Doctors are amazed with patients who self medicate, self diagnose, or worse, photographers who wake up with a green oozing sore on their body and then call other photographers asking “What should I do?” Easy. CALL A DOCTOR. In the same vein, Big Name Airlines doesn’t call Midas Muffler or Bernie’s Discount House of Oil Change when they need to change the oil on one of their planes. They call a real aeronautic mechanic.
Which brings us today, to a model’s representative (usually called a “rep”) who was insulted when talking to Ed. This scenario could just as easily been a photographer’s rep, same situation, same story. It has to do with unauthorized usage of a photo of a model. The model agent felt “insulted” and “his/her abilities as a negotiator impugned” when Ed advised that as an attorney he could do a better job at settling this legal dispute than a rep or agent could. In response to a very angry rep/agent, Ed sent the following letter, which has been heavily edited: The rep/agent’s response follows Ed’s letter:
Dear Rep/Agent:
You have no reason to be insulted. I am not going to fight with you but reps often, indeed almost always, fail to secure a written representation of all unauthorized usages. Such written representation enumerates all unauthorized usages and permits the talent to sue for fraud based on errors (intentional or otherwise) contained in the representations in the document. Fraud enables talent to seek and obtain punitive damages which may exceed the value of the infringement/unauthorized use by many times. I dare say you have never even seen such a document not mention written one.
Additionally, I’ll bet that you have never conducted an analysis of court decisions and awards in matters involving not only the copyright law but also Sections 50 and 51 of the New York Civil Rights Law which makes an unauthorized use of a model a misdemeanor and allows for punitive damages. When is the last time that you looked at the California Statute or the recent changes to the Illinois statute regarding the use of dead celebrities? A rep does not have the power to threaten to obtain a court injunction requiring say the immediate removal of product packaging or signage from hundreds of thousands of stores (yes, hundreds of thousands of stores). Such removal or threat of removal, is very scary to offenders and very, very expensive. Great leverage. Ever use it? Think it is a credible threat coming from a non-lawyer?
We have threatened and/or caused the removal of a product from every CVS, Walgreens, Walmart, Publix, Eckhard, K Mart and on and on because there was no model release. Same for jeans, over the counter products and so on. Opposing lawyers and their clients know that. They pay more attention when threatened with a similar credible threat/result. Non-lawyers can’t credibly make that threat or make it a reality.
You are not a lawyer and again ought not be insulted. I am not a rep and can’t do what you do. I don’t profess to have sufficient expertise to estimate or price a job or play the role of rep. You ought not profess any expertise in dealing with violations of law whether it be Federal copyright, various State Civil Rights Laws, various State Privacy statutes, or otherwise. Doing so can get you sued by your talent for negligence. I have sued reps and model agents in particular for making settlements of claims on behalf of their talent without first speaking to a lawyer. Sometimes when a rep seeks such settlements they even cross the line into “practicing law without a license” territory.
I am trying to protect you and help you to maximize any dollar recovery for any violations of law perpetrated against you or the talent you represent.
Joe Hunter is the former president of Ford Models. He is a super expert witness on modeling. Repped all the biggies in the ’80s, credited with inventing the term “super model”. When a good client of Ford crossed the line regarding usage, he’d say, “My model has spoken with this attorney Ed Greenberg who does this stuff all of the time and to whom we send our models when they have problems. She knows what she could possibly get in litigation cuz Greenberg told her so. Now all I can do is try to make a deal with you which might include some additional use for additional money, run it past Greenberg who is a reasonable guy, I’ll tell him you were reasonable and we can kosher a deal without litigation. If we can’t then we let the reins off Greenberg and trust me it won’t be pretty”.
Then either a settlement with language approved by me would take place with a good “Major Brand Household name” client. Or in the alternative I would start a usually fruitful litigation. If the client was a not so nice, Mr. Hunter would simply call the client tell them they have a problem that needed to be resolved ASAP or they were gonna get sued within 24 hours. Mr. Hunter picked his spots and was fantastic at it. When cross examined in a courtroom during a trial, the opposing lawyer asked him:
“Mr. Hunter don’t you think what you do in some instances where a company has exceeded usage of a model is practically extortion?”
Joe’s reply: (jury applauded after)
“I am an agent. That is my job. That’s my responsibility and obligation to my models. I want to squeeze every last dollar out of anyone who is using our talent without paying for it. If they don’t pay, we get them a lawyer to sue.
<Sarcastically> If that’s extortion, then I’m an extortionist”.
Post trial the judge asked Joe if he would represent the judges who were then seeking a raise from the State of New York – true.
Getting insulted is the last emotion you should feel. “Protected and cared for” is what most reps/agents we speak to feel when given this very same advice. It’s no reflection on your abilities to perform the services of an agent or rep. I am not a rep, you are not a lawyer. Not an insult. We all have different talents. Like the dishes at a Las Vegas buffet each dish is different yet compliments all of the others.
Sincerely,
Edward C. Greenberg, LLC
The rep’s short, but informative response?
“Ed, I think I am falling in love with you.”
Ed’s wife has yet to be informed.
