Model Release Form Question

[Hamster]

I have had a search and I can't see my specific questions answered so I hope this is new and adding to the pool of knowledge.

The scenario is, I suggested that I take some pictures of an acquaintance, they get some pictures, I get to try out new things. So far so good.
Pictures are taken. I would like to make sure that these pictures are available to me to use commercially should someone, for example say, hey, that photo is great, let me pay you lots of money to use it in my international advertising campaign. Unlikely but ......
I would say that since I said "how about I take some pictures of you" that I haven't been "commissioned". Also the Arts Law link re copyright in the sticky above says
"Some commissioned works: If someone is paid to take or make a photograph, portrait or engraving for the private or domestic purposes of the person paying (the "commissioner"), for example wedding photographs, the commissioner owns copyright in the work even though the artist or photographer is not an employee.The commissioner owns copyright in a film or a sound recording made for remuneration or some other form of payment."
and I haven't been paid anything.

First question is, does commissioned mean some kind of payment has to occur? That's how it reads to me.

But irrespective of the technicalities of the word commissioned the model could claim otherwise later, and another model may want to go into a TFP arrangement with me, and so a model release form is the way to go.

The AIPP has a model release form which I could use (http://www.cpsinc.org.au/photographe...el_release.pdf).

OK, I change the wording from "I understand that I do not have any interest in the copyright to the photograph(s) norshall I receive any further payment." to "receive any payment" and it seems to be pretty good to go.

From my side, I'd like to make sure the model doesn't sell the images and when using them credits me (really, I'm not that fussed re credits right now, but lets say I am).
My question is, what if my model says, "hey I read something about a model suing a photographer for using a photo in an advert where she was depicted as having HIV, and there was another one about porn sites. This form you're giving me to sign says you can use this photo how you like."

I'd say she's got a point. So what assurances can I/do I give the model? Are all model releases the same and the model just has to take the risk? How do I respond to that question from the model? I can see how, from a non professional model's perspective this could be a bit scary and she might shy away from me coming at her with a model release form.

[ricktas]

'commissioned' does not relate to payment. Commissioned in this context, means asked to do, requested, contracted. Similar to "I was commissioned to clean my room'. It simply means someone has asked, requested, told you to do something and you agreed. Payment, monetary or otherwise would be a different clause in the contract.

What you do have to be careful about in changing the wording of a pre-existing contract is that you do not breach legislation by doing so. Things like 'the photographer retains copyright' can be an issue in Australia. Cause under the copyright act, domestic portraiture, copyright belongs to the person(s) who paid for the photo session, photos. So a photographer cannot 'retain' copyright, when it was not theirs to begin with.

If you are going to amend a pre-existing contract you probably need to seek the services of a copyright lawyer, to check it. And having a copyright lawyer you have been in contact with, means that if a model does sell the photos, you have someone already, to contact regarding any dispute that arises.

Once you start taking payments for photography and doing photoshoots for clients, remember you are classed as a business and subject to all business laws etc. It is amazing how often someone who calls themselves a 'hobby' photographer ends up with legal issues cause they do not seem themselves as professional photographers, but to the client, who contracted, paid and got photos, that is exactly what they see it as, a business arrangement.

[Hamster]

OK, so if I said "lets do some photos" I own the copyright and if she says "can you take some pictures of me" then she does. Like I say though, later on, either of those original statements can turn into a "he said she said" argument, so having a signed model release is the way to go. Plus many places won't even display a photo without this, since they can't be sure you're telling the truth when you say you own copyright etc.
It sounds like you're saying that taking an online model release form and altering the wording (if necessary) is not a good thing to do, yet everything I read says that grabbing a standard model release form is the way to go. I take your point re the wording of "retain" versus "transfer", and I've see another person talk about how copyright is ownership and licensing is usage, all good points. In my example where I say I asked if she wanted to do some shots I have the copyright and so the wording of that AIPP form is reasonable and would literally just be taking out the word "further". If I kept it as is (implying that she has already been paid) is it OK to use it then. Does this work because giving her files in a TFP arrangement counts as payment?
Still not a good idea? Does everyone on here who uses a model release form have their own bespoke and lawyer generated form? if so, do they have one that covers paid, unpaid, commissioned and non commissioned?

Anyone got any thoughts on the question re MY use of the photos and responding to worries that the model may have?

[ricktas]

OK, so if I said "lets do some photos" I own the copyright and if she says "can you take some pictures of me" then she does.

NO! Domestic Portraiture, under the Copyright ACT, the photos belong to the client. Now domestic is deemed portraiture that is not Commercial. So say you were doing them for a magazine, then the magazine is the client, they are commercial, so the contract would need to stipulate who owns what. But for domestic, the client owns copyright by default.

