Tuesday, January 5, 2010
If you want to feel properly protected and have the latitude to maximize your ability to sell an image, don’t forget the model releases when you hit the street
In a somewhat troubling move for photographers and their agents, the court also found that Arrington had stated a right of publicity claim against the photographer and CPI. As the court noted, by “operating independently from the publisher,” both the photographer and CPI would have commercialized the photograph in furtherance of trade. The court also noted “[t]hat the sale was to a publisher of news and articles on matters of public interest would not, in and by itself, have clothed [the photographer and CPI] with the publisher’s immunity from” the statutory right of publicity.
Playing It Safe
While decisions such as the Arrington case may not be the norm, they illustrate the tremendous value in playing it safe and treating photographs taken of public scenes and places as though they’re intended for commercial use.
Photographer and President of the Portland, Maine-based photo agency Aurora Photos José Azel has emphasized the value of obtaining model releases while on assignment. “I don’t take a tape recorder on assignment with me, but I do take a stack of model releases.” Utilizing model releases, Azel puts himself in a position where he can market images for various commercial purposes and maximize the return on the time he invests in an assignment.
Ultimately, Azel’s approach is the only safe approach. Even if you’re not intending to commercialize an image, and even if the person in the photograph isn’t clearly identifiable, there’s always a possibility that, after the initial shock of seeing himself or herself in a photograph, the subject will file suit. A model release can prevent this, or at least provide a very real defense to a claim that the use of the photograph wasn’t authorized.
Model Release Nuts And Bolts
Do a quick search on the Internet, and you’re likely to find hundreds of different model releases. The difficult part is finding a good form model release from both a legal standpoint and a public viewpoint.
At their simplest level, a model release boils down to permission, granted by the person signing the model release, to use photographs or likenesses of that person for various lawful purposes. Unlike agreements that tend to be tailored to a specific state’s law, a good model release tends to be drafted to cover a variety of states’ laws. Depending upon the complexity of the model release, it may also address issues of:
• Consideration/Compensation. In simple terms, consideration is the exchange of promises that make contracts enforcement in most states. It’s not uncommon to find language in a model release indicating that “in considering for my engagement as a model” or “in consideration of $____ paid” or “for $10 and other good and valuable consideration;” in each instance, the language seeks to memorialize that there was consideration to make the release enforceable. The danger associated with including such language is that if the consideration doesn’t match what appears in the model release, or if the consideration isn’t paid, the person signing the model release may be able to challenge the effectiveness of the release. Some forms also may include language indicating that the person signing the release will receive no additional compensation, even if the photograph is commercialized.
• Release/Indemnification. Some forms may include a release and even a hold harmless provision in favor of the photographer relating to any claims that may be raised based upon the use of the photograph. However, the use of an indemnification provision may do more harm than good, as it may discourage people from signing the release. In addition, the value of an indemnification provision is generally only as good as the resources of the person providing the indemnification; in other words, if a person doesn’t have the financial ability to indemnify you, the indemnification agreement only gives you a right to sue and recover an uncollectable judgment after you’ve had to resolve the original claim.
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