Though the modeling industry is widely known as a grueling, cutthroat business with impossible standards of beauty and few chances for success, those models that do make the grade enjoy extremely lucrative careers. It’s no secret that Giselle banks more bucks than her football-tossing husband, despite Brady’s contract and endorsement deals. To the general public, it seems like very little work for quite a lot of pay, and in the case of successful models that can often be true. But models are also widely susceptible to financial losses, particularly those that don’t stay abreast of their rights when dealing with photographers, labels, and agencies.
Consider the following example: a model signs a contract to participate in a fashion campaign. Her contract involves not only the fashion company she’s working for but a separate agreement with the photographer she’s working with, who asked her to sign a model release. The contract stated that the images produced for the fashion campaign would be used for approximately one year, but the model recently visited one of the company’s stores and realized that her photo is still being used even two years later. Since her livelihood is based on the use of her photos in fashion campaigns and magazines, the model is understandably upset. Shouldn’t she be paid for the continued use of her image? Wouldn’t she have been asked to authorize the use of her photo if they intended to use it for longer than originally agreed upon? Does she have any recourse in recovering profits from the use of her image?
The answers to these questions hinge on the agreement the model made with her photographer, and the agreement the photographer made with the fashion company. It’s quite a complicated issue that we’ve touched on before, so this time we’ll be exploring the answer in a two-part blog post.
The need for a model release and its requirements can be useful guidance for any publishers and producers of media in all its forms – advertisements, magazines, newspapers, films, television programs, and websites. Anyone who deals in the likenesses of others should be informed of the laws behind model releases.
The Reasons Behind the Model Release
Generally speaking, a photographer owns the copyright in a photo the moment he releases the shutter. According to U.S. copyright law, this gives the photographer certain exclusive rights to the photo: he can reproduce the photo at his will, he can license the use of the photo, and he can benefit from the sale of the photo, among other rights. But the photographer’s rights become a little more complex when the photo involves the image and likeness of another person – at that point, the rights of the person being photographed are triggered, all of which turn on an expectation to the right of privacy.
A photographer cannot simply take a photo of a model and use that image to his benefit – he must first receive permission and consent from the person being photographed before he gains any kind of rights in the photo. This was illustrated in a landmark case against Hustler Magazine in the 1980s, which stated that “Any person who knowingly uses another’s name, photograph, or likeness … without such person’s prior consent, or in the case of a minor, the consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.” The need for consent, therefore, draws on the person’s knowledge of how a photo will be used, which turns on a person’s fundamental right to an expectation of privacy. And should a model’s expectation of privacy be violated, the photographer responsible has committed a tort, and is therefore exposed to a lawsuit and potentially liable for damages.
The four distinct factors related to the right to privacy are:
- Intrusion upon Seclusion or Solitude or into Private Affairs
- Publication of Private Facts
- False Light
- Commercial Appropriation / Misappropriation of Name and Likeness
With respect to an agreement between a model and a photographer, the two tenets most concerning are false light and commercial appropriation and misappropriation. But in our particular example, we need only explore the commercial misappropriation tenet to understand why our photographer was wise to insist on a model release.
The Restatement of Torts defines commercial appropriation/misappropriation of name or likeness as “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.” This doesn’t necessarily mean that a photographer can be sued for merely selling a photo; oftentimes, the “commercial” use of a photograph hinges on whether the photograph was used for advertising purposes, as it was in our example here. Using someone’s photo in an advertisement suggests that the subject is endorsing a product or service – and unless consent was obtained, the subject has thus been commercially exploited. If a photographer intends to sell a model’s photo for advertising purposes, it’s important to obtain a model release beforehand.
What Should Your Model Release Cover?
When drafting a model release, one should consider three important factors: the purpose of the use, the nature of the use, and the duration of the use.
When dealing with photographers, models need to take care in negotiating the points of the contract if they want to preserve certain rights. A photographer will often expect unlimited use of the photograph in all capacities, whether commercial or editorial, and a model may not want to hand over such sweeping rights that could result in a diminished earning capacity.
Purpose of a model release
What will the pictures be used for? When signing a model release, a model needs to take care that the purpose for use is very specific. Will the photographer use these images in a gallery show, for potential sale to an interested buyer? Are the photos in question going to be used for a specific advertisement or fashion campaign, or does the photographer intend to use the photo for several campaigns?
Whatever the intended use, the photographer needs to take care that he reserves his right to use the photo as he wishes. Likewise, the model can further protect herself by insisting on a provision that requires the photographer to obtain her consent before using the image in any way not previously delineated in their agreement.
Nature of Use
The nature of the use of the image turns on the means by which the photo will be distributed. If a release provides for unlimited use in all media, a photographer should be safe publishing images regardless of the delivery method. However, the release should not be silent on how the images will be used, but rather specific: if a photographer intends to later publish the photo in his online portfolio, use it in a stock photo catalog, or print it as an advertisement of his services, he should say so.
In today’s digital age, many photos are also manipulated. Programs like Photoshop sometimes significantly alter the image of a model and in some instances, depict the model in a false light. Many models, especially those who have gathered a significant public following, have openly opposed the doctoring of their images to fit certain standards of beauty. If a model opposes digital manipulation of images, the model release should specifically address that. A model who validly consents to unlimited alterations may be extremely offended at the product of the manipulation.
Duration of Use
Finally, photographers may want to consider the duration of use as another point of negotiation in drafting model releases, and this consideration is even more important for models. The photographer will obviously prefer use of the images for an unlimited duration, meaning he will be able to sell, publish, or advertise with a model’s photo until the end of time. And most standard releases will grant these unending rights unless a model takes care to stipulate the duration of the use. A release could provide that the use of images will not continue past a certain date, limiting the use of the image to a specific term.
Model release and work-for-hire agreements
It’s clear that it behooves both model and photographer to specifically state the purpose, nature, and duration of the use of an image. But how is their agreement affected when the model and photographer were hired specifically by a company to produce a work-for-hire? We’ll continue our discussion in Part 2 next week.
We would like to hear about your experiences in using, or not using, model releases. Just add them in the comments section below.
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.