The thing with model releases is that most of the stock agencies want you to use one of their own model release forms, or one drawn by a copyright lawyer. I have one provided by the stock agency I submit to, and it very clearly states that there is consideration, and leaves a space to fill out the amount of consideration. Don't forget that if there is a problem, the one who gets nailed is usually the stock agency, rather than the shallow pocketed photographer.
If you're submitting images to a stock agency, at the very least you should be offering the models some prints for their portfolio (TFP). If it's a large commercial shoot, or something that might end up being used in a format that could be embarrassing, then you better have an iron clad model release that spells out the possible uses, and whatever rights the model might have down the road.
The thing with model releases is that most of the stock agencies want you to use one of their own model release forms, or one drawn by a copyright lawyer. I have one provided by the stock agency I submit to, and it very clearly states that there is consideration, and leaves a space to fill out the amount of consideration. Don't forget that if there is a problem, the one who gets nailed is usually the stock agency, rather than the shallow pocketed photographer.
My understanding supports your position that it is usually the publisher of the image who usually ultimately responsible for ensuring that the necessary legal documents have been properly signed.
In Canada we have the famous case Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591 [Supreme Court Decision]
The respondent brought an action in civil liability against the appellants, a photographer and the publisher of a magazine, for taking and publishing, in a magazine dedicated to the arts, a photograph showing the respondent, then aged 17, sitting on the steps of a building. The photograph, which was taken in a public place, was published without the respondent’s consent. The trial judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally. The majority of the Court of Appeal affirmed this decision.
[emphasis added]
The young woman won her right to privacy, even though a photograph was taken from a public place in a public setting. The judges also found the amount of $2000 was high but within reasonable limits.
Had this same situation occurred in the U.S., I suspect she would have lost. Had this same situation happened in another province besides Quebec, I am not sure.
With regard to compensation, I pay by check (or cheque in Canada) so that I have a written record of the payment.
I also make a practice of photographing the model with two pieces of identification held close to her face. At least one piece of ID must include a picture.
Quote:
Originally Posted by David_Buzzard
If you're submitting images to a stock agency, at the very least you should be offering the models some prints for their portfolio (TFP). If it's a large commercial shoot, or something that might end up being used in a format that could be embarrassing, then you better have an iron clad model release that spells out the possible uses, and whatever rights the model might have down the road.
I agree with your point concerning providing the model with some images. And I agree with your comment about embarrassing.
It seems strange that if a model comes to us for images to add to their portfolio, a service we charge them for we have to turn around and pay them something for the model release to be binding.
I am no lawyer, I am not arguing with what has been stated I am just making an observation.
White Balance so easy, even our 5 year old can do it.- Melissa Strickland
In reality, you only pay models when they are modeling for you. If the model or client is paying you, then different story.
In essence, a model release is a contract where something is offered, something is accepted, and consideration is paid that allows the photographer or model or both to use the photographs. In my situation, the model release gives me a lot of latitude as to how and what I can use the photographs for and it allows the model to use a select number of photographs for promotion of her modeling services.
Situation A: You want to take photos of people to build your portfolio. You hire a model and begin shooting. You pay for the model and her release.
Situation B: A client wants pictures. As part of your practice, you have all clients sign a release that allows you to show their pictures to other clients. When she signs the contract, you have words in your contract that permit you to show your photographs of her to others. You don't pay her. She pays you as part of her hiring you.
As far as the release goes, the most important part is to recognize that one party (can be either the photographer or model) has offered something, and the opposite party has accepted and consideration (of some form) has been paid.
Contrast the prior situations with the following: I begin a new magazine called "Kevin" and I send you a copy in the mail for your enjoyment. Next month, I send you another copy of Kevin and send you a bill for your subscription. You correctly tell me to buzz off. While I might have offered the a magazine subscription to you, you never accepted the offer and there was never any consideration paid. You merely opened you mailbox and found a magazine sitting there. The key elements of the contract have not been realized.
Getting back to our situation, if you have a client, you don't have to pay the client to use her image providing its part of your offer:
The client agrees that 50% of the fees are due upon commencement of the photography session and that the remaining 50% are due upon presentation of the photographs. Moreover, the client agrees that the photographer may use the images to promote his business. blah blah blah.
You offer to photograph her for $X dollars and she agrees to pay you $X PLUS allows you use of the photographs for the promotion of your business. If she agrees to your offer, you have offer, acceptance, and consideration. You have a contract.
There's your model release. The client has agreed to the photo session and has agreed to allowing you to use the photographs for business purposes.
Note, with the fictional language used above, the photographer could not submit the photograph to a stock agency, because then it is for the purpose of increasing his revenue through stock sales as opposed to showing his skills and artistry through a demonstration of his work on his website. Moreover, he could not sell his image of her to a magazine without her permission. If she becomes famous, then other rules might apply. The key point is, the contract dictates how the photographs may be used.
Quebec uses the French Napoleonic legal system for it's civil courts, which is very much different from the English based Common Law codes that the rest of Canada uses, and which is at least the basic start of the US civil legal code. The French system of privacy laws is vastly different from the English and American. Remember when Princess Diana was killed in Paris? The first thing the French authorities did was throw all the press photographers on the scene (most of whom had nothing to do with the chase that killed her) into jail for invasion of privacy. That would never happen in the States or Anglo Canada. My understanding from 20+ years of press photography in Canada is that if you take a picture of someone who's in a public place (and by that I mean an area that is clearly visible or accessible by the public, even if it's private property), and publish it in a an editorial publication (generally accepted to be a publication with less than 70% advertising content), then you're good to go. If you use that image for a commercial use, then you better have a release.
If someone hires you to take their picture, then you have more of an onus to get a proper release, as you owe a stronger duty to a client than you do to a total stranger. Consideration could be as simple as a discount on the photography.
In the real world, most people who pose for pictures love to see them published, and most of the models who have contacted me from seeing their picture in a magazine or newspaper wanted to get a copy to send to their mother or something.
White Balance so easy, even our 5 year old can do it.- Melissa Strickland
thanks to all, never knew about the if they hire you thing...ie your services being considered valuable consideration.
i shoot homes for a realtors and i also do commercial shoots with people here and there.
i bill the ad agency and they bill the client, we are all working for the client, so i assume no additional valuable consideration is required for the release...?
same thing for working with a realtor, just a property release this time and no additional valuable consideration is required....?
Quebec uses the French Napoleonic legal system for it's civil courts, which is very much different from the English based Common Law codes that the rest of Canada uses, and which is at least the basic start of the US civil legal code. The French system of privacy laws is vastly different from the English and American. Remember when Princess Diana was killed in Paris? The first thing the French authorities did was throw all the press photographers on the scene (most of whom had nothing to do with the chase that killed her) into jail for invasion of privacy. That would never happen in the States or Anglo Canada. My understanding from 20+ years of press photography in Canada is that if you take a picture of someone who's in a public place (and by that I mean an area that is clearly visible or accessible by the public, even if it's private property), and publish it in a an editorial publication (generally accepted to be a publication with less than 70% advertising content), then you're good to go. If you use that image for a commercial use, then you better have a release.
I remember reading up on this stuff earlier as best I could. There are various articles by lawyers in Canada that fall on both sides of fence. Some argue, as David did, that Quebec is unique and distinctive, and thus the same set of circumstances in Alberta or British Columbia would result in a different outcome. Others have argued that the language used in the Supreme Court decision is somewhat vague and ambiguous, and thus all Canadian citizens might enjoy the same right to privacy. Given that the legal community is unable to provide certainty, I am not sure what to make of it.
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