Model Release Form Question

[ricktas]

In the end, what each and everyone of us wants in a contract, as to what conditions of use, who owns what, how much, etc is our own decisions. There is no perfect contract that covers all of these. Yes you can get generic basic contracts on the net from a range of places, some of which may have been looked over by a copyright lawyer, or other lawyer, some will not have been.

Whilst in the vast majority of cases, parties to a contract abide by it, and it is never tested in Court, it is good to ensure your specific contract is well written, with wording that is unambiguous, is not breaching Law/ You cannot contract out of the laws of Australia - how often do we see companies in court for breaching fair trading cause they had a sign that said they would not refund/exchange? Just cause you have sign you cannot cease to abide by the law. Having a good contract just in case you end up with that one client, who decides they want to dispute the terms, is a good start. It is best to be well prepared with a good contract wording to start with, than to have to argue in court the meaning of a sentence. Most of us will never end up in this situation, but there is always someone who does.

So as I said at the beginning, if you are going to write your own contract, or change a pre-existing one, make sure you have it worded well (legally) such that it will not be picked apart in court. There are probably thousands of variations of photographic contracts out there, some will be good, others less so. Why risk ending up having to pay compensation etc, simply cause a sentence in your contract was argued to be ambiguous, or not allowed under Law.

The other thing is professionalism and planning. If you act professionally (even if you are not a professional photographer), if you communicate with your clients well, and ensure past clients are always welcome to contact you, then if you keep those communication lines open, are honest and act in good faith at all times, you lessen your chances of being held legally accountable. In the end the contract is about 5 minutes of what (for a wedding) can be 40 hours or more of work. Even with a badly worded contract your chances of ending up with an issue are low, if you adhere to being professional, and act within the spirit of the contract.

In some states you are required to explain major points of any contract, thus for domestic portraiture you need to also tell the client that they own copyright, and that you are seeking to regain that, in the contract, not just have it written as a clause. But are you going to get in trouble if you don't, most likely not.

All we are doing, on an internet forum, is making you aware of what can happen (worst case scenario) and making sure you understand what is required to ensure a contract is well worded and sound. What you choose to do with all this information is your choice, cause you, as a signatory to the contract are legally responsible to uphold it, not us. So it is in your best interest that it is worded well.

I suppose in the end you have to ask yourself, are you 100% positive that your contract, in your words, is good enough for a judge,magistrate and lawyers, not to pick to bits and get you on a technicality? Cause if there is one, they will! But if you are 100% happy with the wording of your contract, go for it!

[ricktas]

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

See the photographer could then argue cause they left the windows/curtains open, they were being exhibitionist and not seeking privacy. When it says things not ordinarily done in public, this refers to private spaces, like toilets etc, with the door shut. So if I photographed from the street cause they where having sex in their backyard in full view of the street, they cannot expect privacy. If they were having sex in their backyard with a 10 foot fence around them, and I took photos through a small crack in that fence, then they could have reasonably expected privacy. But again, do you want to get into court and have to argue that out with their legal team etc?

[Hamster]

Yep, agreed Rick. Which is why the path I've already decided to go is the common sense, integrity and professionalism route rather than the form signing route. When I started the thread it was with a view to finding out if the was a relatively simple way of putting a few legally binding conditions in place, but since it's not "relatively simple" enough, and in my situation it's not that big a deal, I will stick with the above. Plus I like @Dina's approach and should someone want to licence something commercially I'll give my model a shout and see if she wants to make some money. If things ever get serious I'll add in a lawyer generated contract/release for future work, but that certainly isn't an issue now, and is unlikely to ever be.

As for you boys and your Bigmas. Where you point them and at who is between you, your conscience and your lawyer. "Honest guv, there was a lesser spotted tree warbler between me and your client"

[William W]

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

I agree with Rick’s answer re the word “commissioned” in that Act.

I also agree that it is a poor business choice to self-amend contracts or Model Releases found on the WWW.

*

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.

Yes a signed Model Release Form is my advice for all such work be it TFP or otherwise.

*

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.

and

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

I do.

I wouldn’t and do not use the template form that you cited. I suggest that you do not either.

