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MODEL RELEASES

By J.D. Obenberger, J.D.

From time to time, a webmaster will post a message on the YNOT chat boards, asking other webmasters for a referral to a source for model release forms. Responsive posts usually provide a URL leading to a sample form. Oftentimes, the identical form is referred to. I can honestly say that I have yet to see a single model release form forwarded from one webmaster to another that in my opinion is legally adequate.

This article will address key features that should be included in every model release form. Please note that this article is not intended to provide an all-inclusive list of items that should be in a model release form - only certain provisions will be highlighted. Please contact me at the email address below, should you seek a referral to an attorney who can provide you a model release that covers all of the bases.

As always, please note that the purpose of this article is to comment on general legal principles and to educate. I am not giving specific legal advice, and nothing herein creates an attorney-client relationship.

Generally speaking, I have found that there are two basic schools of thought when it comes to model release forms. Once school believes in the "less is better" approach, utilizing bare bones release forms. The rationale is that with too much legalese in the form, you may either confuse or scare away the model before you get to do the shoot. These release forms, which I see most commonly passed from one webmaster to another, contain little more than an indication that the model retains no ownership rights to the images. Commonly, no mention is made in regard to issues such as the specific employment relationship between the model and the photographer or proof of the model's age.

The other school of thought, which I follow, believes in an all-encompassing document. Rather than having one document wherein the model waives all rights to the images, and a second document describing the specific relationship between model and photographer, all provisions are contained within one document. In my view, this is more efficient. Further, I am not concerned with scaring the model away with "too much legalese". I want the model to understand that he/she is entering into a serious endeavor, where rights are being waived. Please understand that model release is your first salvo in what sometimes devolves to a battle between the model and the photographer, eventually, to force the takedown of images that have grown embarrassing. You must bulletproof every aspect of every shoot with the prospect that a model may evenually make false claims in order to get the images down. She'll lie about being underage. She'll claim she was drunk or stoned or that it was the Russian Mafia that forced her to come to you. Model releases are only a part of a bigger protocol to bulletproof your shoots, so that if the images ever come down, it will be on your call, not hers.

The bare-bones approach is seldom the safest for long term protectability. When you run into a situation where a model wants all images of him/her pulled years later when he/she gets married, becomes a cop, or it turns out that the model misrepresented his/her age, you'll wish you didn't skimp on the "legalese".

With that said, let's explore some of the items that, in my opinion, must be contained within your model release form. Foremost, you must have clear and concise language as to who owns the images. The photographer or the company hiring the photographer should be noted to have exclusive ownership of the images for all time. It should be noted that the company/photographer has the right to publish the images in any and every form of media, and to alter the images in any manner desired without the model's permission. It is important to acquire all rights, not just some of them. Not only should a good release secure permission to exploit the performer's appearance commercially (you should know that 14 states now require such permission to be in writing) but it should also waive and/or transfer all _copyright_ interest the performer may have in his or her performance, ad libs, etc. There should be a waiver of author's rights. Any and all privacy rights in the performer's information, including Section 2257-mandated records, should be waived. The photographer should obtain a right to freely describe the performer in any true, false, or even insulting manner.

The specific services to be performed by the model should also be described. Will he/she be posing for still images, films, or videotapes? Will the model be posing nude, partially nude, or clothed? Will the model be engaging in sexual activity with another person? Each of these should be indicated, so that the model knows beforehand exactly what he/she is getting into so as to avoid any misunderstandings. The document will also prove that you had the model's consent to take the pictures, should some dispute later arise. In order to make your release a valid part of your Section 2257 records, you might wish to have it harvest all alias information. It is a crime to include records in your Section 2257 system that are not required; lists of alias names are required. Releases alone are not required.

The company/photographer should indicate in general terms what the images would be used for. For example, list advertising, trade, publication, promotion, exhibit, sale, licensing, and so on. This will defeat a later argument by the model that it was his/her understanding that the images were for the photographer's private use only.

An important factor is a provision indicating that the model warrants under penalty of perjury that he/she is of legal age for modeling nude or partially nude in the relevant community. A companion provision should also be included, wherein the model agrees to indemnify and hold you harmless should it later be determined that the model made any misrepresentations in signing the form, such as lying about his/her age. While these provisions have more bark than bite, they leave the model with the impression that if he/she does lie about his/her age, the model will suffer the consequences, rather than the photographer. Hopefully, this will scare away any underage models.

The reason why these specific provisions in actuality have more bark than bite is as follows. Say a mature-looking 17 year-old girl comes to you with two forms of identification and represents that she is 19 years old. You reasonably believe that she is of age to pose nude, so you get her to sign a model release form with the above provisions, and photograph her. You subsequently put her images on a CD, and sell the CD to 20 webmasters.

The girl's mother later finds out that her underage daughter posed nude, and files an injunction to prevent you from publishing the images (because the model is underage). You are forced to retrieve the CDs from each of the 20 webmasters. Some of the webmasters have to return money to their members, because their sites solely featured pictures of this model. The webmasters then sue you for their lost revenues.

What do you do? You invoke the warranty, indemnity and hold harmless provisions of the model release form, and demand that the model defend you in the lawsuits with the webmasters and pay any award against you. The problem, however, is that if the model was 17 when she signed the form, in most jurisdictions, she is considered to be a minor and incapable of entering into a binding contract. Thus, these provisions are unenforceable against her.

Back to the contents of the model release form. Be sure to mention that the model is an independent contractor, rather than an employee. In that manner, the model will be ineligible for any employee benefits, and the model, not you, will be responsible for paying taxes on the monies paid to the model. This also means that the model will be unable to file an unemployment insurance claim against you when you stop utilizing his/her services.

You should also include a provision regarding what laws would be applied to any dispute arising out of the agreement. Let's say that you are based out of California and that you do a photo shoot in New Orleans at your hotel room during the convention with a model from Florida. Should the model later claim that you shortchanged her and she files a lawsuit, which state's law would apply? I recommend making a specific reference that the laws of your home state apply to any dispute. This prevents you from having to interpret another state's laws with which you have no familiarity. You will also be able to retain the services of a local attorney.

Also indicate that in case a dispute does arise, the matter must go to binding arbitration in your home state. This should save you time, as matters usually go through arbitration must faster than any court system, and money, as your attorney's fees most likely will be less significant that a full-blown courtroom battle. You also won't be forced to travel to another state to resolve the dispute.

At the signature section of the form, make sure to get the following:
    1. Model's signature;
    2. Model's legal name;
    3. All other names the model has ever used, such as stage names and maiden names;
    4. The date the document is signed;
    5. Model's mailing address;
    6. Model's date of birth;
    7. Model's driver's license number and expiration date;
    8. Model's social security number.
It is also wise to take photographs of the model (clothed!) at the time the model signs the release, holding two forms of valid identification. This hammers home to the model the seriousness of the age issue, and proves to any authority that this individual model gave you two forms of identification. A recent newspaper in the image proves that the date on the newpaper has occured, and will defeat a claim that she posed before she turned 18.

Finally, give the model copies of the model release form and the photos with the ids, and keep copies for yourself. I recommend holding on to the form and identifying photos indefinitely, both as evidence that you are not committing copyright infringement in publishing, leasing, or selling the images, and as a defense to any accusations of photographing underage models.





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