help!!!!

[JaededGeisha]

Thank you so much everyone, and especially Andy, for all the advice. I only released the images that I had approved and she knows just from past TFPs that I do not release all images as most photogs do. I made a major boo-boo sending her a release that does not clearly state that the images (negatives, positives & prints) are my sole property. I also did not clearly state that my images are not to be altered in manner without my written consent and that the images are to be used solely for promotional purposes. I got the release from ASMP. I just cannot believe this model's nerve... not only was I the photographer, i was the hairstylist and makeup artist. I guess this is what I get for trying to be nice and always being so accomodating. If anyone can send me a sample release that I can use to compare to my release, i'd really appreciate it. ONce again, thanks to everyone who shared info with me!!

[Andy_Pearlman]

You're making it sound like YOU messed up, and because of this, she somehow got rights she wouldn't have. Without some document affirming her right to do certain things with the images, she can't. Remind her of this. For example, just because you didn't say she couldn't let a magazine use them, doesn't mean she can. She (actually, the magazine) needs to get your explicit permission, and I'll be willing to bet that even if she gives them some images, they will ask for some kind of usage release or license from you. As for altering the images, well, that could be tough. If you were David LaChapelle you wouldn't want anyone reworking your stuff. OK, so you're not, but its still a gray area, and probably not worth the hassle. She might go in a retouch the images you sent her, more than you would, and maybe more than she should, but that's not really something you can fight her on. The best thing is to make them look perfect, and convince her that you did, and she should leave them alone. We run into this with art directors at clients all the time, and there's nothing we can do.

You can download my model loan form here, and use it as a starting point. It was never run by an attorney, but I used it for years and frankly, if the model signs it, she's put on notice that you're serious about these issues and I never had one create a problem. BTW, I would make a copy for her, that she could use to show photo labs who needed copyright authorization to make prints for her (more and more are asking, and that's good).

Regards,
Andy Pearlman
Andy Pearlman Studio

[JaededGeisha]

here's a copy of my release:


JAEDED GEISHA PHOTOGRAPHY RELEASE



In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received, I hereby grant to Mary Ann Joy Garcia- Dulay, her heirs, legal representatives, and assigns, those for whom Mary Ann Joy Garcia- Dulay is acting, and those acting with her authority and permission, the irrevocable and unrestricted right and permission to take, use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, in conjunction with my own or a fictitious name, or reproductions thereof in color or otherwise, made through any medium at her studios or elsewhere, and in any and all media now or hereafter known for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever. I also consent to the use of any published matter in conjunction therewith.

I hereby waive any right that I may have to inspect or approve the finished product or products and the advertising copy or other matter that may be used in connection therewith or the use to which it may be applied.

I hereby release, discharge, and agree to save harmless Mary Ann Joy Garica- Dulay, her heirs, legal representatives, and assigns, and all persons acting under her permission or authority or those for whom she is acting, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in the taking of said picture or in any subsequent processing thereof, as well as any publication thereof, including without limitation any claims for libel or violation of any right of publicity or privacy. I hereby warrant that I am of full age and have the right to contract in my own name.

I have read the above authorization, release, and agreement, prior to its execution, and I am fully familiar with the contents thereof. This release shall be binding upon me and my heirs, legal representatives, and assigns.


_______________________________ _____________________________________
date print name

______________________________ _ _____________________________________
address signature

_______________________________ _____________________________________
phone number

[JaededGeisha]

oh my god. this girl is unf*cking believable! here's a copy of an email she just sent me. please let me know of any links I can check california law regarding my rights as a photog.



Those are equally my images and I desire to have
and use them. You, as a photography do not solely own those images just
because you took them, that's why I sign a release allowing you to use
them. You may want to check your creative rights laws again. A model
owns the rights to her image as much as the photographer only if either
has copy written them or has been paid her agreed upon or average rate.
Any image taken on a TFP level is equal owned by the model and
photographer. I have had this issue once before with a photographer and
at the end I had to take him to court and won all my images and my
hourly wage, so believe me I know what I'm talking about. I like you
MaJoy and I believe we have a really good friendship and I don't want
these to turn into more than it has to but I'm only going to ask you for
all the images from that TFP shoot one more time.

[JaededGeisha]

hey andy. i was wondering if you know of any lawyers who would be able to advise me regarding this "model". i want to just make sure that she has no legal ownership of my images. if you check my last posting, you'll see a copy of her email. thanks in advance!

[Andy_Pearlman]

OK, first of all, I'm assuming that Mary Joy is YOU? (You ought to be using your real name in correspondence with us, not your login name). I was confused when you posted your model release.

Second, let me state from the start, that I am not a lawyer, and cannot give legal advice.

