Walter left a great question on the “70’s are back” article yesterday.
“Is there a method by which a model can revoke the authorization they granted in an earlier release?”
Great question and one that we are frequently asked. With rare, very rare exceptions, a signed model release permitting use of a person’s image in a photo, which was not the product of fraud, coercion or duress, cannot be rescinded. If the release does not contain a time limitation on usage it may be valid forever. Generally speaking you would have better odds of putting Krazy Glue back in the tube the day after you fixed that broken plate than withdrawing written consent already given. With apologies to law school professors everywhere, I will now attempt to compress several classes of contract law into just a few paragraphs.
Assume for this discussion, that the release, contract or model voucher that was signed is in itself a valid and kosher document and the signor an adult. Here we go… A person must be acting with free will to sign an agreement in order for the agreement to be valid. Free will is generally assumed by the law if the document is signed. (Note: A Notary Public does not add legitimacy to the document’s contents but rather serves to confirm the identity of the signor or additional evidence that the person whose signature appears, “really” signed the document.) In order to rebut or “knock out” the assumption of validity, one would have to demonstrate that the signor was (pick one or more of the following): drunk, mentally incompetent, acting under coercion or duress, was defrauded (tricked) into signing, the agreement or that performing the agreement had become “impossible”.
There exists a very strong presumption against the person seeking to establish any of the above in a court room. Merely being drunk does not necessarily mean that the signer was unaware of what he/she was signing. Total inebriation to the extent that the person clearly had no idea what he or she was doing or even in what city they were in might suffice. Classic “duress” is typically described as having a loaded gun pointed at the signor’s head coupled with the threat of “sign or we kill you” or worse “sign or we shoot your dog”. Under those type circumstances, the signor’s true consent has clearly not been obtained.
The law requires a fairly low level of mental competence to sign a model release. A person suffering from Alzheimer’s disease might not meet that minimum as he/she may have no idea as the nature of the document or even be aware of the act of signing. Fraud is a particularly difficult thing to prove in real courtrooms. There is a higher level of proof required than in other types of civil cases to establish that the signer was reasonably deceived and “but for” that deception would never have signed the document. Sounds sexy but the bar is set very high by the Courts – intentionally so.
But let’s say a man represents himself to a model as a professional photographer shooting pictures on spec for his portfolio and website. Model is taken to a professional studio where shoot ensues with assistants, hair and make up people and all the trappings of a full-blown high budget shoot. A form release granting expansive usage rights is signed by model. Turns out “professional photographer” is really a part time plumber and full time registered sex offender. He then Photoshops nude bodies for use with the model’s face and sells the resulting porn to unsavory sites or publications. Model has a pretty good case in fraud. She reasonably relied on the representations made, the appearance of the circumstances and ‘but for’ the lies and deceptions above would never in a million years have signed the release. She thus has a valid basis to rescind the consent given by her and obtained under false pretenses.
The key thing to remember is that the legal presumption that a signed document is valid is essential for the day-to-day conduct of commerce and virtually all aspects of society. If that presumption did not exist and could not routinely be relied upon by each of us, every day, chaos would ensue. Every case is different and we could explore possible scenarios till the year 2525. Bottom line remains, if the document itself is “legal” and the consent validly obtained, legally and/or unilaterally rescinding that consent, is a very rare event indeed.
Edward C. Greenberg