear what rights are being given up, and why. My model release is going to look something like this:


    For valuable consideration received I _____________ grant Steven Kersting/(business name) an irrevocable, unrestricted, and transferrable right to use photographs of me for commercial purposes in any medium; and to modify said photographs as deemed suitable. I hereby release and hold harmless Steven Kersting/(business name) and his assignees from any claims related to said photographs.

    Signature/address block

    Modifications to this release:
    ___________________________________________
    ____________________________________________
    ____________________________________________

    initials


    If there needs to be a commitment on my part as to "what" the valuable consideration is (i.e. no less than three fully edited images suitable for portfolio use") that can replace the "valuable consideration" statement, or be added to the modifications of the release (and initialed by both parties)

    Almost every model release I've seen is MUCH wordier...especially the legal dept generated ones.

    A separate TOU statement/page is unnecessary unless you are giving up rights as well. In that case a simple statement in the release, or separate, will suffice. I've heard/seen people say that if they are connected then if either party breaks the TOU then the entire document/release could be found null and void...that's nonsense. Believe me, I've been sued....I've seen how it works first hand. Every statement/page/clause is part of one big contract and every piece stands on it's own. If there is only a model release, it is the contract. If there is a model release and a TOU page; together they make up the contract. A model cannot break the TOU's and thereby negate their commitment granted in the model release.

    Since they've already assigned me my TOU/ rights in the release, all this page needs to include are any rights I'm giving up.
    For simplicity sake I will be making my TOU a separate page to be delivered/included as appropriate... It may say something like:


    I Steven Kersting/business name grant ______________________ an irrevocable and unlimited right to reproduce images provided to him/her for the purpose of self promotion. No other rights are hereby granted.

    Signature block


    One of the main "tenants" of a contract is "a meeting of the minds." That means that there is a *clear and mutual* understanding/agreement between the two parties. The more specific/clear/plain/ a contract is, the more defendable it is in court. To this extent there seems to be a tendency to include a statement in the release for any "extraordinary" situations..and this makes sense. Ive seen the "in relation to AIDS" as an addition, and "Adult Materials" would make sense as well(if Hustler was a potential client). This makes sense because they have waived the right to commercial use, but not the right against "depiction in a false light;" which associating the anorexic model with aids could qualify as. These conditions could be added into the "modifications" section (and initialed by both parties).

    95% of the time a model release is pointless...it's just a hope that maybe someday you might get lucky and be able to sell the picture for commercial purposes. If that should happen you can (hopefully) negotiate the release at that time. If you have a commercial assignment, then the release should be tailored to that.

    So, how do you remain "in the clear" without going to court? Easy, be open, honest, and fair. Make sure everything is understood (i.e. your/their rights) if there is anything of possible concern. It's just good business. If someone is giving up their normal rights, get/give it in writing and make sure that's understood.
    Like I said, I've been sued...you don't want that; it's expensive even if you're right. And no amount of paperwork can "prevent" a lawsuit.
    Last edited by sk66; 01-18-2013, 04:28 AM.
    Steve
    the Photographic Academy.com
    SharpShooter Industries
    My 500px, My Flickr, My Blog

  • #2
    Originally posted by sk66 View Post
    So, how do you remain "in the clear" without going to court? Easy, be open, honest, and fair. Make sure everything is understood (i.e. your/their rights) if there is anything of possible concern. It's just good business. If someone is giving up their normal rights, get/give it in writing and make sure that's understood.
    Like I said, I've been sued...you don't want that; it's expensive even if you're right. And no amount of paperwork can "prevent" a lawsuit.
    This bit is probably the most important ^^. As long as both partied completely understand their relative TOU and how the image will be used, there should be no issues down the road!
    The K Effect - Sydney Event and Wedding Photography
    www.thekeffect.com.au
    Facebook | 500px | Zenfolio

    Nikon D600 / D7000, 35mm 1.8, 24-70mm 2.8, 70-200mm 2.8, 2 x SB-700, Pocketwizard set

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