At the bottom of that template is clearly advises that it is a generic form and to seek professional, legal advice to address your specific circumstances.

Our Model Releases are tailored to suit our requirements and place conditions on our usage. We find those conditions neither cumbersome nor restrictive. And suitable restrictions on (your) usage would address the concerns that you perceive prospective models will have.

Another consideration is one’s experience and the ability to show that to a prospect as one’s track record – you might not have that at the moment so quelling the Prospect's fears might best be tempered with a conditional usage Model Release.

Apropos the point about Solicitors speaking a different language -I have not found that to be the case. I have found that a good, experienced Contracts’ Solicitor will act upon clear and precise instructions provided to them and come up with a non verbose and very tight Contract and Model Release Form.

Just to pick a small point about words and usage – to simply highlight a point about why it a poor business choice to self-amend legal documents:

All written contracts are in fact: “verbal”.

The differentiation that you were probably seeking was that which is between an “oral” contract and a “written” contract. Although that is just a small point made on a casual forum, such a slip might be more costly to you if you choose the wrong word(s) to use in self-made or self-amened contracts.

WW

[TeamGlenny]

I wonder if things maybe got misinterpreted in this thread.

Forgive me for my two cents, and I'm not a pro, but I am very interested in copyright and photography.

Firstly, ownership of copyright in the commission of a photo shoot.

I agree that if a photog is commissioned to do a shoot that is considered to be for private or domestic purposes, that is they are requested to do some portraiture, a wedding, birthday party etc the copyright is with the commissioner:

Exceptions
There are several exceptions to the general principle stating that the author of a work or the maker of a subject-matter other than work owns copyright:
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. - See more at: http://www.artslaw.com.au/info-sheet....xArtCxu8.dpuf

However, from the beginning, it was the photog approaching someone and the photog commissioning them, that is either paying them in cash, TFP, goodwill or otherwise. In this instance, copyright remains with the author or creator of said work, with or without a model release:

Ownership of copyright:
General principle
Generally, the author of a literary, dramatic, musical or artistic work owns copyright in the work.
Generally, the maker of a film, a sound recording, or a television or sound broadcast owns the copyright.
- See more at: http://www.artslaw.com.au/info-sheet....xArtCxu8.dpuf

Unless copyright is transferred by written agreement - this can occur both ways such as requesting a wedding shoot that the copyright is transferred to the photog by explicit agreement:

Contracts affecting ownership
The general principle as well as the exceptions can be modified by agreement. It is good practice to have written agreements with all the contributors involved in your publication project to ensure copyright ownership is clearly determined.
- See more at: http://www.artslaw.com.au/info-sheet....xArtCxu8.dpuf


But lets be clear - providing it is in/from a public space a photog can take photos of someone with or without permission and as creators of that work a photog could then make a book of those people and sell it without needing permission or a model release (though there is risk of defamation or similar if publishing a book of say "Sydney's Fattest Arses"):

Photographing people
There are no publicity or personality rights in Australia, and there is no right to privacy that protects a person’s image. Existing privacy laws are more concerned with storage and management of personal information and are of limited relevance to the present issue.
- See more at: http://www.artslaw.com.au/info-sheet....eWfkfGOL.dpuf

Now that you have taken your photographs you need to be aware that their use or publication may also be illegal when carried out in a certain fashion. For example, the subject of a photograph may seek an injunction to stop the publication of photographs that are indecent, offensive or demeaning - See more at: http://www.artslaw.com.au/info-sheet....eWfkfGOL.dpuf

Almost there because now we're getting to the crux of it and asking someone to sign a model release which is required for the purpose of commercial photography. Note: even if you weren't shooting for commercial purposes it wouldn't be a bad idea to get a model release because who knows what opportunities come up:

Photographing people for a commercial purpose
If you are using your shots for a commercial purpose, such as for an advertising campaign, you should obtain a model release form signed by the subjects you are photographing to ensure you have authorisation to use their image to sell a product.
- See more at: http://www.artslaw.com.au/info-sheet...eWfkfGOL.dpuf\

I often see people confusing commercial photography as the photog makes money from selling the image which is not entirely accurate - it is about said image used for the commercial endorsement of a product.

