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Model Release for paying client
Old 09-02-2005, 01:22 PM   #1 (permalink)
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I have been hired to shoot an artist which will be featured in a nationwide publication.
Are there any sources online which I may access to get the proper release for this type of job? And what type of release would be the proper one? I assume that I still retain copyright and will just allow the client to use the images for self-promotion only.
Any info would be appreciated.
Patrick N
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Re: Model Release for paying client
Old 09-02-2005, 02:12 PM   #2 (permalink)
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That's a big assumption!
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Invoice
Old 09-02-2005, 03:18 PM   #3 (permalink)
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You can use the invoice or contract to specify the client's rights. If you wish to sell or publish the image after the initial use, you might get the artist to sign a separate release. However, if you're selling it for editorial (journalistic) use you shouldn't need a release.

You have to be careful about signing separate releases from a commerical shoot. The invoice / contract usually trumps a separate non-paid release - at least that's what one court recently said.

If you're unsure about this, don't get a form off a web site. Consult a lawyer.

Bob

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first use the correct terminology
Old 09-02-2005, 04:30 PM   #4 (permalink)
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When you say, "proper release for this type of job" you are mixing apples and oranges. For a situtation like this, you specify a "license" in your invoice, allowing the publication to use the image one time only, or for whatever your agreement is. The word "release" is generally only used in connection with a model release, which, since this is editorial AND a story about the artist, is not necessary. (Celebs do not sign model releases for magazine use). If you think you might want to sell some prints later, for fine-art or gallery purposes, you would need a model release. If the artist is reluctant to sign a general release, you can always add language that narrows the scope of what you can do - be specific, use precise language and simple English.

Back to your invoice, remember as the photographer, you automatically own the copyright to the image as soon as you click the shutter. Unless you are an actual employee of the publication, they cannot assume they own it unless you sign a "Word for Hire" agreement before the shoot, or specifically transfer the copyright to them in some fashion. Many publications are attempting what's known in the industry as a "rights grab", to acquire images for re-purposing. Photographers need to resist this, since their livelihood comes from re-licensing those images themselves. (To be fair, most publishers do not try this, but you have to read their contracts if they have them, and be sure you know what you're signing).

One more thing... sometimes you might see the word "release" used in reference to a photograph. Lately I've seen it used with that "Release" that Maxim sends out to get permission from a photographer to run a model's image in their contest. ("Photographer releases Maxim from liability...."). That's actually an improper term for that, they're really asking for a "license".

To learn more about licensing and contracts, you can find some reources at the sites belonging to these two groups:

http://www.apanational.org/
http://www.editorialphoto.com/

And don't forget to register the images with the copyright office. If you send it in prior to the magazine's publication, you can register them as unpublished, which gives you the maximum protection. (Use Fedex 3-day, it gets it "received" the day they get it, even if you don't receive the confirmation for 6 months). http://www.copyright.gov/register/visual.html (find the short form VAS)

Regards,
Andy Pearlman
Andy Pearlman Studio
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Re: Model Release for paying client
Old 09-02-2005, 07:16 PM   #5 (permalink)
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Why would you say that? Copyright law vests the copyright and image ownership with the photographer, barring some extraordinary circumstances (unless of course you're in Canada, where its all backwards!). See my other post in this thread.

Regards,
Andy Pearlman
Andy Pearlman Studio
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Re: Model Release for paying client
Old 09-02-2005, 08:53 PM   #6 (permalink)
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While the "default" copyright rule is indeed that copyright belongs to the author/creator, any professional PR man or agent for any real "star" would have his/her own contract form which would explicity state that the images are NOT the property of the photographer, and that the photographer is simply working on a "work for hire" basis in exchange for payment.

Up-and-coming Stars are the product of intense & expensive corporate marketing nowdays, just like any other consumer product. Their marketers and investors don't just give away any of the rights to their product, especially not images of "stars" where the product IS the image. This is perfectly reasonable from their POV. If I was the star, I'd fire any agent who let some photographer own images of me & do Gawd-knows-what with them. SInce there are only a few stars and lots of photographers, I'm afraid we're not in a good bargaining position.

Of course, if YOU were some sort of famous portrait photographer, a star in you own right, then the balance of power would be more equal...
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Re: dealing with actors (long post)
Old 09-03-2005, 03:27 AM   #7 (permalink)
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First, I have to ask about your concept of the up-and-coming performer being bankrolled by "marketeers and investors". The question is, who is this conglomerate you refer to as "marketeers and investors", and what kind of "stars" are you thinking of? Someone like a Lindsey Lohan or Jessica Simpson? They may be incorporated for business purposes, but they don't have investors as a rule, and they work for whatever studio signs them for a particular project, and then move on to the next one. They have managers, who take a percentage of the talent's income for their compensation. If a manager believes in someone enough to invest in their career (which is very rare), they're certainly not going to overspend to buy out photo rights, when they should be spending money on acting lessons or recording demo tapes or living expenses. Usually beginning talent has to spend their own time and money on photos, lessons, and even hiring a publicist, before their career gets to the point that a decent manager would even be interested in them.

When a celebrity is photographed for a magazine, the magazine, not the management, is hiring the photographer, and at fairly modest rates, and normally getting one-time rights only. Traditionally the photographer makes more money, and in some cases his profit, by re-licensing the images to other magazines and in other countries. (There is a magazine here in LA that pays the photograper nothing, he does it only for access to the celebs and the resale potential of the images, and he gets some major celebs).

