Models Turn Against Photographers After Stock Sales

- - Working

These two model release related news stories landed on my desk last week. In both, the model is upset after seeing their picture used and even though they signed a release they want to go after the photographer because they didn’t consent to the use.

I asked Carolyn E. Wright the Photo Attorney, if the models have a case. She replied that “If the model releases signed in those cases are all-encompassing like this one: http://asmp.org/tutorials/adults-model-release.html, then the model’s don’t have a legal complaint. The best practice is for photographers or ad agencies to clear the specific uses with the models when the uses might be controversial to avoid these types of complaints.”

They can make a stink about it on fox news, but if the release is solid they’ve got nothing in a court of law.

There Are 45 Comments On This Article.

  1. Funny how totally wrong “Joey” is. It’s like he’s not experienced in the subject at all, but just pulling things from the ‘lawyer playbook’. Mark is correct – there are limits, and “morally” we may not like the ad, but in all likelihood it is within the rights released by the MR.

    • A Realist or a Cynic

      @Cynthia Wood, That’s what is amazing. Can you frivolously sue and hope for settlement? Sure. Can you argue unusual defamation? Depends on the wording of the release, I would imagine. Yet this guy’s general statements are so off base that he gives lawyers a bad name and will probably create more frivolous lawsuits. He pretty much says stock photography is illegal and no one can advertise something unless every aspect of the commercial is true. Well, he should come check out the coffee shop at the corner – what are the chances I would live near the World’s Best Cup of Joe?

  2. Ugh, this is such a difficult position for photographers. Yes model releases grant us the ability to resell an image for use in totally different context but we should dig deep within ourselves to determine if the money is worth it. If I don’t believe the subject would want to be seen in this manner than I turn the offer down. Plus the fact that we have model releases we then have the ability to contact that person and ask for their opinion on being shown in this new setting, and also give them a share of the income as a modeling fee if we want to really be moral.

    • @Naomi,

      Photographers selling stock through a stock house such as Corbis wouldn’t be contacted about the sale or the use, they would get a cheque in the mail some time after the fact.

      If the firefighter was still modeling or in a different occupation I would think that he wouldn’t be too concerned about the portrayal. Considering his situation now, I can completely sympathize with his predicament but I don’t think he has much to say legally about it.

      The mother of the child may have some say as she was not paid, unless the “valuable consideration” was the prints/images given in exchange for the photo session.

      • @Victor John Penner, Good point about stock agency, guess it’s because I’m contacted directly for usage of my images.

        However I don’t think it matters what occupation the model goes into afterwards, the law firm is blatantly lying in it’s campaign portraying that THIS firefighter is a WTC survivor. I have issue as I’m sure most people do with false advertising.

        • @Naomi, The advertisement has a disclaimer that it is an “actor portrayal” so it is not “blatantly lying”, it is fully disclosing.

          Personally I find it offensive, but I don’t think it is illegal.

          • @Victor John Penner, Not illegal, agreed, but wouldn’t personally trust a lawyer with such lack of morals ; ) No better than your garden variety ambulance chaser.

    • R..BROWN PHOTOGRAPHY

      @Naomi,

      I AGREE with you Naomi…..we have a moral responsibility to the model to make sure they are comfortable with what we want to do with said images and if we make any money from said images 10% should at least go to the model

      • @R..BROWN PHOTOGRAPHY,

        The model posed for a stock photography shoot. He was paid and signed a release.

        This is generally how the stock photography industry works. Do you think that every time an image is bought that the talent is contacted for consent? They got their payment up front, should the model give their payment back if the image never sells?

        • @Victor John Penner, A: That was not what he was saying. Just paying someone does not make something moral. Telling your subject before they sign the release that the images could be used in a multitude of scenarios is – including ones they may not feel comfortable being in. From there you adjust the release accordingly (including the suggested 10% which is commonplace albeit more like 3-5%) – which leads to B: it is not generally how the stock industry works. Agencies usually have sensitive issue guidelines where they will contact those involved (generally photographer – who one would hope would contact the talent) if an end client is deemed to be using the image within a sensitive area. ie. politics, religion, certain pharma etc. Because even if it is within their right to use the image thanks to the release it is not in their best interest to have to legally fight every challenge. For we all know lawyers make a sweet living off of things like this.

