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permitting use of a person’s image in a photo, which was not the product of fraud, coercion or duress, cannot be rescinded.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
#1 by Robin Moore on November 16, 2010 - 9:33 am
OK, here’s one. If a parent signs a release for their minor child, is that release non-rescindable?
Does the child have no right to control their likeness after they reach maturity, or at least, to affect future uses of any images containing their likeness?
OK, now what if the parent in question is later shown to have abused that child and themselves signed the release? Would the release then be rescindable? Let’s assume for the moment that the materials in question aren’t pornography, but that anyone would understand why the subject would be embarrassed to have them shown today.
Eager to hear your professional opinion.
#2 by Chaos on March 23, 2011 - 8:28 pm
“I will now attempt to compress several classes of contract law into just a few paragraphs.”
There wasn’t even a single mention of what a contract actually is. Many model releases lack all the elements needed to form a binding contract. An astonishing omission for an article of this nature.
#3 by admin on March 24, 2011 - 1:40 pm
Not astonishing at all. Specifically under New York Law, a model release need not have all of the elements or requirements of a contract. A model release is not a contract. No omission.
Without digressing – there are many signed writings used in everyday commerce which do not have, nor need have, all of the elements of a formal contract. We discuss this point in our lectures so as to help destroy this myth that you have inadvertently helped perpetuate.
#4 by Me on November 25, 2014 - 8:55 pm
What if the photographer agrees, with conditions, to temporarily stop publishing certain photos in order to protect the model in a delicate situation, e.g. a job she could lose if the photos were seen by the wrong people? Does this have any impact on the validity of solid model releases? If the agreement was terminal, as in “for as long as you hold this particular job” and not for any other reason, or any additional length of time, does this make any difference to the releases?
#5 by Jack and Ed on November 26, 2014 - 11:35 am
Huh? Sorry, but you’re a bit vague with details. Would need more specifics and be able to see the wording on the release. We say it over and over, if you need a specific answer to a specific issue, best to hire a professional, not to depend on the Internet. We can educate and inform so you can make good decisions (we try our best), but one of the informed decisions to make is when you need a lawyer.
Jack
#6 by Me on November 26, 2014 - 8:01 pm
There are more than a dozen releases involved, spanning several years of shooting art nudes. She was paid with each session, and all releases mention the compensation.
I’m just curious if a subsequent agreement (outlined casually in email) to withhold the photos during the tenure of a job has any bearing on the original releases.
I understand you are not giving legal advice, I am not seeking that. Just an opinion on whether there is, even potentially, any change to the validity of the releases.
#7 by Leticia Ayon on February 23, 2016 - 2:49 am
is there is a fine for a model that signed a contract to use her photos for a advertising website, she does not willing to be part of the website
#8 by Jack and Ed on February 23, 2016 - 11:10 am
Hi- Too little information to really say anything. Depends on the “contract” and the website. And a contract is different than a release. A lot comes down to what is written in what you had signed and what kind of a website.
#9 by George on July 18, 2021 - 11:06 am
Greetings
I read your article, and I want to ask you:
Should such a norm as a model release be spelled out in the civil or other code? For example, in the USSR, there was no such norm in the civil code, but actors and models starred in foreign advertisements and films, while they probably signed a waiver of royalties and a release that frees the actor’s employer from claims against him in the future. Could such a release be considered legal? After all, if there was no such norm in the legislation, then the actors (models) could not know the consequences of what they signed? Can such a release be recognized as illegal?
Thank you
#10 by Jack and Ed on July 19, 2021 - 9:44 am
Hi George, I’ll check with Ed on his reply, but I can say we have no idea about the law covering releases in the USSR. Our knowledge is in US law. And in the US, every state has it’s own laws on what is known as the rights of privacy and publicity, which covers releases. But having a release document I would think is valid in every country. In Europe, in countries like France, they have very strong moral rights that protect people’s rights in such matters. But even there, a release is valid, but might have different twists to it that we don’t have in the US. In Russia, there are exceptions to having a release if it’s obvious the person give approval or consent, but that’s easier to prove with a signed release. Here is a link to an article on such matters in Russia that you might find helpful. https://www.worldtrademarkreview.com/enforcement-and-litigation/russia-russia-provides-date-protection-image-rights