When a photographer photographs a celebrity for the celeb's own in-house PR use, the photographer licenses to the celebrity (or their management) only the rights they need to use the images for PR, which doesn't necessarily include publication rights. If the celeb wants to use an image for something else, say a magazine, or an endorsement for a product, the manufacturer of that product would negotiate with the photographer for the rights to use that photograph. Now it's possible that the celeb'smanagement would try to "buy out" the rights, but that would be very expensive from any decent, experienced photographer, generally unnecessary anyway, and just doesn't happen.

Now there are two situations where the photographer's re-licensing ability may be limited: First, there are some magazines, like Vanity Fair or Maxim, for example, that insist on owning the images to keep them out of the competition, or they have a very long embargo (can't license them for another use for one year for example). Whether the fee is enough to make it worthwhile to the photographer or not is a negotiation point, but let me remind you that you don't see a lot of brand-name celebrity photograpers working or Maxim or Stuff, and that's probably part of the reason. The second situation is if the photographer is hired by a production company to shoot promotional images related to a particular film, TV show or record album (CD), and the photographer's work becomes part of the packaging for the project. However, the fees can be very high, a copyright transfer may not necessarily take place, and the usage is still limited to situations that promote the project - the company doesn't take a shot of Tom Cruise out of context and use it for a purpose where there is no tie-in to the project.

So how do you define a real "star", as you say? If the person is a "star" they (or their management) are dealing with "star" photographers, who are not going to give up their copyright. Regarding your last comment, "if YOU were some sort of famous portrait photographer, a star in you own right, then the balance of power would be more equal": The truth is, the balance of power is usually pretty level all the way up. A mid-level photographer shoots mid-lever talent. A rookie, is probably not going to get the opportunity to photograph the kind of bankrolled "up and comer" (as you say) OR a top level celebrity that has that kind of power behind them. If this rising star was being bankrolled by a conglomerate, the conglomerate would hire a top photographer, who as I noted, would not give up the copyright. If they hired a photographer who would, they wouldn't be getting the "best" photographer, which seemingly would work against their goals. In other words, the photographer they would want to hire, would not agree to work on those terms, and the photographer who would work on those terms, would not be the photographer they need to make their talent a star.

BTW, one of the reasons celebs and their management seek out certain photographers, and don't try to claim the rights, is that they want, and expect, those photographers to use their contacts to get the celeb's images published as widely as possible, something which is often initiated by the publicist, and followed through by the phototgrapher. To accomplish this, photographers also seek out magazines to use the photos, and most turn some of their images over to photo syndication agencies for more expanded distribution, which they couldn't do if they gave up the rights to those images.

There is one other factor to mention, and that is the area of trust. First. the celebrity photo business is one that operates on a certain level of trust (to address your comment about the celebrity not wanting the phjotographer to sell the photos to inappropriate places): One of the reasons celebrities work with certain photographers is because they know and trust them not to place or license the images in publications that the celebrity would not want to be in. If an actress does a provacative or revealing image with a photographer like our own Jerry Avenaim, or Andy Pearlman, she can feel comfortable, by virtue of our reputation earned over time, (and a possible prior history, when the actor and photographer were both just starting out), in knowing that we're not dealing with magazines like "Celebrity Skin". Also, since we didn't have them sign a model release, our options are limited only to other magazines. Yes, once in a while a publicist ask a photographer to agree not to sell the images to specific publications, or type of publication, and maybe have them sign a document to that effect as a condition of doing the shoot. I've photographed people where they agreed to be photographed as long as we added the restriction, "no tabloids" when it comes to re-use, but it wasn't in writing. When I turned the photos over to my syndication agent, they put that restriction warning on all the slide mounts. Second, when dealing with celebrities, there is the issue of "kill rights", where the celebrity or their publicist or management, can review the images and indicate which ones they don't approve of, and the photographer is expected to not show those images to the publication, nor ever use them. Its all part of the trust thing and if you violate it, the word gets out and people are reluctant to work with you. (Of course the reverse is true: an actor who "kills" all the images - and it does happen - on successive shoots, may find it hard to find a photographer to shoot him).

Finally, I think you'd find, that if as you suggest, celebrities, especially "up and comers", and/or their management, walked into a shoot with a "work for hire" agreement, they'd quickly fade into obscurity because no one would photograph them (especially at the beginning of their career). I don't think there are more (good) photographers than stars (depends on how you define a star), but nonetheless, the stars don't get to be stars by not having their photos get published. LA is full of wanna-be actors and other talent, and most of them would do anything to get on the cover of a magazine. Making life difficult for photographers is not the way to do that.

OK, well that's all I can say on the subject (probably more than I've ever written). Maybe Jerry Avenaim will see this thread and make some comments as well.

Regards,
Andy Pearlman
Andy Pearlman Studio
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Re: dealing with actors (long post)
Old 09-04-2005, 11:32 PM   #8 (permalink)
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Andy,
Thank you so much for your detailed explanation.
It gives a lot of factors to take into consideration.
Would you suggest any good books that may have various types of contracts for photographers to use and refer to? I am getting more and more offers to shoot talent with representation. One music group which I shot a year ago just got signed onto a small label and they want me to shoot another session with them.
Any info is very appreciated.
Best,
Patrick N
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