          • @myles,

            If releases aren’t legally binding then there is NO market for stock photography. I will presume that the model was an adult, that he knew he would be portrayed as a fireman (he is wearing the gear) and that he was paid and signed the release. It is not up to the photographer to contact the talent every time there is a sale to see if they are OK with the use.

            There are releases that have restrictions and cover areas like you mention, but as I suggested earlier if he became a plumber instead of a fireman this wouldn’t be in the news.

            Moral? I am not defending the Law Firm but there is a disclaimer on the ad, and I bet you they have people jumping in on the lawsuit, all of them firefighters and rescue people.

            • @Victor John Penner, not sure where you are coming from about legally binding releases. I never said they weren’t. And no it is not up the the photographer – did you read my reply? – I said it is a wise call to inform your model in advance that they could be used as the face if an issue they may not be comfortable with.

              Or not – spray and pray and sign you know ; )

              There are not just releases – check Masterfile for an example of the sensitive issue terms. If they flag it as a sensitive issue then they take the proper steps to protect themselves and all involved.

  3. Fact: I was sued by a model with a fully binding model release in place. They would not have won in court. However my insurance company settled with the model because it was cheaper to cut a check than to litigate. Just because you have a release does not mean that you won’t get sued.

  4. My understanding of the model’s right to sue for use after signing a standard model release basically comes down to defamation of character. In this instance the model is put in a bit of a bind, but it’s hardly defamation. I think that Mark has it correct when he uses the Cialis analogy. It can put the model in an awkward position, but legally if you’re shooting for stock you don’t really have a right to complain unless they’re defaming you.

    I sympathize with the firefighter but this is legitimate use on the part of the photographer and the designers.

  5. Jason Samuelson

    Even when there’s a complete release, totally dishonest or potentially defamatory uses are not always covered. For example, if a model in a fully-released is then used in ads for venereal disease treatment or other “sensitive” uses, the release may not cover that [mis]use.

    A famous case happened when a generic photo of a teenage girl was later used editorially in an article/pictorial portraying her as the “high school slut.”

    The law varies from state to state. Some states are more strict than others, or may favor the model more than others.

    This one’s a close call. My call, as an expert, is that the model has a case. But it’s a close one.

  6. In each of these cases, it seems to me, that the end user should have sought an additional release for these specific uses or created new images with the intended use spelled out.

    I’d be interested to know the sources of these images. Tineye anyone?
    Were they sold as micro? Were they sold through an agency/distributor or were they licensed direct by the photographer?
    Chuck

  7. Jason Samuelson

    Carolyn E. Wright the self-styled “Photo Attorney,” said, “If the model releases signed in those cases are all-encompassing…then the model’s don’t have a legal complaint.

    MS WRIGHT is either an idiot or a liar. Even a full release DOES NOT cover “defamatory” and “false light” [mis]uses, and there have been numerous cases on just that point in Wright’s own state. A leading case involved a teenage girl model, a full release, and the girl later being portrayed as a “high school slut.” The girl won. There are also a series of cases involving fully-released photos being misused to portray the girl or woman as a patient with AIDS or other V.D., and the models won. Wright is a moron, or a liar.

    —–

    Wright also said: “The best practice is for photographers or ad agencies to clear the specific uses with the models when the uses might be controversial to avoid these types of complaints.”

    MS WRIGHT is correct, and it is not only the “best practice,” but is legally correct, prudent, and ethical to specially clear such uses. Doing so has been common practice for decades.

    • @Jason Samuelson,

      This. Even with a release, typically a person retains the common right to not be viewed and portrayed in a defamatory light (with exceptions to public figures). This is why we have courts, judges and legal tests…

    • @Jason Samuelson, I think calling Ms. Wright an idiot or a liar is a bit much. It sounds like you’re a FOX fan. I see your points in the other cases, no doubt. However, in this case I just don’t see the “defamation”. Yes, either the law firm or the designers should have gone back to the model release and photographer to:

      1) Check the terms (does it state that the photo can be altered for example?)

      2) To make sure the release is strong enough to stand up to this situation

      3) As a courtesy to preserve the relationship with the photographer and their agent as well as the photographer and their model (or model agency).

