Model usage of photos

[txphotog]

There has been a recurrent discussion/argument on the modeling forums about the right a model has to use and retouch her images which result from a test shoot or TFCD. Lots of disagreement has resulted.

To set the stage for the question:

1. When a model comes to a photographer for a TFCD or test shoot, it is understood by the model that the pictures are intended to be used (at a minimum) by both sides for self promotion. That should be assumed as an entering condition on the shoot.

2. Typically, a model signs a release (for a TFCD) to the photographer granting him full or limited usage rights. Normally the photographer signs nothing, and the paperwork, if any, involved in the shoot is silent on usage rights for the model. For test shoots (between an agency model and a photographer) typically no release or papers are signed on either side.

3. As a matter of custom, models use pictures resulting from test shoots and TFCDs on composite cards, printed portfolios, and on agency or model websites to promote the model. There is rarely any written permission given for such use, and also rarely any objection to it, since that was assumed when the shoot was booked, and the model accepted the shoot on that basis.

4. Not all photographers deliver pictures which are fully ready for use in promoting the model. Pictures may need color or exposure correction, cropping or retouching to remove skin blemishes, for instance. While models generally prefer that this be done by the photographer, it is not done in all cases.

With that background, some photographers have taken the public position (as opposed to a position in any negotiation with a particular model) that such modifications to images without specific, written authorization are not permitted. Further, a smaller number of photographers take the position that even self-promotional use of the pictures cannot be made without written authorization from the photographer, despite the fact that such is rarely given, and that it is understood that such use will be made as a condition of the shoot.

This has caused no small amount of concern in the Internet modeling community. (Agencies don't worry about it - they use the pictures, and modify them, as they need to - because that's the way it is done.) So some guidance more authoritative than the photographers on each side of the issue is needed to help quell the concerns.

My personal position is that there is an implied or mandatory license given to the model in such cases, authorizing self-promotional uses as envisioned when the shoot was booked. Further, my position is that as long as retouching of the image to make it suitable for self promotion does not rise to the level where a new "original work of authorship" is created, there is no prohibition in law against such retouching by the model or her agency. A "derivative work" is not created by removing a few zits and skin blemishes; such work is "obvious" and not creative, much as the work of makeup artists is generally not subject to copyright protection for the same reason.

Clarification would be greatly appreciated.

[txphotog]

To add to my earlier question, we should assume the following:

Photos will be delivered in CD format by the photographer.

They will not be signed and numbered, and will be intended for promotional use (hence Title 17, section 106a would not apply).

TFCD, for those not familiar with the term, means Time For CD, in which a model and photographer exchange their time in a studio (or on location) for pictures which are intended to be of value to both, for the purposes each intends. It is equivalent in non-Internet terminology to an unpaid test shoot. The question also applies, however, if the model is paying the photographer for pictures for self promotion.

Please also note, "Fair Use" is not being invoked here. Rather, the right to retouch is, in my view, inherent in the law if a usage license is granted (explicitly, or by action of law - implied or mandatory) and is silent on the issue of modification.

This seems to me to be an issue that should be of great concern to retouch artists, since much of what they do will be on work by a photographer who has not granted an explicit "license to retouch".