Fashion Photog Sued By Models Parents

- - Fashion

Are you an aspiring fashion photographer who shoots tests of teen models for agencies? Do you work with fringe magazines that like to publish shocking pictures? Do you put Budweisers in their hands as props? What about having them ride a motorcycle in California without a helmet? How about scantily clothed? What about sexually suggestive poses? And do you do all this while the parents are watching and the agency says it’s cool thinking they will have your back down the road? If so, read this cautionary tale as the parents of a hot young fashion model have sued photographer Jason Lee Parry (and 3 clothing companies) for twenty eight million dollars.

The original source of their outrage is the appearance of images taken by the photographer of their then 15 year old daughter on t-shirts and other clothing from 3 different companies: Brandy and Melville, Blood Is The New Black and Urban Outfitters. The parents have hired Edward C. Greenberg to file a lawsuit against the photographer and clothing companies and in the letter to all of them (download it here) he hits the photographer like a freight train full of bricks claiming “this case appears to be literally ‘one for the books'” because of the photographers “reckless disregard of any/all applicable laws.” Oh, and according to Greenberg there is no signed model release. The very last page of that document is an email back to the lawyer where the photographer says he did not get a model release because it was a test/editorial and he thought the agency had it. He aslo admits knowing about the images going on the t-shirts and trying to negotiate a deal with the modeling agency but never hearing back from them.

In the 66 page court filing (download it here) Greenberg claims perry posed her in a sexual manner, gave her Budweisers (a crime in the state of CA), had her ride a motorcycle without a helmet (a violation of CA vehicle code) and gave or sold images for apparel that are offensive and libelous all without a model release.

Many photographers have images on their websites and in their promotional material that are not model released and while most people wouldn’t allow those images to be used commercially there’s the possibility that it could be stolen and end up on a t-shirt somewhere and you could be receiving a letter like the one Jason did.

thx to Dude for the court docs.

There Are 103 Comments On This Article.

  1. Wow poor guy. I’m sure the modeling agency handed him half those props/ideas/poses and an art director was standing behind him telling her how great the images looked. This stuff makes me want to vomit, he was just pressing the button and a modeling agency took advantage of his niceties and sold the images to the likes of Urban, ect. He probably got paid $200 dollars for this crap and this is what he gets.

  2. I think part of the problem is that magazines and clothing companies might feel they have to keep up with the edginess of movies and tv shows like “Skins.” I guess those productions have more oversight, but they certainly have underage kids drinking, taking drugs, having sex, and all kinds of things a lot worse that here. I think the lesson’s going to be that if you want to produce images like that, you have to follow the same rules.

  3. 28mil!!! hahaha Jason probably doesn’t know wether he should laugh or cry. Probably both. jeez. twisted industry we’re a part of. Let’s hope it doesn’t ricochets back in our faces like the banking system does now. I don’t believe selling illusions will work in the long run.
    Here’s a Dylan Moran rant about it: http://www.youtube.com/watch?v=tBIkT9CciBo

  4. Chris Schultz

    Wait… $28 million dollars? Seriously!? Is that a typo?

    No offense to Mr. Jason Lee Parry, but what photographer, outside the top 1%, has that kind of money sitting around?

    Our industry is the best! (sarcasm) Take that, Wall Street, banking and Washington! We’re the most frivolous.

  5. I feel very sorry for the fallen comrade, but it sounds like he was a bit of a putz. If nothing else, this case could become an extravigant lesson to aspiring professionals & emerging whippersnappers that it’s worth having an understanding of the copyright laws and the business of photography.

  6. Maybe there’s more to the story, but it sounds like Parry made one mistake after another here. I think the lawsuit is a bit absurd, but my sympathy is pretty limited – he seems to have set himself up for this. “…he did not get a model release because it was a test/editorial and he thought the agency had it.” That alone is a huge blunder in my opinion.

    • Yes a blunder, but one made daily all over the world, by people that take model agencies way of dealing with photography of their models as the only way to shoot. Hence photographers are often left holding the can.
      I think Parry should counter sue the father for being the dishonest AH he is. As I understand he was on the shoot and witnesed what was being photographed, Parry should not just defend, attack back.

  7. jessie jean

    First of all, if either the parents or the girl took a look at Jason’s website before saying yes to being photographed by him they would have gotten a good idea as to what they were getting themselves into. His work is highly irreverent and offensive to women. His taking a 15 year old girl and photographing her in the way that he did is horrendous and to say “well she is a model she came up with all the poses” is a bunch of bs. She is only 15 years old!! She is a minor!! Here is what I would like to ask Jason: would you have taken the photographs that ended up on all the t shirts if her Dad was present? If my daughter was photographed that way and then published on t shirts across the nation I would sue too…maybe not for 28 million but I’d sue.