[Hamster]

NO! Domestic Portraiture, under the Copyright ACT, the photos belong to the client. Now domestic is deemed portraiture that is not Commercial. So say you were doing them for a magazine, then the magazine is the client, they are commercial, so the contract would need to stipulate who owns what. But for domestic, the client owns copyright by default.

Sorry, I don't understand this. Copyright is with the creator, except in some circumstances, one of those being when someone commissions work.

Some commissioned works: If someone is paid to take or make a photograph, portrait or engraving for the private or domestic purposes of the person paying (the "commissioner"), for example wedding photographs, the commissioner owns copyright in the work even though the artist or photographer is not an employee. The commissioner owns copyright in a film or a sound recording made for remuneration or some other form of payment.

If I say to you, "Hey Rick, you're a good looking bloke and I've got some new flash gear I want to try out. How about I take a few shots of you and I'll let you have the files afterwards.

You haven't commissioned me to do anything. There's no payment in monetary terms, but if you want to talk "other" payment then you've paid me in time for some prints, so you've commissioned me if anything. This is the "lets do some photos" scenario.
What part of this am I mis interpreting, because it sounds like you're saying that in this situation you STILL own the copyright of the shots I take of you.

[ricktas]

Which is why I said in my first post that if you are going to amend a pre-existing contract with your own words, seek the advice of a Copyright Lawyer. You need to be sure for you that your contract is worded correctly, such that you do not end up in a legal dilemna. Getting information from a forum is good, but if you end up in court, you cannot argue that 'someone on Ausphotography told me'. You need to get proper legal advice.

Re your scenario of me being a good looking bloke..I could sue you for that untruth alone . You need to note that verbal contracts if they can be proven, have been upheld in court. And yes in most instances you will not have an issue asking someone if you can take their photo, but you need just one person to dispute a verbal or written contract and your love of photography and $$ go flying out the door.

So again, if you are altering existing contracts, get legal advice.

[Hamster]

Thanks. I agree that a verbal agreement isn't really worth the paper it's written on, hence my wanting to sort out a model release and, really, the issue of whether something was truly commissioned or not is a moot point.

So is there a source of a suitable model release form I can use for commissioned, domestic work that leaves the copyright with the model, but limits their use and allows me to sell said images.
Can I use that AIPP one I linked to earlier if I don't alter it?
Again my question to all is, are you using an off the internet standard form, or a bespoke copyright lawyer created form that you paid for. I can see this being an interesting poll to set up....

[ameerat42]

...I agree that a verbal agreement isn't really worth the paper it's written on...

A good joke

Again my question to all is, are you using an off the internet standard form, or a bespoke copyright lawyer created form that you paid for. I can see this being an interesting poll to set up....

Interesting? What would it show?

Am.

[Hamster]

Interesting? What would it show?

Am.

Who is taking domestic/non commercial portraits and:
Has no idea a model release is a good idea
Knows the implications of not having a model release but doesn't care.
Uses a standard form off the net
Has got a copyright lawyer to draft them up a model release.

I'm not certain if this is his opinion, but I'm getting the vibe from Rick that his opinion is anything not drawn up by a lawyer is likely to not be good enough.

[DinaStudio]

@[COLOR=#CCCCCC] So what assurances can I/do I give the model?[/COLOR];

When we did TFP we usually said it our contract that none of the parties can sell the images or profit from them directly. This is portfolio only work.
When the opportunity came about to sell the images, we just contacted the model and said "Wonna make some money?". You discuss all the specific details at that point. It is much easier for the model to make the informed decision at the time.
Then you get your model to sign another release paper specific to the transaction and clearing you from any responsibility once the image is sold.
This is simple way.

The right way would be to get a layer.

Dina

[fillum]

Not my area of expertise by any stretch, but we's on the interwebs..., so...

I think you may be getting two things crossed...a contract for photographic services, and the model release. My understanding is that a model release is typically used where the photographer owns copyright but wants to use the images for commercial purposes. It is also my understanding that "commercial" under copyright law has a particular meaning that relates to promotion/endorsement, not merely about making money off the image. So if I take a photo of someone and I retain copyright I can sell that image but I can't use it to advertise a product. I can even sell it to a magazine (otherwise the 'paps' would be out of business). Obviously it's better to have a release in place for any usage to avoid 'misunderstandings' later.

The contract for photographic services should cover everything about the shoot including (but not limited to)...
- identification of the parties involved
- payment details
- deliverables (album, cd, etc)
- who gets copyright
- usage rights (for both photog and model)
- timeframes (for delivery etc)
- whatever else I've forgotten (basically anything that could turn into an argument later)
You could also include 'get out of jail' clauses that cover failure to deliver (sickness, equip failure, etc)...

Even though the contract may state that commercial use of the images is permitted, it's probably a good idea to get a separate model release form that you can submit when required, rather than send a copy of the contract which may contain details you don't want to make public.

