As those of you who have read our book “The Copyright Zone” or seen our seminars on the subject of model releases well know, we strongly urge all photographers to get a signed, written model release all of the time, always if at all possible. We write for and speak to models (and model agencies) just as often and make a parallel suggestion to them – do not leave any shoot without having signed a clear and unambiguous model release permitting the specified uses that the model or the model’s agency has agreed to. If there are any doubts about the existence or contents of a written release, contract, agreement or voucher specifying the permitted uses of the model’s image we advise models to immediately contact their model agent (if they have one) and sign nothing until everyone is on the same page – literally and figuratively.
Photographers please take note; if you hire a model through a modeling agency, state the usage, and then think if you have the model sign a blanket release, you now have blanket rights, think again. This mistaken tactic has cost many photographers a lot of money.
If an image of a person is used in the State of New York for the purposes of the sale or promotion of any goods, services, promotion of an entity, trade, commercial or branding purposes without that person’s written consent the user of such image is in violation of the New York Civil Rights Law. You don’t have to live or work in New York; it’s about the image being used in New York in any way. Section 50 makes such use a misdemeanor and section 51 permits the subject to sue for damages. Damages include compensatory damages and punitive damages if the use is “knowing” (Your lawyer will “know” this term and it’s meaning). Other states – California in particular – have similar laws. Suing in New York or California is advantageous in that the judges are familiar with these types of issues and cases. So seeing an infringed photo being used in California or New York is ideal. Litigation in other states “may” still be as profitable, but your mileage may vary.
Many reputable model agencies “police” the uses of their models’ images in the same manners as photographers check for copyright infringements of their images. The burden to find any unauthorized uses of a model’s image typically falls on the model however. Models – whether represented by an agency or not – are like photographers in that they are in their own businesses. The ultimate and best protection that a model can provide for him/herself is to be vigilant and search the web for his/her images.
Models should keep your eyes open and let your friends know about the ads you have done. Like photographers, models often help each other out by seeing a questionable use and calling a fellow model to let them know about it. So if you are a model (or just the subject of a photo) what are the “do’s” and “don’ts” when you have discovered what appears to be an unauthorized use of your image?
- Get all evidence of the use. Buy the product if your image is on the packaging or used on the product itself. Buy several copies of the magazine or newspaper containing your image. Use a credit card for the purchases. Print out screen shots (with the date of the capture clearly showing) of the use if it is on the web.
- If the product is for sale on the web and/or in brick and mortar stores, buy it ASAP on line and in the store(s).
- If the item is for sale in say CVS you can bet it’s also available at Walgreens, WalMart, Kmart, and all the other Marts. Go shopping, preferably with a companion who can serve as a witness if needed. Buy the item in several different stores in your locale. If you live in say Texas, but have an agent, relative or friend who lives in NY State, who can purchase the item in NY, then obviously have them do so. Buy it wherever you can find it. Call that relative you haven’t talked to for the past ten Thanksgiving, ever since the cranberry incidence. Make up and have then make a shopping run for you. And you need not be a resident of New York State to sue in New York using New York law so long as there was trade or commercial use of the image(s) in the state of New York.
- Take photos of the item on the shelf in the store or if it’s on an in-store poster or display, photograph that use as well. If it is on say a poster, ask a store employee or manager to take a picture of you and the poster. Tell the employee/manager/owner that the photo is for your mom or dad. Look happy about it all, as you should be because likely there’s a payday ahead for you.
- If the image appears in/on an in store brochure take some brochures with you – you and your lawyer will need them. In other words, capture, photograph, gather or acquire whatever you can for evidence. Don’t depend on you or someone else getting it later. To paraphrase Yoda, there is no later, there is only now.
- If the image was licensed via a current or former model agency contact them immediately. Find out if it has been “re-licensed” by that agency without your consent. IF such is the case immediately request a copy of all paperwork and proof of payment of any such “re-use” or new license. Say nothing more until you are in receipt of those papers. Then seek the council of your lawyer if you feel the paperwork or the situation doesn’t pass the smell test for you.
- Do contact your model agent. If it had nothing to do with this transaction make them aware of it, instruct them in writing to do nothing unless instructed by you or your lawyer in writing. Gather all evidence and contact an attorney who has handled and litigated these type cases.
- A copy of the model release should be retained forever. This advice goes for both photographers and models. If your accountant tells you to toss it out because it is say 6 years old, politely ignore the advice. Unauthorized use of photos decades old is extremely common.
- Don’t post anything on social media about the unauthorized use. Nothing, nowhere, no exceptions. If the urge to share with your peeps starts to get to you, have someone hide your phone or computer. Such communications are not privileged and will be used against you as any conversations you may have with a fellow model. Real life example: Ed’s client received a six-figure settlement on a case where the model disclosed to a friend that “payment of $20,000 would be like hitting Lotto”. Had the attorney on the other side have known of that conversation his/her client would have offered much, much less to settle the case and Ed’s client would have accepted much less money than he/she actually received. Like they said in WWII, “Loose Lips Sinks Ships”. In these cases, loose lips sink your case.
- Do not contact the infringer. This seems to be everyone’s first (and bad) impulse. Doing so will give it a chance the infringer to “circle the wagons” and destroy evidence. Sounds dramatic huh? Happens every day. Does a day go by when someone or some company has not been accused of deleting e-mails or claimed it has been hacked or that some or all of its records have been erased, lost or destroyed? Newsflash – many of those people are lying.
- Do not send a bill in any amount to the infringer nor let your agent do so on your behalf unless and until it is issued in conjunction with the efforts of a lawyer working on your behalf. No exceptions. There is no way the value of such a case can be accurately assessed even for settlement purposes unless and until your attorney has received a written representation of each and every use. You simply can’t assume that because you saw the poster in Bloomingdale’s in NYC that it is not also in Bloomingale’s and/or Dillards in Florida or Nieman Marcus in San Francisco or a small boutique in Duluth. Use in a brick and mortar store which is part of a chain serves as a virtual guarantee that the image is being used in most, if not all stores in that chain in at leasta given geographic region. You may have only uncovered the proverbial tip of the iceberg.
- Don’t discuss the matter with anyone other than your spouse, agent (if involved) or attorney.
- These claims are owned and belong to the model. The model agency may or may not have claims against the infringer independent of the model’s claims. So for example in NY the model is entitled to seek an award of punitive damages for knowing use. The model agency would not have such a right but under certain scenarios could sue for commissions it should have been paid for usage beyond the original license period. Another consideration is that your agency may get a lot of jobs from that client and might be influenced to settle for a lot less than you’d collect if that relationship didn’t exist.
- Do not delay. Theses cases have very narrow time frames within which to sue. Failure to bring a claim within the applicable time period may result in your inability to bring it at all.
Lastly – and it bears repeating – if you are the subject of a photo which is to be used for trade and/or commercial purposes, read the release offered to you carefully. If you don’t understand it or it does not comport with your agreement do not sign it. If you have a model agency, call it for advise. If you are not represented, don’t sign anything you don’t understand. Do not leave the shoot without a completed, signed release which complies in all respects with the deal that has been made and as you understand it. This includes shoots done for self-promotional purposes where photographer and model have agreed to use the pictures only for their respective self-promotion, websites and/or portfolios and not in connection with any third party products or services.
Any release you sign for a TFP (Trade for Print) or similar situation, should be very clear on the usage, that it’s for promotional use, not commercial usage.
You can find appropriate and various model releases in our book The Copyright Zone.