    • wasn’t the point made at the beginning of this piece that the parents were there watching?

    • Jason messed up and as a professional should have covered his back with a release form, PERIOD! But the model’s career is over or at least until she is no longer a minor. I don’t think anyone in their right mind will hire her as long as her parents are in the picture (pun intended). So the parents, and the lawyers, will take the 28M divvy it up and spend it all before she becomes legal when all along they could have cut a deal and kept her modeling career on track and made much much more.

    • If I was a local, I would book her, just for the sole opportunity to cancell the booking and express why. Another child that needs to survive her parents.

  8. Frank Petronio

    Good photographer and relatively tame images but WTF was he thinking shooting a minor without a release and then selling the pix?

  9. This case represents a dangerous precedent. If anyone could be sued for this much from an image that was used without permission by another company – photographers would become fish in a barrel. This kind of theft is rampant, especially in the t-shirt world.

    Sure, Jason made some huge mistakes, but from the sound of his letter (still can’t believe he wrote to a lawyer without his own counsel), Urban Outfitters as well as Brandy and Melleville used the image without permission. How is it remotely possible that Jason should be liable for this? It’s insane.

    Part of me thinks that this case is purely phase 1 in a ploy to get records from the larger companies, who might not be protected, and have much deeper pockets than Jason. You can’t squeeze blood from a stone, but Urban Outfitters on the other hand….

  10. I should probably make this clearer in the post but the 28 million dollar lawsuit is against the photographer and the clothing companies including urban outfitters. I assume that number is directed more at the highly profitable clothing company and less at a fashion photographer.

  11. This shows extremely poor judgement on the part of the photographer on all levels. What possible qualities could a 15 year old provide to the overall quality of an image that an 18 year old could not?
    Every shoot that I’ve worked on were models with alcohol or cigarettes were involved there was the discussion of the models age. The client, the ad agency, the photographer all knew that the are rules as to what ages are allowed to be used in selling these products; how did this photographer not know about this?
    And with all of the talk in the last 10+ years on every photo shoot on every web forum,.. How in the world does anyone make a photograph involving a person not know that you need a model release or even consider that you may want to have one in the future?
    This is all just conman sense business stuff, that every photographer should know, regardless of how long they have been in the industry.

  12. Iain Philpott

    How are parents letting a 15 year old go to a photoshoot on her own. Is that not neglect? $28million – lets get some perspective on this. Why did it take 18months to file?
    Jason what were you thinking of ? I agree with the comment above of ‘extremely poor judgement’. But to release the images without a release was just stupid and should be a valuable lesson to all photographers that ‘no release’ means ‘no use’. On a positive note maybe clients will be more hesitant on just ‘lifting’ pictures from blogs or Google?

  13. Knowing that the images were going to a commercial product and treating the shoot like a test is the fault of the photographer. I would never do something like this.

    If he obtained a model release for this obviously commercial shoot he would likely have less problems. I feel bad but he’s obviously negligent.

  14. It may be a mute point, but…… Just for the sake of argument, and if we are going by the book here, in the second shot on skateboard holding beer, you cant see her face. To me that would make the burder of proof upon plaintiff, no? Theoretically that image is defensable.

  15. c.d.embrey

    It helps to know what we are discussing. Here’s the photo shoot on the Fashionsing site. http://www.fashionising.com/pictures/b–Hailey-Clauson-biker-babe-3584.html

    According to Wikipedia http://en.wikipedia.org/wiki/Hailey_Clauson she was signed in 2009 (14 years old), by Ford L.A. Another controversy: “… Hailey became the subject of controversy when it was found out she walked in three of the major shows: Diane von Fürstenberg, DKNY and Oscar de la Renta in New York Fashion Week being still only 15 years old, when the age limit set by the Council of Fashion Designers of America bans models below 16 for catwalk shows.”

    This could turn out to be very interesting.

      • c.d.embrey

        I don’t get your comment??? No legal advise given, no legal analysis offered, so what’s your point???

        You don’t have to be a lawyer to post links to a photo site or Wikipedia.

        The reasons I think it will be interesting to watch:
        1. According to the posted “Exhibit R” both “Blood is the New Black,” and “Jason Lee Parry” are on the neck tag.
        2. She was signed to a Major Agency at the time. This is no ModelMayhem shoot.
        3. Walking three major shows, while underage, shows that someone was making bad decisions.

          • c.d.embrey

            Sorry about that. 8-)

            Six months ago I’d have thought nothing of this comment. Recently APE has been getting comments like it was a News Group, from the early 1990s, instead of a blog. 8-0

            Once again, sorry for the misunderstanding. 8-)

  16. I find it interesting how loose and fast many photographers and companies play with model releases. There is even a minor release that includes the guardian’s signature. If you can, there’s no reason not to get a model release. What’s the worse that happens, you have two on file.

