a different model release issue

Angelo · August 8, 2005

Hey everyone: I have a new question for which I can find no answer in a thread search. This has to do with model compensation.

I've been asked to shoot a series of photos for a client in which several of the client's employees will appear. The images will be used by my client for their own advertising, marketing and promotions.

I will own all rights to the images and my client will have the right, granted by me, to uncontrolled use of the images only for proprietary self-promotion.

As for the model releases. Almost all versions have language dealing with "due" or "appropriate" compensation "in exchange for".

Since these models are full-time, salaried employees of my client and are appearing, during normal working hours, at no additional compensation beyond their ordinary salary, how would I word this portion of the releases?

JamesJWeg · August 8, 2005

I have no answers but I too am interested in the answer.

James.

dragon300zx · August 8, 2005

I would either state that there would be $0 compensation period or that compensation would be granted only if the photo is sold to and used by another company but since that prolly wont be the case. Compensation = $0.00

JamesJWeg · August 9, 2005

dragon300zx wrote:

I would either state that there would be $0 compensation period or that compensation would be granted only if the photo is sold to and used by another company but since that prolly wont be the case. Compensation = $0.00

My understanding is that compensation = $0 is a problem, and infact there is compensation in the form of photo rights to the company, but the real question is how does this work against the fact that the models are company employees?

James.

dragon300zx · August 9, 2005

I would then put in that the compesnation is between the company using the photos and the model. For this purpose you are not using a MR like if you where shooting a fashion model etc. You are not compensation the models at all. Lets look at this as seperate tracks. Your client is the company. They are hiring the models. They are hiring the photographer. The models are not the responsability of the photographer just the photos. You need the MR to cover your but. But other than taking the photo you have no interaction with the model. Your model agreement with each model is just to cover you and you are not paying them you are giving the model zero compensation. Or you need to write the model agreement into the contract with the company and make them responsible for the model agreements etc. The MR is simply to release you of any liability. You can do that by spelling out in the agreement you are not compensating the models for anything as you are not hiring them. Or you can spell it out with the contract to the company and trust that they take care of it with the models.

Allen · August 9, 2005

Have no idea what I'm talking about. Way beyond me. But it seems if the photos are only
used by the company they need the release, the models are theirs. If you are going to use them
you need a release. But I don't think the company will go for this if they are employees and the
pictures are for proprietary self-promotion.

So assuming you're not going to use them, just add in that the company, the client, has the sole
reponsiliblty for any compensation, etc.
Make any sense?
AL

Angelo · August 9, 2005

dragon300zx wrote:

I would either state that there would be $0 compensation period or that compensation would be granted only if the photo is sold to and used by another company but since that prolly wont be the case. Compensation = $0.00

The entire point of this business is to take photographs that one can sell in a public forum. In order to do that without the responsibility of paying royalties to models appearing in the images is by paying "just compensation in exchange for the exclusive rights"

The models must, and will, be paid for their time by way of their regular salaries from the employer - my client. I need the proper verbage that spells that out to protect and free myself to sell the images unemcumbered.

Angelo · August 9, 2005

JamesJWeg wrote:

My understanding is that compensation = $0 is a problem, and infact there is compensation in the form of photo rights to the company, but the real question is how does this work against the fact that the models are company employees?

James.

My understanding is that compensation = $0 is a problem: Correct!

in fact there is compensation in the form of photo rights to the company: photo rights for the company has nothing to do with compensation to the models

Angelo · August 9, 2005

Allen wrote:

Have no idea what I'm talking about. Way beyond me. But it seems if the photos are only
used by the company they need the release, the models are theirs. If you are going to use them
you need a release. But I don't think the company will go for this if they are employees and the
pictures are for proprietary self-promotion.

So assuming you're not going to use them, just add in that the company, the client, has the sole
reponsiliblty for any compensation, etc.
Make any sense?
AL

it's always the photographer that wants the releases. the client is irrelevant.

JamesJWeg · August 9, 2005

Angelo wrote:

in fact there is compensation in the form of photo rights to the company: photo rights for the company has nothing to do with compensation to the models

Yes it does, you are compensating the company and it is thier resposability to compensate the model.

James.

Allen · August 9, 2005

Angelo wrote:

it's always the photographer that wants the releases. the client is irrelevant.