      Sure, this usage is distasteful. If I were licensing this photo to the firm would I be ok with it? No, I’d ask to be indemnified because of the alterations they are making. But they never claim this model is a fireman. Just like the happy couple on their bikes in Central Park never really said “Cialis saved my marriage!”.

      To the original point though, Ms. Wright, from what I know is a well respected and experienced attorney in this field that I would want on my side should an issue like this come up. (And I’ve never even met her!)

      • @Eric,

        re: Cialis. Probably not stock shots (they have enough money, why buy stock?) and the contract with talent agency would cover all necessary bases. It’s not like those models don’t know they’re going to appear in a penis pill ad.

        • @craig, As someone that has licensed stock for over 10 years you’d be surprised. Though not Cialis there were many times where I contacted photofraphers and even model to get clearance for “sensitive subject” usage (I preferred the straightforward route of engaging the talent). I have licensed stock for herpes meds as well as mental illness PSA’s for stock houses.

    • Dan Westergren

      @Jason Samuelson,
      I believe the “leading” case you are referring to would be–Messenger v. Gruner + Jahr Printing and Publ’g, 208 F.3d 122 (2nd Cir. 2000)
      Photos from a photoshoot for YM magazine to illustrate a love crisis column said in the headline “I got trashed and had sex with three guys.”

      The girl DID NOT win.

    • @Jason Samuelson,
      I had done business with Ms. Wright and she is far from been a LIAR or a MORON. She is WELL verse on the law and hits hard for photographers.

      Next time choose your words carefully. If you are a photographer and in need of counsel then she is the bulldog for you to have next to you fighting for your rights and your creative talent. I wanted to say more but you lost me after your diatribe towards her.
      This was a paid model and the model release, if it was based on the ASMP, makes it clear, unless he was blind and dumb, that his image could had gone from been a man to a woman, a firefighter to a clown or an Einstein turned into a moron and a liar too.

      Manuello Paganelli

      http://www.ManuelloPaganelli.com
      Los Angeles California

    • MarcWPhoto

      @Jason Samuelson, She didn’t say, and wouldn’t say, that NO model could ever have a case for improper use if there was a full release. She said that THESE models don’t have cases if there was a full release. The thing to remember about lawyers is that we answer the questions we’re asked.

      I assure you that Ms. Wright is a licensed and highly competent attorney with a great deal of experience in the field. Denigrating her for what you think she said does not make you look righteous. It makes you look like, well, a moron.

  8. A business perspective, (not photography specific). If you are down to what the letter of the contract is or what a court/jury would decide there is a good chance you are in bad shape business-wise.

    You always carry the risk of being sued and there are inevitably unexpected circumstances.

    Do your best to avoid potentially risky situations, protect yourself the best you can and manage your risks, and conduct yourself with integrity and you’ll be as well off as you can be.

    Doing the “right” thing and doing the “legally allowable” thing are not always the same.

  9. What is missing here is the text of the model release. However, if it was a broad, competently written release, allowing “photoshopping,” the model has no right to argue about the use to which the image was put. A release is a release~

  10. Sounds like the little girl and her mother have more of a case if they were mislead about the intention of the original photoshoot with the modeling agency. I dunno though that seems highly unlikely.

  11. This brings to mind the Garry Gross/Brooke Shields law suit.
    Am I correct in thinking that eventually the court ruled in favor of Gross in 1983, declaring that the child did not have the right to overturn the valid model release signed by the parent?

  12. While the first case is a closer one, I have no sympathy for the mother in the second story. She admits she signed a photo release which allowed any use of her daughter’s image. She did so with the intention of generating modeling work for her daughter. End of story. Mom doesn’t like the use? She disagrees with the message? Too bad. T.S.

    There is nothing defamatory that could raise any issue of misuse and the photo was not even altered.

    If the mother thinks the photo use, which the mother specificially permitted, harmed her child, then her child has a remedy. In 12 years when the child turns 18, the child can sue her mother for allowing the use.

    • @Davidka,

      I agree with you. Still morally all photographers should have a clause or verbal handshake, which I do, on my contracts when working with non paying models saying that if any images could make money in the future then I would make the effort of finding them so they can be compensate and pay what a pro model would had received.
      I feel that if a stock image makes great money for me then the non paying model should get a piece of the pie too. Why should I get 2k-20K knowing that the only thing my model got was a couple inkjet prints. That is sick.