    Some of the moral claims are questionable. In California a teen can touch a Budweiser can in the presence of their guardians without it being illegal. They can also sit on motorcycles without a helmet.

  17. James Nolan

    This guy’s career is toast. Photographing a minor and then selling it to a major corporation with no model release? Bad business & complete negligence.

    • Jason Lee Parry’s probably saying or at least thinking, hey, how come you’re picking on me, Terry Richardson does this kind of stuff all the time, too, and he’s even famous for it.

        • It’s all about money.
          The agencies put up with Terry’s shenanigans because he’s a money factory for them and the models they represent.
          If a photographer like JLP asked the agency for a release, they probably wouldn’t even respond (kind of like how they didn’t respond to his email about putting the pix on a t-shirt), and if he asked the model (or parents of a minor) to sign on set, he’d be stepping on the agency’s toes big time and he’d be blacklisted from the agency (as he probably is now).

          • Yeah most agency girls are told DO NOT sign releases. No agency wants to lose control of images of one of their girls, especially if they haven’t seen them yet.

            This kind of shit happens all the time in fashion. Who’s shocked by what crimes actually happened? Hopefully the parents get the money just to stick it to Urban Outfitters for selling crappy clothes.

            • All agencies have language in their contracts granting them Power of Attorney (ie: they can sign legal documents and enter into agreements on the model’s behalf) and many bar the model (or legal guardian) from entering into a competing or conflicting agreement as long as the agency contract is in effect, so even if the parents had signed a model release, it probably would have been negated by the agency contract.

              It’s not only to protect against this sort of thing, but more so to make sure the agency is in control of the model’s career and rates, and to ensure the income passes through the agency, similar to the function of a non-compete clause.

  18. Wow.

    I do have to say that reading through the responses here that the comprehension of this case, as filed in the pdf, seems to be lost on most.

    The parents WERE at the shoot. At some point, after the shoot and upon review the parents REJECTED the images because of the way they portrayed their minor child. The agency gave notice that the images in their entirety were not to be used. Ever. So, no release.

    It is not surprising that the parents were not completely aware of the images at the shoot. They may have been on location but not on set which IS standard procedure. If they were not aware of the photographers “style”, then I would say that they definitely didn’t do their due diligence. But when they saw the images before publication they did.

    The photographer collaborated at least with BITNB because the garments had the images that he took printed on them and his name embroidered on the label.

    • I read the lawsuit when I posted above, but after reading/watching the ABC coverage it seems like a completely different story… I guess it will come out in court…

      I like his work, even this shoot. Always get the release.

    • oops, the parents were NOT at the shoot, but had full knowledge and permission for the shoot to happen but after review asked for offending images to be taken down.

      I am surprised that Mr. Parry didn’t have a lawyer respond, now his email is evidence against him…

      • “I do have to say that reading through the responses here that the comprehension of this case, as filed in the pdf, seems to be lost on most.”

        Once again a total fail VJP.

        And standard procedure? Please, agencies and parents let underage models got to tests alone all the time. esp with an established name.

        • Now Parry is claiming that the father WAS there, and as I was referring to originally, that if you are at the location, but not on set was “standard procedure” ie: being around but not looking over the shooters shoulder.

          I might be a fail, but I ALWAYS have a signed release so a guardian/parent has to be there at some point.

  19. I know of “modeling agencies” who often put their young (13-15) models in very provocative (albeit poorly photographed also) situations. It really bothers me that it occurs and I would never do those kind of pictures. It’s a bit creepy to me in the first place.

    • Am I being totally archaic if I bring up the model’s safety on the back of that bike? Imagine the shit storm had she gotten hurt? This would be a minor (no pun intended) issue in that situation.

  20. welcome to the era of digital publishing. this is going to happen over and over again people. its way too easy to publish imagery these days. and its way too easy to steal, appropriate and profiteer. yes the shooter might have been a bit naive, and yeah the girl was well underage for that kinda stuff , but hey, kids with cameras arent thinking like that these days cos its sooooo easy to shoot and publish for instant cool. Gold digging i reckon.

  21. At the risk of sounding sour grapes and all that I will say…

    I think it would be interesting if this incident spell’d the end of the fashion-as-porn or is that porn-as-fashion movement; and the generic model looks and poses that are associated with it. Young girls with pert breasts in a St Teresa state of perpetual orgasm are part and parcel of this ‘commercial’ style.

    I could name a reasonably long list of photographers shooting in virtually the exact same style; if this gets through it won’t be the end it will just be the beginning.

    • I’m kinda with you there, Kent Johnson: I’m tired of the whole porn-as-fashion/fashion-as-porn thing — and don’t even get me started on all of the ‘dead’ girls… (I could come up with a reasonably long list of those, too.)