I tryed to say, that in your release, state who, the client, has the sole compensation responsibilty
and you have none.
Did it come out differently? Sorry
AL

colourbox · August 9, 2005

JamesJWeg wrote:

Yes it does, you are compensating the company and it is thier resposability to compensate the model.

James.

This is kinda obscure but there is a possibility that when the employees were hired, they had to sign various forms saying things like "if you create anything on company time, the company owns it; if you patent anything as part of your job, the company owns the patent..." etc. The language may possibly extend to such situations as the rights to employees' images used by the company being owned by the company. If it's practical to get clarification on this issue from the company's legal counsel or department, you may find that the employees might have signed away their workplace image rights long ago and you only have to deal with the client. I don't know how true that is but it's a possibility to consider.

Angelo · August 9, 2005

JamesJWeg wrote:

Yes it does, you are compensating the company and it is thier resposability to compensate the model.

James.

James - I'm not compensating the client. In fact they are paying me. My willingness to share republication rights with the client is quid pro quo. I allow them to use my images with no further payments to me and they allow me the right to sell images of their property with no further royalties to them.

If I were shooting an ad for, let's say Pepsi - I am paid a fee for my work as a photographer. That fee would generally include the casting fees for models. I would charge and collect the model's fees from Pepsi and in-turn I would pay the models, garnering their signed releases with the appropriate fee stated.

In this instance I am not casting nor am I collecting fees to distribut to the models, so I have to have the appropriate language to explain that they indeed received compensation from the client even though they are my releases.

Angelo · August 9, 2005

Allen wrote:

I tryed to say, that in your release, state who, the client, has the sole compensation responsibilty
and you have none.
Did it come out differently? Sorry
AL

That's it! I'm just hoping someone knows the proper verbage.

Angelo · August 9, 2005

colourbox wrote:

This is kinda obscure but there is a possibility that when the employees were hired, they had to sign various forms saying things like "if you create anything on company time, the company owns it; if you patent anything as part of your job, the company owns the patent..." etc. The language may possibly extend to such situations as the rights to employees' images used by the company being owned by the company. If it's practical to get clarification on this issue from the company's legal counsel or department, you may find that the employees might have signed away their workplace image rights long ago and you only have to deal with the client. I don't know how true that is but it's a possibility to consider.

Yes but those would only cover the company not me.

Angelo · August 9, 2005

bump - has anyone had a similar experience?

dragon300zx · August 9, 2005

I'm still scratching my head as to what the deal is here.

You are taking photos for the company of their employee's for lets use an employee profile web page as an example. You are not compensating the employees (models) anything yourself for taking these pictures correct?

Angelo · August 9, 2005

dragon300zx wrote:

I'm still scratching my head as to what the deal is here. You are taking photos for the company of their employee's for lets use an employee profile web page as an example. You are not compensating the employees (models) anything yourself for taking these pictures correct?

I'm taking photos of a restaurant for the owners to use for advertising and promotions. They, and I, want people in the shots. Rather than hire models, they are offering up staff to act as models.

These staff members are already being paid salaries to be on-site and on-duty.

I need model releases in which a stated fee for "just compensation" is included. The trick here is the proper verbage that releases the images to me in lieu of the fact that the model's were not specifically compensated to act as models. Issues of labor law and job descriptions come into play here so I have to be careful.

The easiest thing I can do, and I guess I'll have to discuss this with my client, is to pay the "models" a seperate fee "off the clock" so there is no confusion.

wxwax · August 9, 2005

This is tricky. Large businesses often have new employees sign a document that gives the company ownership over their work, images, etc.

But in my experience, restaurants don't do that kind of paperwork, don't usually need to. So unless it's a big chain, they may not in fact have the right to give you permission to use their employees.

To protect yourself, you need to get the company to sign a contract that releases you from all liability. And if I were you, I'd also get the employees that you shoot to sign an individual release that gives you permission to use their images at no cost. The employee release doesn't have to mention money: it just has to say that they give you the right to use their image. It should say how you would use the image.

Angelo · August 9, 2005

wxwax wrote:

This is tricky. Large businesses often have new employees sign a document that gives the company ownership over their work, images, etc.

But in my experience, restaurants don't do that kind of paperwork, don't usually need to. So unless it's a big chain, they may not in fact have the right to give you permission to use their employees.