The law of passing off and the Australian Consumer Law
Complications arise if your photographs are used for a "commercial purpose" and you don’t have consent from the persons in the photograph. "Commercial purpose" involves using the photograph to sell something other than the photograph itself. So if you have taken a photo of someone on the street for an advertising campaign and it appears that the person is endorsing the product or service (when in fact they do not), you may be liable.
- See more at: http://www.artslaw.com.au/info-sheet....GPu3TJlV.dpuf

So for that you definitely should have a model release. Artslaw also have an example model release, I myself do not not how good/bad/or otherwise it is:

http://www.artslaw.com.au/sample-agr...model-release/


So, in my opinion, to the Op's original question:

• You can take photographs of someone and you will own the copyright unless they commission you or you have an agreement to the contrary.
  
• You can make money off the image itself, say by selling it in a gallery, or by putting it in a book, providing it doesn't defame their character (and they have a character to defame) without a model release - though getting one would probably not be a bad idea
• If you want to offer the image for commercial purposes such as stock photos where there is the possibility the image could be used to sell a product or a service you need a model release. And in fact most online stock photo sites require model releases if there are people in photos that are identifiable.

My two cents, I'm not a pro, and while I read this stuff a lot you would do well to get proper legal advice if you are going to spin up a business.

More than happy to be corrected.

Team G

[William W]

A clarification comment stimulated by Team G post above:

Originally Posted by Hamster
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.’

Yes a signed Model Release Form is my advice for all such work be it TFP or otherwise.

*
There are two main reasons for my giving that as advice to the OP:

1. Although not totally future-proof it is very close.
The OP specifically mentions the situation should the images be valuable later. None of us has a crystal ball.

2. Perception is part of the reality.
If the Photographer has a packet of thirty nicely printed ‘Model Release Forms’ in the camera bag, (and a few completed from previous assignments) and I also implied that a new and upcoming business might include limitations on usage, then the Photographer will be way ahead of what might easily be interpreted as a fumbling buffoon attempting to explain what conditions will apply.

So, in addressing TeamGlenny's question regarding misinterpretation: I don't think that my response did - the question is essentially about best business practice and that's how I answered it.

WW

[TeamGlenny]

So, in addressing TeamGlenny's question regarding misinterpretation: I don't think that my response did
WW

Hi WW,

Please be assured I was not referring to your response, you obviously have much more experience in this area than I do (and I had to do a number of redrafts to try and make sure my facts didn't contradict themselves).

No my reference was more to the semantics of the photog commissioning a model, as opposed to was it the model commissioning the photog and ultimately where copyright ownership lay.

Team G

[ricktas]

You also have to be very careful with street photography. In that you take a lovely photo of a person on the street, but in the background is a large coca-cola sign. Incidentally at the time of shooting. You put that photo into a book, or publish it in some way. The viewer could perceive that the subject liked or endorsed coca-cola, which may not be the case. So whilst your intentions were not commercial, by association and photo elements, you have created that link.

Chances are you would win in court, but do you want to pay the legal fees to argue your case? Remember NSW is the most litigious place in the world. Yep NSW has a higher rate of suing, than states of the USA.

[William W]

. . . Please be assured I was not referring to your response . . . etcetera

No need to reassure me, but very kind of you to consider doing so.

I did not misinterpret your commentary.

If there is any error it is mine, so sorry for causing you any concern.

I read your very well researched, annotated and presented comments and used that as an hook to explain the rationale for my previous advice. Although I am not sure that the OP has read that advice, as no further comment has been forthcoming from him.

***

I was not actually directly commenting on the content of your post; but now I shall –

I think that you have in a nutshell “got it right” with the summary that you presented, but the point I was making is kind of like the conversation that I have had concerning the rules driving into round-a-bouts . . . it is one thing to know “the rules” but is often a poor choice to abide by them if the result will be a ‘prang’ with you being on the correct side of the law (prang = colloquial for Motor Vehicle Accident).

It’s just too much time effort and money: the same applies here.

It occurs to me that the OP wants to, or at least is thinking of starting a business – so the easy and safe and NON CONFRONTATIONAL path is usually the best to take in business.