  22. I think there something rotten in Denmark. Why did the parents and not take action earlier? Why would they and the agent allow her to work with some like Parry? There are too many red flags here.

    Parry, what if that was your daughter in the shoot, would you shoot those images? If you would for the name and sake of art, your not an artist. I think there is a question to the depth of cognizance. The pose on the back of the motorcycle is crap.

    I think both are going to have a problem getting work in the future. I mean it not like I don’t know all the names for the parties involved. I sure others have taken notes also. I think what really brings concern and questions the motive by both parties is the blatant disregard for the rules and laws.

    JMHO, but I think it lines up this way, “dumb, dumb n dumber, dingbat and meat-head, and listen here little girl.” My gut feeling is the parents saw an opportunity ( Parry opened the door) and are capitalizing on it. Bad decisions were made by all the parties and this is all about money and use without compensation. again JMHO

  23. “…he did not get a model release because it was a test/editorial…”
    then –
    “…admits knowing about the images going on the t-shirts…”

    Wait… what?

  24. The more I have read on this it seems Urban Outfitters is getting sued for $28 mil and not the photographer. Why would the parents go after some broke photog when they can go after Urban Outfitters. Also I would like to know who gave the images to Urban Outfitters (modeling agency or photographer?) In any case I would ALWAYS get a model release ESPECIALLY with a person under 18.

    • Does the photog have insurance? Following-the-money often leads to an insurance company.

      I’m not a lawyer of course, but if I were, I’d go after anyone involved that might have some kind of liability insurance backing.

  25. Why this emphasis on the photographer ? I thought that the entity responsible for the use of the images and whatever permission is needed from subjects is the actual user (the clothing companies in this case).

    • I think the emphasis is there because its pretty evident that the photographer acted carelessly in a variety of ways – in not protecting himself or the model. And regardless of where the responsibility lies in the lawsuit, anyone can sue anyone for pretty much any reason – whether its successful or not is a whole other story, but the time, effort and expense of defending yourself makes it worthwhile to avoid the situation in the first place, I think.

      • I think the photographer’s mistake was in thinking that the father’s (who was there, as I understand was the case) agreement to how they were shooting, was enough. Parry should have got a written release on the spot, or at least had a credible witness the father’s approval, something more than blind faith.

  26. regardless of age, a photo without release cannot be used commercially…these images have been all over the web, editorial use is fine and i am sure the parents had no problem with it…..
    selling the images is idiotic….there is no agency to blame….make sure you know which agency she is with and make sure they agree and get their cut….problem solved….
    the lawsuit is obviously completely over the top and they are just throwing up to see what sticks….i would probably do the same if that was my daughter….
    that said, the parents knew perfectly well what the photographer was going to shoot and saw the images all over the web and in mags as well….but someone making money off them is a totally different thing….
    is it porn? hell no, any abercrombie&fitch image is like hustler compared to this….but she is 15 and that is that….you set yourself up for it once you take the shot….

    i think the real problem is that in order to get anywhere in fashion, one has to do these tests, try to get them in mags and hustle with the images…..there is no money in editorial, nobody pays for anything…but photographers, models, make up, stylists…everybody needs fresh images and needs to get noticed….
    but i don’t see anyone anywhere holding a gun to someone’s head….
    the parents were involved all the way and decided to let a lawyer loose once someone wanted to cash in on their daughter without their consent….makes sense to me….

  27. Did anyone else notice that the parents chose to file the suit in NY, despite the fact that they and Parry both live in CA?

    Could it be because they know it makes it harder for him to defend himself (since he would have to travel to NY to appear)?

    The only party based in NY is Brandy in Melville, which has one store there (and 3 in CA and one in HI).

    Hmmmm…

    • It doesn’t work that way. Here’s how the law works in these matters:
      Quoting Edward C. Greenberg, LLC from Document 1-12, Case 1:11-cv-05766-GBD Filed 08/18/11 Page 2 of 32: [Referencing Urban Outfitters, Blood Is The New Black, and Brandy Melville and the production, promotion and sale of their garments] “Such offending Apparel is being advertised and sold in the State of New York, on the Urban Outfitters Website, throughout the United States and elsewhere in other “brick and mortar” stores. Purchases of the offending items have been made in the State of New York”.

      • Yes, but my point is all of the parties have a presence and do sales in CA as well, but it sure makes it more costly for JLP to fight it in NY.

  28. Of course, I can see how this happened. Companies don’t want to invest in photos for tshirts, since they are used to getting them for free. Everyone assumed it would be OK.

    Hailey is such a good model, sad to see this happen. She is blowing up though and her image is worth a lot of money for companies like gucci. So its no wonder that her parents want UA to stop or pay the proper price (which would not make sense for tshirts at UA)

    I think that it really is the photographer’s fault for not using discretion when selling the photos. He could have easily contacted the model or agent to clear any issues before selling. More importantly he could have also asked the companies to obtain/pay for a proper commercial release before giving his own release of the photos.