Now..... in your model release, it starts off with "In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received". What consideration did she receive? Did you specify that at the bottom of the release, just so you have some record of what compensation she received? Next, this is a standard model release. I think its a bit strong to expect such a release on a TFCD shoot, which is normally designed for each of you to get images to use in your respective portfolios. If you plan on actually publishing or licensing these images, you should specify some compensation to the model, that she agrees to, otherwise if it came to it, a judge might rule that it was an unfair contract and invalidate it. It doesn't have to really be fair, you could pay her as little as a dollar, but she has to get something. That said, she did get a CD of images, and you did get her signature on the model release (and you had someone witness it, right?) so as far as I can tell, its as valid a model release as you would need, ever. (Even if on the surface, it doesn't seem to be fair to some people). The question I have is how you got her to sign such a release, without any compensation? Also, note in the release, there is NOTHING about granting her any rights to use the images at all. That is also standard in a model release, because models don't typically get such permission in a model release (since its a release of her likeness, to you).

Now, about her email:

"Those are equally my images and I desire to have and use them."
No they're not, and you can't always get what you want.

"You, as a photography do not solely own those images just because you took them,"
Yes you do solely own them, and it IS just because you took them (send her to the www.copyright.gov website where she can read it for herself).

"that's why I sign a release allowing you to use them."
No you signed it either because you got something you considered to be of value (images for your portfolio) or you were stupid. Your release is covered by "rights of publicity" law, not copyright, they are not related.

"You may want to check your creative rights laws again. A model owns the rights to her image as much as the photographer only if either has copy written them or has been paid her agreed upon or average rate."

You can check if you want to, but there is no such thing as "creative rights laws", and you won't find anything in the law that discusses model's co-ownership of images, but you will find something that says ONLY the photographer owns the copyright (in the U.S.) unless he was an employee for the company that hired him at the time of the shoot, and that means ON PAYROLL - taxes, health & welfare benefits, employer owns the camera equipment, provides a place to work, etc. Also, since the copyright belongs to the photographer at the moment the shutter is pressed, how could the model ever claim ownership?

"Any image taken on a TFP level is equal owned by the model and photographer."
Again, nothing in the law or commercial code about "TFCD". Now I am not a lawyer (but I've been down a lot of these roads before) but there might be something in the law (commercial code) about implied transactions or fairness or something, but I just don't think she would have any basis for a case, considering she got a CD of images.

"I have had this issue once before with a photographer and
at the end I had to take him to court and won all my images and my
hourly wage, so believe me I know what I'm talking about."

I would go ahead and let her call her lawyer. I can't believe any lawyer would take such a case on contingency (and copyright issues are only handled in federal court, which is very expensive and can take years), nor do I believe she would pay a lawyer's rates to go to trial on a non-contingency basis. Depending on the state, she could try taking to you to small claims court, suing for breach of contract and non-payment issues, but that's a long-shot, with an easy out for you. First, you satisfied the contract by giving her a CD. (Again, it's not for the judge to decide if that's enough compensation, its what she agreed to when she signed the release). OR......convince the judge its really a copyright issue, and they'll throw it out and tell her to take it to federal court. I can see how, if she had hired you, that is actually PAID you, and you didn't deliver anything (like paying a wedding photographer who doesn't show up and keeps the deposit) where such a case in small claims court might end up with the judge awarding her the photos (but small claims can't award punitive damages, only actual damages). I don't even know if they could award money (if you had licensed them and made money from it), that itself might have to go to regular court, but since that didn't happen either, I don't see a problem for you here. And besides, how can she get her "hourly wage" when you never proposed payment, and she never received payment (in cash). Model fees are all over the place, she would have to justify her "hourly wage". (I would actually pay to see this in court, or maybe Court TV).


------------------
In answer to your last post, if you want a lawyer, be sure to get one experienced in Intellectual Property law, and "rights of publicity" and "rights of privacy". I have one here in LA, and I know you're in Northern California so the law would be the same, but my lawyer is not cheap (except for me!). She is a close friend (as well as a former model, so she knows the territory from both sides) so if I can, I will try to ask her a simplified version of this for you and let you know, but I may not get an answer for you for a couple days.

As I said, I would blow it off, and see if she follows through with the lawyer threat. If you get a "lawyer letter", call the law office and make sure the law firm really exists, and they really sent it. Its not beyond some people to fabric a lawyer, but its also illegal. I don't think lawyers can even write such a letter unless they make the plaintiff (her) a "client", which usually means some kind of retainer paid to the lawyer up front, though not always, especially if she has a lawyer in the family. Still, writing a letter is a far step from filing a lawsuit, and while you could pay a lawyer just to tell you where you stand (which might make you feel better), you could also wait and hire that same lawyer only when/if you really need it.

OK, one last thing: My usual plug - these are the kinds of issues you (and everyone who's stayed with this thread this long) need to learn about from some of the more professionl resources. There are professional groups, like ASMP, that have forums and FAQs, that can advise and guide you on a variety of issues in the photography business. And by the way, you should register those images with the copyright office ASAP. Register them as unpublished for now, unless any of them has already been published, in which case it needs to be registered seperately as published. (Links below). Send you registration in via Fedex 3 day, which will get it registered effective the day the CO receives it, rather than US Mail which takes much longer. FYI - Registration is not necessary for you to own the copyright, you got that when you clicked the shutter. What it will do is make it even harder (although it was already impossible) for her to claim any part of the copyright, and it will enable you to get punitive damages and lawyer's fees, if the images are infringed (used without permission) by her or anyone else. Here's some sources:

http://www.apanational.org/ (top advertisitng photogs, has two active Yahoogroup forums dealing with businss and digital issues, membership not required to participate in the forums)
http://www.editorialphoto.com/ ($50/yr membership required to participate in their forum, lots of free info on the website, the premier group for magazine and newspaper photographers)
http://www.asmp.org/ (long-time magazine and media photographer group, simialr to APA but less specific on advertising work)

http://www.copyright.gov/register/visual.html (find the short form VAS)
http://www.fotoquote.com/
http://www.loundy.org/commoncents/