On the other point that you make, I most likely do have more experience than you in this particular area – but note well that it was your several drafts and final commentary which stimulated me to further explain my opinion - and the combined effort of all contributors will hopefully assist he OP and also other readers.

WW

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You also have to be very careful with street photography. . . Remember NSW is the most litigious place in the world. Yep NSW has a higher rate of suing, than states of the USA.

Not sure who the “you” is to whom you refer- or if this is a general comment: the OP is in WA and Team G is in the ACT and I am in NSW.

In any case, I didn’t know that – so thank you.

I would like references if you could please supply: not because I am questioning the comment, but rather because I am interested in the statistics, especially as to WHAT TYPE OF litigation is most active. I guess that Workers Compensation Litigation might be in those stats ? ? ?

WW

[ricktas]

You = plural you..anyone who wants to know.

re litigation, just google 'is NSW the most litigious state'

[Hamster]

Although I am not sure that the OP has read that advice, as no further comment has been forthcoming from him.
WW

Yes, I read them (as acknowledged by the thanks). Sorry if I didn't do this fast enough but forum reading is usually reserved for when all the important stuff is done. No further comment needed really, it still boils down to, yes a model release is a good idea and getting a proper one from a lawyer is the way to go. All the clarification and comment around definitions etc just goes to supporting this.
I am not thinking of going professional, merely trying to find the best way to ensure no one feels aggrieved with any correct or incorrect future usage of the produced images and to, as you put it, future proof myself. Hopefully points made outside the topics of my original post will provide info to other members of the forum and hence are still of use to some and valuable contributions (e.g. refs to street photography).

[TeamGlenny]

I am not thinking of going professional, merely trying to find the best way to ensure no one feels aggrieved with any correct or incorrect future usage of the produced images and to, as you put it, future proof myself.

It's actually interesting (well I find it interesting cause of my copyright wonk) what can happen as a result of a model release and subsequently trying to sell the models image on stock photography site. Take for instance this article about incest and a girl marrying her father on news.com.au. It features a stock image of a young girl embracing an older man. And while the caption does acknowledge that the photo is sourced from ThinkStock:

Outlawed ... The father and daughter (not pictured here) would need to move interstate to avoid laws that ban adult incest. Source: ThinkStock

The actual (not pictured here) part was inserted after the article was originally published.

I'm sure that girl signed a model release for it to be permitted to be used for unknown purposes, but it doesn't necessarily mean she gives up her moral rights as a performer. So there is the potential that she feels her reputation is being damaged by being pictured in an article about incest, regardless of the statement it is stock imagery, she may be able to do something about it.

Short version? A model release is not necessarily a catch-all for any possible future use, but it is still a damn good idea regardless

Team G - who likes to think too much

[Hamster]

It's actually interesting (well I find it interesting cause of my copyright wonk) what can happen as a result of a model release and subsequently trying to sell the models image on stock photography site. Take for instance this article about incest and a girl marrying her father on news.com.au. It features a stock image of a young girl embracing an older man. And while the caption does acknowledge that the photo is sourced from ThinkStock:



The actual (not pictured here) part was inserted after the article was originally published.

I'm sure that girl signed a model release for it to be permitted to be used for unknown purposes, but it doesn't necessarily mean she gives up her moral rights as a performer. So there is the potential that she feels her reputation is being damaged by being pictured in an article about incest, regardless of the statement it is stock imagery, she may be able to do something about it.

Short version? A model release is not necessarily a catch-all for any possible future use, but it is still a damn good idea regardless

Team G - who likes to think too much

Yes, this is why I can understand a model being concerned about what she signs (or at least I would be if my modeling career ever takes off).
Contractually, it seems to me to be almost an impossibly thin line to walk such that a model's likeness is not exposed to some kind of inappropriate (in their eyes) use and a photographer can make money.

[William W]

. . . re litigation, just google 'is NSW the most litigious state'

Yes OK, thanks. I thought you might have had access to source documents, that's what I meant.

I did something like that within a few hours anyhow.

Also asked a couple of Solicitor friends. Seems that we uncovered that NSW has the highest divorce rate (as a % of Population) too, and the most bitterly fought legal cases in that genre . . . oh well . . .

WW

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Yes, I read them . . . No further comment needed really . . .

Thanks.

WW