Perhaps no issue within the topic of Model Releases draws as many questions as the necessity to use “sensitive issue” model release forms. We suggest that such forms be used when the model is going to be employed in an image/ad/film/video etc. and will appear: nude, semi-nude, be portrayed as a drug addict, criminal, suffering from any number of illnesses such as depression, incontinence or as being HIV positive.
Many photographers, who require a signed, written model releases, may be making a potentially serious mistake by using a universal “one size fits all” release for all shoots regardless of the nature of the work. As we strongly suggest in our book The Copyright Zone and elsewhere, if the model is to be portrayed in what might be construed as a negative or unflattering manner, or partially unclothed or even unclothed completely (known as “nude”), the release employed should specifically so state. It can be in plain English, but should be as clear and specific as possible. The releases and contracts signed by actors in Adult “XXX” films are necessarily very explicit – pun intended – as to what that actor will do and how he/she will be portrayed in the finished product. An adult can agree in writing to be portrayed as for example, a serial killer. If such were not the case the networks would have to cancel about two-dozen shows.
Now comes HBO producer of the television series “Westworld”. As the NY Post reports in an article (linked here), HBO (or its casting agent) is requiring extras on the program to sign “waivers” acknowledging that they will be portrayed performing among other things, specific graphic sex acts while nude. According to the Post the actors will receive $600 per day rather than the standard $157 union rate ordinarily paid to extras. The Screen Actor’s Guild (SAG) is protesting the use of such waivers apparently claiming that their union members do not understand the full import of such waivers. (We offer no opinion on that dispute).
For your purposes the significance of this HBO policy is to highlight the need for having any model (or actor) specifically state and sign on to the manner in which that model/actor will be portrayed so as to avoid disputes and litigation in the future. This is simply a prudent business practice for all filmmakers, photographers, artists and illustrators. Don’t be shy about such releases. If the model is to be portrayed in the ad/film/program as a heroin addict who dabbles in serial killing the release should specifically so state. According the reportage in the NY Post, the HBO waiver is pretty darn explicit. Maybe their lawyers read our book.
Final note, in situations where children are portrayed in movies or television such as rape victims or rapists, the studio will typically obtain the written consent of a judge to make such use of a child in a disparaging manner. A parent may not have the authority to permit an 8-year-old child to be used in a disparaging or libelous manner and the issuance of such permission could serve as a basis for a claim against that parent for child abuse or neglect. Also it may, at the very least, be reason enough for the non-signing parent to seek sole custody of the child in a divorce scenario or Family Court action, as the signing parent might then be easily judged as an “unfit parent”.