    • You hit the nail on the head TT, considering a top model can easily make upwards of $100K per day for an ad campaign. Hailey has the potential to get to the top of the industry, if she plays her cards right, and her being associated with a brand like UO doesn’t help. When you consider this, JLP’s offer of the profits from the t-shirts is laughable.

      That said, the parents probably aren’t doing her career any favors with a suit as public as this – they risk coming across as overly litigious and greedy, which could give certain influential photographers whose work is risqué pause about shooting her… at least until she turns 18 that is.

  29. Edward C. Greenberg

    We represent the child in this case.

    If you read the court papers you would know that;
    1. There is no allegation that the parents were present;
    2. The child’s images are being used to sell products – t shirts by major retailers who have pulled the shirts;
    3. THERE ARE NO MODEL RELEASES OF ANY KIND for use of any of the images for any purpose;
    4. Mr. Parry’s website included (until a few days ago) photos of young girls, many of them topless, bleeding from their noses, apparently restrained and/or drug addled and/or physically abused;
    5. The court papers contain Mr. Parry’s apology;
    6. Your readers are urged to watch Mr. Parry’s televised interviews which are self contradictory and do not jive with your article;
    7. Photographers and illustrators should know that if they portray anyone without any consent for trade or commerical purposes without a signed, release they expose themselves to liability as do their clients.
    8. Children portrayed and styled by the photographer (in this case all styling was done by Mr. Parry) in the possession of and consuming alcohol and/or exposing certain body parts, exposes the users and creators to various civil and possibly criminal sanctions;
    9. Mr. Parry’s new sanitized site still contains young, nude girls consuming whiskey and wearing Lolita glasses (get the reference) with no representation that any of the girls is/are over the age of 18;
    10. Companies that employ the use of any person particularly children, to sell products for commercial gain without consent are likely to get sued;
    11. A child and her parents who have filed an extensive complaint with a Federal Court backed by facts and documentary evidence ought be
    given the doubt over three corporations and a photographer who all benefitted financially from the exploitation of the images. NO DEFENDANT HAS ASSERTED OR CLAIMED TO HAVE EITHER SOUGHT NOR OBTAINED A RELEASE OF ANY KIND.
    12. Mr. Parry represented that the images would not be used and he used them nevertheless. He alternately claims the images were stolen.
    13 Your readers ought go to thecopyrightzone.com “Sexualizing Tweens” for a brief review on the laws on the use of children and the necessity of obtaining written releases;
    14. No agent for the child approved the use of the images for any product or commercial use.
    15. In Mr. Parry’s ABC interviews (plural) he states that he did not show the images to the child’s father nor does he represent he showed them to her mother.
    16. It is not good practice to put beer – in this case Budweiser – and then proceed to portray the possession or consumption of the alcohol by a model who they know to be a child (15)

    We urge anyone interested in the issue not to rely solely on media reports. Read the court papers for yourselves (portions are under seal by the Judge at our request). If the author wanted to verify the above facts he could have contacted us just like other media outlets did. We will not be interviewed by the media however because we have a child/client to protect.

    This office represents hundreds of photographers. We know how editorial shots are done. We really know about spec shoots and the like because we have been representing photographers and models for over
    33 years. When a photographer uses unreleased, libelous photos of a child to make money he/she does so at their peril. Ethical photographers of adults and children who follow the law have nothing to fear.

    To those who think it is fine for children to be employed and/or demeaned without anyone’s permission or consent for their economic gain – we will leave you to your beliefs and perhaps you can argue the merits of those beliefs in front of a judge or jury.

  30. Edward C. Greenberg

    Final points of clarification to those who e mailed me directly or via thecopyrightzone.com and frankly, to save me the time of answering each one individually:

    Mr. Parry’s name is imprinted on Blood Is The New Black shirts. Had the images not been used with Mr. Parry’s assent, knowledge or consent his name would not be on the shirts, in ink;

    By all means Google the statements and articles containing the statements of and interviews with the representatives of Blood Is The New Black. See if they jive with Mr. Parry’s statements. You might want to see the articles on (as I recall) Vogue.com – I might be wrong aboout the website but the president of Blood Is The New Black was interviewed and their own promotional video employing the shirt is also available for viewing on the web.

    Our client was put on a MOVING motorcycle with an adult driver sans helmet;

    The venue of a lawsuit is subject to many legal factors, the guesses or feelings of the non-lawyers above notwithstanding. These well presumably well intentioned comments are erroneous. You might want to read “Location, Location, Location”, an article written by Jack Reznicki and myself which is on thecopyrightzone.com. You can’t simply sue a person in a jurisdiction to make it more expensive for them to defend themselves. Neither the law nor the courts permit that.