      That said, I also make sure that such an image is not to be use implying that the subject has or will get: Cancer, AIDS, or is a smoker, drinker or heroin user with out their written consent. YOu can also advise your photo agency of such stipulation.

      Plus, much more consideration should be taken when dealing with a minor.
      A photographer cant put a price taq to the psychological damage that could develop to such a child when they become adults due to the photographer/PAgency greed and selfishness.
      I hope that the photographer who worked, or photo agency, with that little girl can send her a sizable check for school.

      Manuello Paganelli

      http://www.ManuelloPaganelli.com
      Los Angeles California

  13. One more nail in the coffin of the Stock business, although it’s hardly a business anymore.

    I’m surprised at the number of photographer responses suggesting “weasel room” for the complainents here – a deals a deal and a release is a release, just like any other legal document. Stock Agencies are businesses and they don’t care who they piss off – just ask their photographer contributors – and like any business they don’t they don’t ask anyone who has been involved in manufacturing the product what their feelings are about a particular sale. Please, let’s be realistic here, folks.

    The fact that the majority of Stock shots languish forever without being sold and the photographer has borne the sole responsibility of bearing the costs to produce them seems to be lost on many people. The day a model takes risk with me to produce the work (yes it has happened, but not often) is the day a model has a say on where it goes afterward.

    The people in this instance, regret a decision they made and they should just chalk it up to experience and learn from it. Haven’t we all had to do that at some time? It’s called growing up.

  14. I have to say this:
    @Jason Samuelson, your words sir are uncalled for and could be considered defaming. They also indicate that you don’t think before you speak which makes you look less intelligent than you may be. What a shame.

    I think there are a couple of issues could be considered and probably already stated but worth repeating.

    First since the photographs were stock images, the photographer had little control over how they would be used. I am not slamming the agency’s that grabbed these images and altered them, but in the case of the little girl they could have contacted the mother to consult on the use of her daughter’s likeness. Yes time is money and sometimes it takes a bit more to do a job right.

    Second the guy who is a firefighter now, I think he may be looking for a moment of recognition and $$ because it could be easy $$. The people who question him are …they are over reacting with regard to the image. Simply stated, they are not taking the time to read the ad completely. It could have been someone else who was a model at the time and decided to join a branch of the military, or other agency that suffered a loss during that time. It doesn’t take away from those who lost their lives on that day.

    Fox, I like Fox, but like any other news agency they have embarrassed themselves on this one by not correctly representing the story. BOOO! BOOO again! The segment with the attorneys, they are just in it for the notoriety and $$ because they get paid for their opinion. BOOO to them too!

    As photographers we should set the record straight. It does take some consideration when we are going to use a image for a specific purpose. Is the story that is being conveyed what we can live with without the model knowing? It says a lot about an individual’s ethics.

  15. IMO, those both are sensitive issues. And in a use like this a model has to be contacted for permission even if a model release was signed.
    Usually a model release has a clause ‘not pornographic or defamatory uses’. These uses can be considered defamatory. But in the end it all depends on the release wording.

  16. In typical fox news fashion the opinions of there interviewees are not expert. The matter in question is not a question for two criminal defense attorneys. There are several other legal specialties that are pertinent such as entertainment attorneys, copywrite attorneys, and others that specialize in matters of likeness reproduction and copywrite fair use. As it stands aside from defamation a solid release gives the holder a right to criticize and lampoon at will stopping short of defamation. This is why models from top agenceies when asked to sign a release (as happened to me in Miami last week) will politely ask you to forward it to their agent. If they screw up and sign it they are signing away most of their rights (depending on the boilerplates thoroughness). Agencies such as Getty are fairly carefull about what is and isn’t a legally binding and therefore acceptable release for this exact reason. In addition if this guy was a pro and not just a craig’s list wannabe then he new that all bets are off on how a stock photo will be used. I have worked on many stock shoots and even the newbees from a real agency know the deal. The take away from this is as always the law of unintended consequences. Any legal document you sign with out legal advise from an attorney may return to bite you in the ass.

  17. Andre Friedmann

    My lawyer says anyone can threaten to sue. At any time. Over any thing. He says such threats are all about settling before trial. Fox News did the models a huge favor, adding (non-legal) clout to the models’ threat. It’ll be fascinating hearing what kind of cast-iron stomachs the photographers have.