Finally, the lesson here is to clarify all this up front. Specify what you are giving the model, and what you expect, for your TFCD shoots. If you want a complete, clear model release in exchange for doing a free shoot for her, that's not, IMO, really a TFCD, and that's where I think you're troubles started. If that's not what you intended, and not what you need, maybe modify (or offer to modify) the release she signed somehow, to narrow the scope of what you can do with the images to only your portfolio and website (there are "Test" or TFCD model releases or agreements out there, I don't have one). I think she sees this as an unfair advantage to you, and she may be right, but IMO, that does NOT mean she has any kind of legal case. Also, I don't know how well-connected she is, but you certainly don't want to go down the path of her bad-mouthing you to other models, or the community in general. Try to find a way to make her happy, but without giving up any rights she's not entitled to.

Anyway, that's my take. It seems that she has no respect for you or your work, so I really don't see how she could call you a friend.

Regards,
Andy Pearlman
Andy Pearlman Studio

[Andy_Pearlman]

A couple things, since I woke up this morning and re-read my last post... First, when she claims "a model owns the rights to her images as much as the photographer", the trick is how you define "image". Usually, we say the model owns the rights to her "likeness", which is what she licenses to you when she signs the release. Her likeness is not transferable (unless she could peel off her face) so all she can do is license the right to use to you. The actual "images", consisting of film or pixels, are physical, tangible, and transferrable, and belong to you solely as the creator/copyright holder. She may be thinking she owns the rights to her face, which is true, but when she says "images", she is wrong.

Second, regarding compensation. When you started this thread, I wasn't aware that you had gotten her to sign a full regular model release. I'm not sure why you thought that was appropriate for a TFCD, but you did, and she signed it (and why she did that I don't know). A word of advice here.... while you do want to cover yourself legally, and look out for your interests, you also want to be fair to people you work with, and that especially includes the models. I've shot hundreds of models in over 25 years of doing this, and I've never been sued, not did I have any who had a problem with what I shot, or how I used it. I don't mind showing the models everything we shoot, and pointing out what they need to improve, but if I don't like something, or they really don't like something, I won't use it. Your model here might not know you well enough to trust you, so seeing those outtake images may be her re-assurance that they really are bad, and that you won't use them to humiliate her. This is a trust-based business on many levels, and without that you're not in the business.

Regards,
Andy Pearlman
Andy Pearlman Studio

[LunarMuun]

[ QUOTE ]
You photographers do more than shooting. You buy equipment, you plan, you time, execute, photshop, pay for CDs, and mail them.

[/ QUOTE ]

*tears surface* Chris, dude, after this statement, your in my "Cool Book" [img]/ubbthreads/images/graemlins/grin.gif[/img] ...finally, somebody who "gets it"(thousands of dollars in equipment...thats just GOTTA mean something!) lol [img]/ubbthreads/images/graemlins/grin.gif[/img]

-Adam

[isaiahbrink]

Hey Andy, just wanted to get your two cents on my version of a model release, since you have boat loads of more experience than I do. Like yours, it has not been run by a lawyer. Thanks for your input.

Isaiah Brink

MODEL RELEASE
In consideration of Dollars ($ ,) receipt of which is acknowledged, I, do hereby irrevocably authorize Isaiah Matthew Brink, of 811 N. Ferger Ave. 93728, City of Fresno, County of Fresno, State of California, United States of America, his legal representatives, assigns, and those acting under his permission and on his authority, to copyright, publish, and use in all forms and media and all manners for advertising, trade, promotion, exhibition, or any other lawful purpose whatsoever, still, single, multiple or moving photographic portraits or pictures of me in which I may be included in whole or in part, or composite or distorted in character, or form, in conjunction with my own or a fictitious name, or reproduction thereof in color or otherwise derivative works made through any medium.
I do hereby waive any right that I may have to inspect or approve the finished product or the advertising or other copy that may be used in connection therewith or the use to which it may be applied.
I hereby release and agree to hold harmless Isaiah Matthew Brink, his legal representatives, assigns, and all persons acting under his permission or authority, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite for whether intentional or otherwise, that may occur or in any processing tending toward the completion of the finished product, unless it can be shown that they and the publication thereof where maliciously caused, produced, and publish solely for the purpose of subjecting me to conspicuous ridicules, scandal, reproach, scorn, and indignity.
I do hereby warrant that I am of full legal age and have every right to contact in my own name in the above regard. Further, I have read the above authorization and release, prior to its execution, and I am fully familiar with the contents thereof.


Witness: Signed: .

Address: Address: .

Date: ,2005