    It is common business practice and a requirement of the laws of countless states including, NY, CA, Florida and so on, to be in possession of a signed, written release before employing the image,portrait, photo (and in some states voice), of a person (professional model or layperson) before using such photo for trade or commercial purposes including apparel. Nearly every retailer and manufacturer seems to have little to no problem in following the law. Lawsuits are relatively rare as a result. The risk of not having a release is so big and a release so simple to obtain if the model is appearing with consent, that 99% of photographers and/or clients obtain them. Really not a big deal at all in practice.

    There is no allegation in the complaint that BOTH parents were present at the shoot;

    You are free to read the complaint and not guess about anything. All of the points addressed in the piece and the comments (most of which are right on point) are addressed. Some of the guesses and suppositions would be extinguished by simply reading the complaint.

    A photographer whose image was scanned or appropriated without his/her knowledge or consent by a retailer for use in connection with the advertising, promotion or as part of a product would have no reason to worry so long as the appearance on the website was consented to. In such case the retailer would be getting the lawyer’s attention not the “innocent’ photographer. We can’t count the number of cases in which we represented a photographer suing in copyright infringement because their image had been stolen and/or where on behalf of a model, we left the photographer out of the suit because the photographer was on the model’s side and testified on the model’s behalf.

    Yes, in many situations we are representing both photographer and model because neither consented to the use of a given image. It is common for both photographer and model to be ripped off by the same defendant(s). If someone runs the risk of ripping off the photographer they often knowing or unknowingly wind up ripping off the model as well.

    Photographers, illustrators, graphic artists, film makers (who incidentally obtain court approved contracts for use of a minor before filming commences) comprise the overwhelming majority of our clientel.

    We teach (with Jack Reznicki) these issues to photographers at PhotoShop World , on Kelby Training , at panels sponsored by among others, APA and at The School For Visual Arts in NYC. These issues comprise a substantial portion of our book and DVDs as well as the articles on thecopyrightzone.com and in PhotoShop User magazine and we thank you for your kind words.

      • Blood Is The New Black has has like two employees. Does very limited runs of art shirts. It’s not the GAP. Good luck squeezing blood from a turnip. Maybe they can throw a drink at you at the local sample sale though.

  31. Concerned Photographer

    “Many photographers have images on their websites and in their promotional material that are not model released and while most people wouldn’t allow those images to be used commercially there’s the possibility that it could be stolen…”

    True, but that’s not all.

    In many states in the US, a photographer cannot legally post any photograph of a model to the photographer’s web site without a model release, if the photographer uses the web site for commercial purposes.

    If the purpose of the photographer’s web site is to display samples of the photographer’s work in order to attract potential clients or secure assignments, the photographer is commercially exploiting the likeness of each model pictured in the photographs. With very rare exceptions, a photographer’s web site is a marketing tool. It is advertising. It is commercial use.

    If the images are stolen from the photographer’s web site by others, the photographer is liable for a portion of the damage caused by others. Even if the images are NOT stolen by others and appear only on the photographer’s web site, the photographer is liable for any damage to the model, and in many states, the photographer must also relinquish income received from other clients, from jobs resulting in part from the viewing of the images on the photographer’s website.

    Damages are likely to include the fee that the model (or agency) would have charged for the session, the usage fee, any profits related to the image directly or indirectly, as well as compensation for any defamation or other damage done to the reputation of the model, any *potential* loss of the model’s ability to enter exclusive contracts with other clients, compensation for distress caused by the use of the image, etc..

    But that ain’t all. The real killer for the photographer: attorneys fees. If a state law allows recovery of attorneys fees, or if an offer of judgment is made, the photographer may be held liable for attorneys fees and costs, which can far $100k in this type of legal action.

    Even if the images on your website are editorial or fine art in nature, your publication of those images on your website can in some states constitute commercial use, if you use your web site to attract commissioned work/assignments or to sell *anything.* In some states you *might* get away with it. In most states, not. Even if you are confident that your state allows such usage, your publication on the web results in publication in others states and countries, and models in any state and country can sue you in the courts in their area.

    Even if you were hired by the pictured person (actor, model) or an agency to create the images, you have no legal right to make use of the model’s likeness, unless the image is model released. For example, if you shoot a wedding, you have no right to place the wedding photographs on your website as examples of your work, unless you have the consent of all of the people appearing in the images. Any one of them can sue you, and win.

    You might own the copyright, but that ownership gives you no rights to make use of any photograph picturing a person’s likeness. All of the above applies also to posting sites to a blog or to social media or third party sites, like facebook, tumblr, twitpics, model mayhem, google+, flickr, photobucket, etc.

