Pixiq

Non-expert experts thrive on the Internet these days, perpetuating myths instead of facts. Photographers, prone to accept the unvetted, anecdotal experiences of their non-lawyer comrades, vacuum these myths up, generating even more business for lawyers. Ed’s wife says he should thank these non-experts for doling out advice; she wants a new car. What follows are some of the most common factoids—statements that may contain a germ of truth, but are in fact not facts, and are therefore likely to be misleading and deceptive.

• Factoid: “Most disputes regarding model release never go to court.” This factoid is intended to give you peace of mind. It shouldn’t. Let’s dissect the phrase “go to court.” If it means an actual trial to verdict, the statement is accurate. The reason why relatively few such cases are taken to verdict is that the law is so crystal clear that typically the only issue at play is not if there’s been a violation, but who is going to pay and how much. Clear cases get settled; settled cases do not, for the most part, become part of the public record. Unlike most lawsuits and most football games, the winners and losers in model release cases are fairly easy to predict and predictable results create settlements. Best estimates are that 95 percent of all cases of all types (including divorce, personal injury, etc.) are settled or ended without a trial.

• Factoid: “The need for a model release may be dependent upon how much coordination goes into the shot.” Not hardly. You are also told that whether public space is used for the photo may be a factor, as well as whether the subject is photographed in a controlled environment where access is restricted. In the state of New York and other jurisdictions these so-called factors have little to no relevance in court when determining liability. For example, say a photographer happens to see and photograph Michael Jordan crossing Fifth Avenue in New York City in the midst of, say, 500 people. He takes the picture, and it’s subsequently used to advertise or promote a product, service or organization—without Michael Jordan’s written consent. If Michael happens to have endorsement contracts, (we think he probably does) he might sue the photographer for interference with a contractual relationship, in addition to bringing a legal action under the Civil Rights Law—as anyone can.

• Factoid: “Some form of payment or tangible benefit must be received by the person in the photo in order for a release to be valid.” As the song goes, “it ain’t necessarily so.” In New York, for example, consideration is specifically not required. You do not have to give the model a print or even pay them a single dollar in order for the release to be in effect. You do need their signature on the release.

• Factoid: “You don’t need a release if the person isn’t a professional model.” Wrong. Liability is not dependant upon the job description listed in the subject’s tax return. Models who earn income from modeling will likely recover more money than civilians because they can probably demonstrate greater financial damages. But sometimes a civilian can collect far more than even a supermodel. An orthopedic surgeon who happens to be a team doctor for the New York Jets, and whose photo is employed without consent in an ad promoting a branded pain reliever, will likely recover far more money than virtually any professional model whose image was used without consent in the same type ad.

• Factoid: “Property releases aren’t required by law.” Trademark issues aside for the moment, maybe they are, and maybe they’re not. But you shouldn’t take the chance. Ed’s been involved in more than a few cases where money changed hands due to the lack of a property release. Location releases may also serve to protect a photographer by establishing his legal right to be at a given place at a given time for the purpose of creating certain imagery. In any event, and like it or not, most major stock and ad agencies require them. Overkill? Maybe. But it doesn’t matter. No property release, no money to you. Property release in hand, you get paid. Choose wisely grasshopper.

Case Studies

A Run on the Bank

A bank asks its employees to remain after closing if they want to be included in advertising materials to be distributed for the bank’s promotion. It is made clear that they have no obligation to hang around, and no releases are signed. Some employees choose to remain and participate in your standard everyday location shoot with a photographer, assistant, hair and makeup person, art director, and the all-important caterer. They pose, and the shoot takes several hours. Ads and promos come out. Some employees—having never signed anything expressing their consent—claim violations of NY law. They win.

Lesson: While the employees' behavior demonstrated consent, the statute specifically stated that written releases were required. A clearly written law trumps the impressions, assumptions, and beliefs of any photographer.