Model Release* What should a Model Release form include and what should beemphasized in it, in order to defend the model's rights?
Models, especially when they are just starting out, often feel intimidated. They fear that if they question the slightest thing in a model release, they will not get the job, more work, or be branded as being trouble. The problem is, if a model simply signs whatever she is given to sign, it will almost certainly favor the photographer and the client and take away almost every right a model may have to prevent the photos of her from being misused.
While it is true that a photographer needs some leeway, if you give an unscrupulous photographer the right to do anything he or she may conceive of doing with their photos of you, they may just use them in a very offensive way, and there is little a model can do to know what is in the mind or heart of a photographer he or she has just met.
Models who are just starting out rarely have confidence in any clout they may have. However, if the client or the photographer has selected you from all the other models they could have chosen, you may have more clout than you realize. And if you are willing to sign away every right you have in your images, you are in the wrong business to begin with.
People will tell you that only as you become more in demand that you can demand your fees for only certain uses of your images and allow their use for a limited amount of time. But it is at the very start of your career that you are most vulnerable to having your images being misused and if they are misused, you may find your career ending before it’s begun. Be prepared to see this type of term in a model release, and to either run from the building, have it altered, or accept the consequences that may result from agreeing to: “I hereby release, discharge and save harmless the photographer or any other person distributing the finished product, even if the finished product is distorted, blurred, altered or used in such a way, intentionally or otherwise, or used in any manner such as to subject me to scandal, scorn, indignity or ridicule and waive any right to approve any use of the finished photograph or its use.”
On the other hand, a photographer must be allowed to enlarge a negative, manipulate the photograph, convert it to digital form, use Photoshop or other software to enhance the quality of the photograph. While it is difficult to obtain the right to approve the uses of the photographs taken of you, you can limit the uses by excluding those uses that would be harmful to your career or reputation. If you want to prevent a photographer from using the photographs in such a manner, seek a provision that in the event of intentional humiliation of you in the use of the photos by the photographer, the release will be void. Some models who are unsuccessful obtaining such provisions will at least write restrictions in the margins of releases such as, “Photos may not be used on sexually explicit web sites or pornographic materials.” Be wary of allowing any use in the release and then limiting those uses only in a separate waiver of copyright. Conflicting provisions are a nightmare for the courts to weigh.
* In which circumstances a cancellation of a contract is possible?
Fraud, duress, illegality, and lack of age of consent. However, those defenses rarely come up unless a minor is involved and the contract was not signed by the minor’s parents or guardians. Even then, a parent or guardian’s signature may not be binding, if for instance, the intended use of the photographs is illegal.
That being said, there are still some ways to either void a contract or obtain damages when your images are misused. However, keep in mind that the broader the release you signed and the more rights you gave away, the harder it may be to assert these defenses or allegations in a lawsuit.
Here are four common ways in which photographers can get into trouble. First, if a photographer has intruded upon your seclusion to make the photographs, the photographer may be sued. While some courts have even ruled that such an intrusion can occur in a public as well as a private place, you will have a much easier case to pursue if the photographer used false pretenses to spy upon you in a private place such as your home. Second, if the photographs of you portray you in a false light, they may also entitle you to your day in court. Third, use of photographs of you for commercial gain without a model release may also entitle you to damages. Fourth, photographs used in an unexpected manner such as promoting pornographic products may also be deemed to constitute an invasion of privacy.
It is therefore imperative, that if you sign a model release, that you ensure it describes the subject matter it will be used in conjunction with or its intended use, in order to preserve your rights and your reputation.
Copyright 2007 The Law Offices of R. Sebastian Gibson, Rancho Mirage, CA (760) 776-1810