    There are exceptions to the above. For example, you *might* get away with using a model’s likeness without permission in some states if you are a stock photographer or stock agency, and if you (1) *never* use your website to attract clients for commissioned work, and (2) *never* offer any product or service on the site except for the licensing of the photographs, and (3) include terms and conditions advising viewers that some images are not model released and that anyone licensing the images from you must obtain model releases before using the photographs for commercial purposes

    In general, models are just as desperate as photographers – more so, in fact. Photographers around the world are threatened with lawsuits every day of the week, but you will never hear about it. 99% of these conflicts are quietly and confidentially settled by the photographer or his/her client or their insurance companies, often for hundreds of thousands of dollars. You’ll only hear about the cases that get up in the millions, where there parties are unable or unwilling to settle.

    To repeat: if you are using any photograph of a person on your website without a model release, and if you have ever or will ever use your website for the purpose of attracting clients, securing jobs, or selling products or services, you are just a lawsuit waiting to happen.

    • [citation needed]

      since, you know, you’re a ‘concerned photographer’ and not a lawyer.

    • Brandon D.

      Do you have any examples of successful litigation against a photographer for simply showing work in his web site portfolio without a model release?

  32. Edward C. Greenberg

    Concerned photographer is largely correct with a very important “however” – unlike copyright law which is federal, rights of publicity/privacy are governed by state laws. State laws vary widely from state to state. The only advice that is close to a “one size fits all” is to get a proper written model release signed by the appropriate party which clearly sets forth the uses consent to by the model/subject.

    In the time it takes to think about whether you think you need a release, you could have had one signed and in your pocket. Signed model releases are the best sleep aid a photographer can have.

    • Brandon D.

      Just curious… do you have any examples of successful litigation against a photographer for simply showing work in his web site portfolio without a model release?

    • Concerned Photographer

      I am a photographer currently involved in litigation not related to this case, and can’t comment publically at the moment.

      It never ceases to amaze me that photographers can be so hypocritical, often copying the works of other photographers or illustrators, while at the same time aggressively defending their own copyrights. Then of course there are the legions of photographers who silently and routinely agree to shoot from advertising layouts using stock photographs or swipes from other photographers’ books making substantially similar images. Then there are the photographers – perhaps the majority reading this — who share music illegally and make extra copies of Adobe apps and other software, because, after all, who’s gonna know, and what could it hurt? Yeah, right.

      While complaining ceaselessly about infringements, rights grabs, and low fees, photographers don’t hesitate to nickel and dime their models and try to get models to sign unlimited model releases. A rights grab by any other name is still a rights grab.

      Copyright and right of publicity are not related, but right of publicity can limit a photographer’s ability to make use of the photographer’s images, reducing or eliminating the value of the copyrights.

      Models and their agencies are having a field day with photographers, publishers, ad agencies and other corporations. You’ll never hear about it. Letters are exchanged, threats are made, negotiations ensue, settlements paid, agreements are signed and buried. That is 97 – 99 out of 100 cases flying below the radar.

      No matter how you slice it, a photographer’s website is an advertising and promotional vehicle. There are almost no exceptions. The reality is that in any state prohibiting the commercial use of a model’s likeness without the model’s consent, use of an image on a photographer’s website violates the model’s legal rights.

      Similarly, a photographer cannot legally post a tearsheet of an advertisement or editorial featuring the photographer’s work without obtaining a license from the copyright owner of the advertisement or publication. Likewise, an ad agency cannot legally post a tearsheet of a photographer’s work if that use is not licensed or if the license is expired. In those types of instances, relationships between the parties typically prevent any claims. But when relationships go bad, you can bet that a photographer will claim that usage of a tearsheet on an ad agency site is an infringement. I’ve seen it happen.

      Similarly, when that photo assistant or 2nd shooter, who you pay as an independent contractor, gets angry at you for whatever reason, you are wide open for a joint copyright ownership claim on any images in which the assistant contributed to the creation of your images (lighting, camera position, shooting 2nd camera, etc.).

      Rather than trying to come up with excuses, rather than trying to weasel out of your obligations, rather than trying to screw your vendors at every opportunity, why not operate in an ethical, responsible and legal manner. Just a thought.

  33. Edward C. Greenberg

    If Brandon D is asking the above question of me – I have settled claims of that nature without the need to file suit and I have settled lawsuits where such use was a minor part of a much broader claim representing both plaintiffs and defendants. I have never had to litigate just that issue to a verdict. It would be unusual but not impossible, that such unauthorized use on a website ALONE would justify the expense of a trial.

    Remember that 97% of all filed cases nationwide are settled without resort to trial. Lawyers or laypeople whose knowledge is limited to reading reported decisions only, are missing out on what actually goes on in about 97% of such disputes.

    • Wouldn’t this run afoul of the first amendment in general?

      It’s different, of course, if a person were selling the images as stock, but a website is a gallery more or less, with a contact page.

