Technological advancements are being made in photography at such a tremendous pace that it’s often difficult to keep up. Increasingly, letters and faxes seem downright antiquated, having given way to email and text messaging. Even the act of entering into a contract has changed. The days of the parties to a contract meeting for the purpose of executing the agreement are quickly becoming a memory. Indeed, the last several contracts that I’ve entered were sent via email, remotely printed, signed, scanned and then returned via email. In some cases, the contracts were even signed electronically.
Often, the law is maligned as an anachronism unable to keep pace with technology and the other advancements of our modern world. While there are no doubt examples where this may be true—just as one may consider the use of a light meter with a DSLR to be passé—by and large, the law has kept pace with the advancements. Sometimes, the law doesn’t need to change to keep up; at other times, the law keeps pace; and every once in a while, the law takes a leap ahead of technology. Electronic and digital signature legislation is an example of the law leaping ahead.
Not Your Typical John Hancock
About now, you might be wondering how one would sign an email as you would a letter or a contract with a pen. About 15 years ago or so, various states started to answer that question by enacting legislation specifically recognizing and giving legal effect to electronic signatures, and making electronically signed documents as enforceable as any other signed document (at least in most instances—there are certain exceptions). State efforts were followed by federal legislation that President Clinton signed into law in mid-2000.
In general terms, an "electronic signature" can be just about anything electronic that a person intends to be a signature. For example, Florida’s Electronic Signature Act of 1996 defined an "electronic signature" to be "any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing." In practice, this means that simply writing one’s name at the end of an email can be a signature if it was intended to be a signature. Likewise, a scanned copy of a handwritten signature would also qualify as an electronic signature. The definition is purposely broad to permit people to utilize any variety of technologies when electronically signing documents.
Digital signatures are a subset of electronic signatures. These are generally based upon a form of encryption technology called asymmetric cryptosystems; the scheme involves the use of two separate and different keys for encrypting and decrypting/verifying messages. One key, commonly referred to as the "public key," so named because it’s freely distributed to the public, allows the recipient of a message to verify the digitally signed message. The "private key," so named because it’s intended to be kept private, is used to create a signature. Only a signature created with the private key will match up with the related public key. While this technology adds a level of complexity to utilizing electronic signatures, it also brings with it certain distinct advantages; since digital signatures are based upon encryption schemes, they bring a level of reliability that can far exceed traditional pen-and-ink signatures, and many of these schemes have the added benefit of being able to detect whether the digitally signed message was altered after it was signed (any alteration causes the signature verification to fail).
Some digital signature technologies will use separators to identify the message and signature. The text of the message itself appears between "MESSAGE" and "SIGNATURE" boundaries. The signature itself appears at the bottom of the message (the jumbled text at the bottom contains information relating not only to the signature itself, but also the contents of the message; thus, if anything between the "MESSAGE" and "SIGNATURE" boundaries changes, the signature will fail and the software used to verify the signature will explain that the message has altered). When properly used, digital signatures can be more reliable and less susceptible to forgery than traditional, handwritten signatures. Unfortunately, this reliability comes at a cost of requiring users to learn how to use the specialized software necessary to create digital signatures. Today, there are two primary laws that give legal effect to electronic signatures in the U.S. The federal law, which was enacted in 2000, is the Electronic Signatures in Global and National Commerce (ESIGN) Act. However, in a unique twist, the federal law doesn’t apply where a state has enacted a version of the Uniform Electronic Transactions Act (UETA), which states started to enact in 1999. Today, UETA has been adopted by 47 states, Washington, D.C., Puerto Rico, and the U.S. Virgin Islands (only New York, Illinois and Washington haven’t adopted UETA, although each has enacted a form of electronic signature legislation). Neither of these laws requires the use of digital signatures, although each law’s definition of "electronic signature" is broad enough to encompass and give legal effect to digital signatures. Neither ESIGN nor UETA requires the electronic signature to be printed in order to be enforceable.
While there are some additional requirements and limitations associated with the two electronic signature laws just mentioned, there are relatively few limitations associated with the practical application of electronic signatures in business. However, the laws aren’t without potential pitfalls. One of the most common pitfalls is determining whether an electronic signature is intended to be a signature. For example, while a name appearing in a block of text automatically inserted at the end of an email—sometimes referred to by the misnomer "signature block"—probably won’t be viewed as having the requisite intent to make it a signature, a typewritten name, initials or other closing manually typed at the end of an email may be seen as having the requisite intent.
The Practical Application Of Electronic Signatures For Photographers
While photographers—particularly those who travel extensively or are constantly on the go—can benefit from implementing and using electronic signatures in their business, there’s at least one specific application where electronic signatures may prove particularly useful to photographers: model and property releases.