To protect yourself, you need to get the company to sign a contract that releases you from all liability. And if I were you, I'd also get the employees that you shoot to sign an individual release that gives you permission to use their images at no cost. The employee release doesn't have to mention money: it just has to say that they give you the right to use their image. It should say how you would use the image.

Hey Sid, thanks for your input

Large businesses often have new employees sign a document that gives the company ownership over their work, images, etc. True but this would cover the restaurant and not me.

you need to get the company to sign a contract that releases you from all liability Got that but it doesn't necessarily cover this point.

I'd also get the employees that you shoot to sign an individual release that gives you permission to use their images at no cost. The employee release doesn't have to mention money: Unfortunately this doesn't seem to be the case. Some form of just compensation has to be exchanged in order to effect a release.

dragon300zx · August 9, 2005

What about just adding the line. "Compensation to be handled by (insert restaurant name here)".

tmlphoto · August 10, 2005

I would just compensate them myself, $1 each. I have read that fair compensation can be any amount, but that "some" compensation must be given. Another option would be to give them a 4x6 print of themselves for free as compensation. I am NO expert at all , so take this advice with CAUTION, but I believe that this is correct.

wxwax · August 10, 2005

tmlphoto wrote:

I would just compensate them myself, $1 each. I have read that fair compensation can be any amount, but that "some" compensation must be given. Another option would be to give them a 4x6 print of themselves for free as compensation. I am NO expert at all , so take this advice with CAUTION, but I believe that this is correct.

I don't believe that's accurate, Thomas. No money needs to be exchanged. But the subject does need to give their express, written permission. If they don't ask for compensation, none need be given.

wxwax · August 10, 2005

Angelo wrote:

I'd also get the employees that you shoot to sign an individual release that gives you permission to use their images at no cost. The employee release doesn't have to mention money: Unfortunately this doesn't seem to be the case. Some form of just compensation has to be exchanged in order to effect a release.

Could you tell me where you read this?

I've had many a release signed over the years, never paid once. No mention of compensation anywhere in the form I use. What is important is that the release covers your intended uses. And that you don't use the images in ways not covered by the release.

Angelo · August 10, 2005

v

wxwax wrote:

Could you tell me where you read this?

I've had many a release signed over the years, never paid once. No mention of compensation anywhere in the form I use. What is important is that the release covers your intended uses. And that you don't use the images in ways not covered by the release.

I'll find it for you Sid.

here we go:

In the United States, a model release is a contractual agreement that is not enforceable unless there was some form of compensation. A photo release is a mutually reciprocal feature of this form of agreement. That is, compensation without a release does not imply permission; and a signed release without compensation is incomplete. What is interpreted as compensation, or what form it takes, is not set in stone.

The theory goes like this: certain kinds of contracts are only enforceable if there is a "value" in return for the service of the signatory. This is done to protect people from stupidly signing their lives away and performing services for free. For example, you cannot sign a document that says you will wash someone's dishes and clothes forever and receive no money or other valuable remuneration. If you did sign such a document, but then failed to perform the duties, the other person couldn't sue you for failing to live up to your contract, because the contract is unenforceable. If the contract said that you would be paid $10/hour for your work, then the contract is enforceable. However, the employer's only remedy would be to stop paying you. While the law requires that some form of compensation must be given, it is not clear on how much or what form it takes. Compensation doesn't have to be money; it can even be barter. It has to be something of "value," but because this is vague, most courts interpret this as being whether the contract entered into between the parties are aware of and in agreement about what the compensation is.

Source

The important issue in the scenario I've presented is: how do I best protect my interests by correctly linking the salaries paid by my client to the time spent modeling by his staff? There's a grey area here that is the problem, not the actual compensation.

I'm discussing this with my client and believe we'll simply provide his staff a seperate fee for their time, outside of their normal working hours, to avoid problems.

Thank you all for your time and input. I'll let you know how it comes out.

wxwax · August 10, 2005

Very interesting, Angelo, and thanks for the link. There are obviously some differences between what I do and what you want to do, of which I was unaware. Good link.

I'll do a little snooping.

Angelo · August 10, 2005

wxwax wrote:

Very interesting, Angelo, and thanks for the link. There are obviously some differences between what I do and what you want to do, of which I was unaware. Good link.

I'll do a little snooping.

Thanks Sid.

a different model release issue

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