      How can you differentiate between what is commercial vs. constitutionally protected art vs. editorial on a website?

    • Brandon D.

      Fair enough.

      But… wouldn’t a simple document (e.g., a contract) granting a photographer permission to post images of the model on that photographer’s web site be sufficient enough for “legal permission” to do so?

      I mean, don’t many modeling agencies prevent their models from signing releases because they can screw the model out of compensation (i.e., taking advantage of the model)?

      Maybe it’s just me, but a model release just for posting images on an online portfolio seems a little heavy handed to me. Don’t get me wrong, though. I understand the “just always get a release anyway” philosophy.

      I just find it hard to believe that a model can argue “COMMERICAL GAIN!” simply based upon an ordinary online portfolio. For example, a model argues, “Photographer X shot me 5 years ago for a simple model test. I didn’t sign a model release, and he still uses images of me on his web site. Last week, I read PDN magazine and found out that that photographer has made $50K since then by shooting interiors for decor magazines! He took advantage of me! I want money! Make it rain!”

      I mean, seriously?

  34. Edward C. Greenberg

    There are no First Amendment issues in these type matters where a model release is required by state law. The First Amendment does not give a photographer the right to use a person’s image without consent as may be required in a given state when the use is for trade or commercial purposes.

    Again, rather than bring up obscure law school type issues, just get a release signed by the proper person. We always suggest that photographer’s time is better spent by building their business and making contact with clients than spending time discussing legal issues with (typically) other non-lawyers.

    • But what about an art gallery? They don’t have nor are required to have releases of anyone appearing in a work they are featuring.

      My argument is that a website – with some exceptions like selling stock – is more a gallery than a commercial use.

      http://www.editorialphoto.com/resources/6-05_LegalNews-%20right_publicity.pdf has a few examples of cases though certainly some research could dig up many more.

      I’m not sure I agree with pushing photographers to settle a case they would probably win, just because it’s cheaper to settle. There are a lot of instances where a release isn’t possible to obtain and if it’s unnecessary, should not restrict its use.

      • And by ‘website’ I’m talking about photographers’ own sites, and not those of their clients.

    • Edward C. Greenberg

      If you escaped being manipulated by adults while a child you are indeed fortunate. There is however a long, very long history of children being used without their consent (or that of a parent) for the sole financial benefit of corporations including movie producers, photographers and artists. We trust that you have read all of the papers submitted and are fully familiar with what wen on here remembering all of the time that the model – regardless of the age she appears – was 15 years old. We assume your opinion is not just a “gut feeling”. The law says that 15 year olds “can’t know what they are doing”.

      If it was “OK” with everyone that the shots be taken and used as they were there would be no lawsuit.

  35. Whether she was manipulated or not, I find it interesting that the child used the supposedly offensive images on her own website, only to remove them prior to litigation. The photographer did not have a release from her, but I am sure she obtained a written permission from the photographer for using his images on her web site.

  36. “You’re honor that’s not a beer, it’s a prop. That’s standard business practice in the industry.”
    Everyone always reacts to these baseless and silly lawsuits as though photographers either did something (legally) wrong, or that they should have gotten model releases first.
    While I don’t defend the morality of what was done, no laws were broken, at least not any that are provable and obvious. (Note: don’t let the distastefulness of someone’s behavior impede your legal analysis.)
    As for the model release, the photographer is NOT liable for how others use images, either licensed or stolen. He can use these images all he likes as part of his portfolio, but he cannot use the images as if to suggest the model(s) support or advocate his photo business. Those are two very different things.
    The photographer is legally allowed to license these photos to anyone for any reason. It’s the buyer who *publishes* the images that bears any liability, if any.

    The moral of the story is that angry people tend to sue all the time, and there’s nothing that protects against anger, neither model releases or permission. It’s engaging in dubiously moral activity that’s getting him in trouble.

  37. As for the “commercial uses” question, that actually side-skirts the real trigger for a model release. It’s not whether it’s a commercial use, but whether someone can be perceived as *supporting or advocating* a particular idea, product or service. The commenter in 75 is wrong when he says that photos on the web require releases because the are used “for the purposes of attracting clients…” sure they are, but that doesn’t matter. You can use photos to attract clients all you like so long as the use does not suggest they are advocates for you.

    Newspapers and magazines and books use photos of people to promote themselves if those photos were used as part of those publications’ normal business. Yes, the original use of the photo of the guy who got in trouble for white-collar crime was part of a news article, but the newspaper can still use that same photo for promotional purposes to illustrate its strength as a publication *to attract clients*. No one would interpret the guy as being a “supporter or advocate” for the periodical, which is the ONLY trigger needed for a model release.

    Hence, portfolios do not need a release because people do not perceive the people as “advocates.”