In late 2010, Getty Images announced on its contributor website that it had approved Easy Release, an iPhone/iPad app produced by ApplicationGap (www.ApplicationGap.com), for use by its contributors. The announcement marked the first time that Getty Images approved any app for creating model and property releases. "We are happy to report that we will now accept model and property releases generated electronically by approved iPhone/iPad applications…." The only limitation imposed was that Getty wouldn’t accept app-generated releases from China, presumably due to local laws; however, Getty would accept Chinese-language releases generated by an approved app provided they’re executed outside of China, and such images can still be licensed inside China.
There’s at least one specific application where electronic signatures may prove particularly useful to photographers: model and property releases.
Getty also cautioned its contributors that "[a]s our form releases change from time to time, please be aware that you will continue to be responsible for insuring that the application you use to generate releases uses the correct [Getty] release version in effect at the time of submission."
Washington, D.C.-based photographer and ApplicationGap founder Robert Giroux saw Getty’s ann
ouncement as a major step forward. "[W]hile many stock agencies [including, most notably, Alamy] have for months been accepting model and property releases created with Easy Release, approval by Getty Images means far more professionals will be able to take advantage of our application to save time and money." At the time that Giroux started work on Easy Release, there were no apps designed to deal with model releases.
Easy Release, which is available on the iTunes Store, can be used to capture and store information, including signatures, and ultimately generate and transmit fully executed model and property releases. Says Giroux, "We have worked hard to make sure Easy Release meets all of Getty’s strict standards and requirements. Easy Release is now a better tool than ever for creating professional and reliable model and property releases quickly and easily from wherever you are." Easy Release is available for iOS and Android platforms. One feature of Easy Release that photographers may find particularly useful is the ability to store and generate a variety of types of model and property releases. Thus, if you travel internationally, or have been advised to use different model releases (or even releases in different languages) under certain circumstances, Easy Release can store and generate each type of release as needed. As of the writing of this article, photographers from more than 30 countries are using Easy Release. The software also implements a number of rules and restrictions that should provide an extra measure of reliability to the releases it generates.
In light of Apple’s well-publicized catchphrase "There’s an app for that," it probably comes as no surprise that ApplicationGap isn’t alone in the marketplace of apps intended to assist photographers dealing with model and property releases. The iTunes Store presently includes a number of apps ranging in price from free to $9.99. These include apps like VMRelease from Tomsuey Inc., a multidisciplinary design collective in New York; iRelease, produced by Fullframe Photographics, a commercial advertising photographic studio in Brisbane, Australia; mRelease, produced by being MEdia, LLC in Seattle, Washington; and Photographers Contract Maker, produced by Michael Shiffler (Michael the Maven) in Gilbert, Arizona.
Some organizations and companies have also released their own electronic model release apps. Corbis released a free app called the Corbis Contributor Gateway, which permits photographers to create electronic releases using Corbis’ standard forms, and to upload the signed releases directly to Corbis. More recently, the American Society of Media Photographers (ASMP) started distributing a free app for creating electronic releases. Named ASMP Releases, the app comes preloaded with ASMP’s standard and promo-only model and property release forms, as well as Getty’s model and property release forms.
While each app has its own approach to capturing and generating model and property releases, you should evaluate them for yourself to assess which you’re most comfortable using or which are most likely to work under the conditions where you’ll need to obtain model releases.
Regardless of which app you use, it’s also important to remember that any of the apps mentioned here are simply tools and not a substitute for legal advice. While many of the apps may include a standard form release, users will still need to ensure that the language of the release is consistent with the release they have been using or have been advised by an attorney to use. In the case of Getty or Corbis (or another agency that requires their contributors to use a certain form release), users will need to ensure that the language is identical to the required form.
It’s also important to check with the agencies that represent your work to determine if the agency has a list of approved apps for creating electronic model releases. Getty has indicated that it will accept electronic model releases from certain apps. Recently, iStockphoto announced that it would begin accepting electronic releases generated using approved applications (the announcement specifically identified Easy Release and VMRelease as approved applications).
Are Electronic Signatures In Your Future?
While there will always be skeptics who believe that the advent of the paperless office is as likely as the paperless bathroom, even the most resistant to change may find at some point that they have no alternative but to use electronic signatures if required by customers or vendors. Given the potential cost savings associated with paperwork reduction and the use of electronically signed and stored documents, it’s only a matter of time before companies stop accepting traditional paperwork. If you’re working with agencies that accept electronic releases, or if you simply want to stay ahead of the curve, you should invest the time to familiarize yourself with the use of electronic signatures now before the use of electronic signatures becomes mandatory.
Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Florida, and a professional photographer who has covered sporting events for more than a quarter-century. He can be reached at [email protected] or [email protected]