Anyhoo, the 'take-away' from a thread like this is that this stuff can be extremely complex so you need to get 'proper' advice. Maybe some of the members here that regularly shoot TFP will be along to offer some details of their experience...



Cheers.

[ricktas]

if you are using one of the net, make sure you get an Australian sourced one (like the AIPP one), that has at least some possibility of being vetted by a copyright lawyer at some point. No use using a USA one cause their laws differ to ours and clauses may not be correct under Australian Law.

[Hamster]

You know what, I'd even say that AIPP one looks a bit suss. It says "description of date of photography", which I suspect should be "description AND date of photography"

Also "No changes to the terms of this model release are accepted unless agreed in writing by the photographer, his/her assignees or licensees or myself."

It says "or myself" not "and myself". So the photographer or model can agree in writing to a change by writing to him/herself and not involving the other party. But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law.

Plus the "I do not have any interest in the copyright" part sounds as flawed in its wording as one saying the photographer "retains the copyright" if the situation is that the model owns the copyright.

[ameerat42]

Can you please provide a link to this form so we may check the context of the excerpts.
Am.

[Hamster]

Can you please provide a link to this form so we may check the context of the excerpts.
Am.

A link is in the original post.

[ameerat42]

(Ta. Didn't see it.)

Well, you're right! It is an unfortunate document in regards clarity and therefore intention, ie, not just cumbersome.

Maybe there's a better one from them???

Am(not signing unless agreed to by me or myself or any other suitably confused party).

[ricktas]

Who is taking domestic/non commercial portraits and:
Has no idea a model release is a good idea
Knows the implications of not having a model release but doesn't care.
Uses a standard form off the net
Has got a copyright lawyer to draft them up a model release.

I'm not certain if this is his opinion, but I'm getting the vibe from Rick that his opinion is anything not drawn up by a lawyer is likely to not be good enough.

Not true. But if you are going to change who owns copyright etc, from what the Copyright Act has, then you need to cover your arse. I don't take portraits that I change copyright for. I tell my clients as per my contract that under the Copyright Act they own the copyright. I request usage rights to promote my photography, but that does not include posting them to AP or facebook etc. In fact I state that I will not post photos taken under contract onto forums or social media sites. So my contract is fairly standard as I am not trying to change anything in the Copyright Act. Some wedding photographers I know, specify that they are taking copyright back from the client and that they own copyright exclusively.

It all depends what you want to do, or how you want to use the photos.

Last week I took a pile of photos for a vet surgery. For their website. I have not used those photos anywhere and will not. They had me take them for them, for their website. That is what the contract states and they have the rights to use those photos on their website, brochures, emails or anything else they want to use them for. I will not use them at all. So my contract is fairly straight forward. I take them, the client owns them to do what they wish with.

[Mark L]

You know what, I'd even say that AIPP one looks a bit suss. It says "description of date of photography", which I suspect should be "description AND date of photography"

Also "No changes to the terms of this model release are accepted unless agreed in writing by the photographer, his/her assignees or licensees or myself."

It says "or myself" not "and myself". So the photographer or model can agree in writing to a change by writing to him/herself and not involving the other party. But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law.

Plus the "I do not have any interest in the copyright" part sounds as flawed in its wording as one saying the photographer "retains the copyright" if the situation is that the model owns the copyright.

And you know more about the law and how it relates to photography than them? Words are different in law than in forums.

- - - Updated - - -

(otherwise the 'paps' would be out of business).

They take photos from public space (generally). If I'm standing on a public road and see someone famous having sex in their bedroom (oops, forgot to close the curtain), I can pretty much do what I want with the photo. This has not much to to with the OP's question.

[Hamster]

And you know more about the law and how it relates to photography than them? Words are different in law than in forums.

Hence my comment
"But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law."

I work in a world where I translate my expertise into a form that the client can understand and use, unfortunately lawyers seem to work in a world of their own, deliberately created to confuse their clients, probably so they can charge extra for their continued translations.


Edit - Like you say this doesn't really relate to my original question, but this is the interwebs so I'm forced to point out that you may be incorrect with your second point.

The Summary Offences Act 1988 (NSW) outlines a number of circumstances where a person’s privacy must be respected. For example, it is an offence punishable by a fine or imprisonment to photographa person to provide sexual arousal or gratification if the person is undressed or engaged in a private act in circumstances where a reasonable person would reasonably expect to be afforded privacy, and he or she has not consented to being filmed. A private act includes using the toilet, bathing and engaging in sexual activities not ordinarily done in public. Similarly, the Surveillance Devices Act 1999 (Vic) and Surveillance Devices Act 1998 (WA) make it an offence to photograph a "private activity" without the consent of the subject. - See more at: http://www.artslaw.com.au/info-sheet...ts/#headingh33

[fillum]

This has not much to to with the OP's question.

Was response to Rick's comment in post #4 (although on re-reading I see it was a different sense of "commercial").


Cheers.