| Greenberg Newsletters |
|
Page 7 of 8
April 28, 2008
NEW MODEL/PROPERTY RELEASE MYTHS
Photographers are inexplicably quick to rely on “legal” advice rendered by non-lawyers. I have yet to meet a photographer who would rely on a lawyer’s views regarding depth of field, or what size lens to use on which camera. Why shooters would risk their businesses, homes and futures by relying on non-professional advice has always escaped me. I have examined thousands upon thousands of photographs but a photo editor I am not. I have spoken and written on the subject of model releases innumerable times. I have litigated several hundred cases in several states, representing photographers, models, model agencies and others. You are, of course, free to ignore my advice. My wife does. There are, however, some”new myths” sharing space on the Internet with the older, more common fairy tales about releases all of which you are best off ignoring. Recently I was given some materials authored by non-lawyers regarding model releases and asked to comment on them in the class that I teach on “The Business and Law of Photography” in the Masters program at The School of Visual Arts. I confess that some of the non-legal advice out there shocked me. Really, I was almost flabbergasted. First off, remember that the requirement for model releases is in New York, California, Florida and many other states governed by statute. That means that whatever piece some photographer, author or “wannabe lawyer” has written which does not mention your state’s statute and the statutes of the states in which your images may appear is virtually worthless. The only thing about this issue that is “one size fits all” is you are always better off having a signed release in your pocket. If an image is used in the State of New York, the New York Civil Rights Law Sections 50, 51 require (under criminal penalty in some cases) that if the photo, portrait or likeness is to be used for trade or advertising purposes, a writing signed by the subject authorizing such use is required PERIOD. That writing may take the form of a voucher, release, contract, agreement or any other duly executed writing. I have attached Section 50. I will address the “new myths” now floating around and will intentionally not delve into the details of these myths lest they be rebroadcast and by so doing gain credibility. Again, state statutes and laws vary. I note that the “lay experts” don’t seem to know or mention that critical tidbit. “Orchestration” Huh? Some proffer the notion that the need for a model release may be dependant upon how much coordination goes into the shoot/shot. You are being told that whether “public space” is used may also 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 these “factors” have little to no relevance in a court when determining liability. For example: Michael Jordan crossing the intersection of 5th Ave. and 42nd Street in NYC in the midst of oh, say 500 people, photo taken and used to advertise or promote a product, service or organization without Mike’s written consent. I really, really hope Mike calls me. If Mike has endorsement contracts (I think he does) he might in addition to bringing an action under the Civil Rights Law, sue the shooter for interference with a contractual relationship or in some places, something lawyers like to call a “prima facie tort”. "Photographer/Subject Relationship” Irrelevant when determining whether the photographer, ad agency, client, stock agency, etc. has the legal right to disseminate, use or employ the image for trade or commercial purposes without the subject’s written consent. Real life example: bank asks its employees to remain after closing if they want to be included in advertising and promotional materials to be distributed to advertise and promote the bank. It is made clear that they have no obligation to hang around. Some 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 who never signed releases claimed violations of NY law. They won. More common scenarios: Photographer and model involved in personal relationship live together and/or married. Images taken - no releases obtained. Implied consent to use the images was clearly there. Both are willing participants in the shoot. No written, signed releases ever obtained. If the images are used for trade or commercial purposes sans release, photographer is in peril. We have had this exact set of facts at least a dozen times. Their nature of their relationship at the time of the shoot was irrelevant to the issue of liability. It might however, affect the amount of damages the model could recover. "Resonable Expectation of Privacy” This phrase is legal coin in the realm of the courtroom when talking about invasive police activity, taping private conversations without consent or whether evidence should be excluded as obtained in violation of the US Constitution. The phrase has neither meaning within the context of the New York Civil Rights Statutes nor many other equivalent state statutes which are addressed to the Right of Publicity or the statutory need for a written, executed release. Remember, applicable state statutes take precedence over anyone’s musings about what prior cases may or not show. Using the phrase does not of itself reflect an understanding of its meaning. "You Need Consideration” Some of the authors out there who would like you to buy their books proffer the notion that the model must get paid money and/or receive some tangible item or benefit in order for the release to be valid. WRONG. In New York for example, consideration is specifically not required. “Professional Models vs. Lay People” Liability is not dependant upon the livelihood of the subject. No mention is made of such “difference”. Models who earn income from modeling will likely recover more money than civilians because they can (more probably) demonstrate financial loss. I won’t get into the demeaning, defamatory type of cases here but just be aware of them. “Property Releases Aren’t Required By Law” Some have opined that there are no cases where the lack of a property release caused a shooter to be held liable - nonsense. I have been involved in more than a few cases where money changed hands due to the lack of a property release. There may be trademark and other legal considerations that don’t have anything to do with “releases” per se, but will get you sued nonetheless. Competent attorneys do not suggest that their clients pay real money to settle meritless lawsuits. Attorneys generate fees for themselves from litigation. In fact, many disreputable attorneys fail to suggest settlement to their clients because it takes bread out of the mouths of all the little attorneys at home. Some authors have suggested that spurious cases get settled all the time and therefore the need for a property release is never “determined”. This rational is laughable. Attorneys who have clients, who can lose, often suggest that those clients settle. I wonder how many of these authors have participated in trials, mediations or settlement discussions in real courthouses when these issues become real. Ad agencies, clients and others who actually write the checks with your name on them have determined that property releases are often required by their clients. That determination was made by well heeled, large staffs of lawyers. Those lawyers do not get paid if their clients get sued - they get fired. All the lawyer jokes in the world don’t stack up against this simple fact: if hundreds of lawyers representing your clients and your stock agents require property releases they must have a reason. You couldn’t get that many lawyers to agree on what day of the week it is. If it makes you feel better just assume that all the lawyers are stupid and wrong but if you want to make a living you need to satisfy their clients. Law students have plenty of time to ponder legal issues dancing on the heads of pins, you do not. Why then does this myth live on? First, 99% of all claims and filed lawsuits are not “reported”. That is to say that they are settled without the terms becoming public – either intentionally via a written agreement or because the result was not noteworthy to the press or public at large. Non-lawyers simply do not seem to know this. After all, unsourced anecdotes coming from fellow shooters are always more entertaining and persuasive than reading laws or listening to lawyers. If you see an article, pamphlet or book which purports to give authoritative advice about model or property releases, look for the following:
If one or more of the above is lacking, you risk your assets on the words of someone who may be unqualified to render (even) general legal advice. You would not likely risk your health on the word of someone unqualified or unlicensed. None of the lay geniuses out there will pay for your lawyer if you follow their advice, even if you win your case! As you may know, winning can be very expensive in our current legal system. Perhaps you have nothing better to do than be a guinea pig for someone without a license to practice law. All of this sturm und drang is avoidable by obtaining a signature(s) on a simple, one page document. Why tempt fate? In the time it takes to think about getting a release signed, you could have had it signed and had piece of mind... Edward C. Greenberg, PC 570 Lexington Ave. 17th Floor New York, NY 10022 (212) 697-8777
New York Civil Rights Sections Sec. 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. Sec. 51. Action for injunction and for damages. Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person`s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait or picture in whatever medium to any user of such name, portrait or picture, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him whichh e has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith. |
