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Model usage of photos

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  #1  
Old 06-04-2007, 06:41 PM
txphotog txphotog is offline
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Model usage of photos

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.

Last edited by txphotog; 06-06-2007 at 01:59 PM.
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  #2  
Old 06-04-2007, 06:51 PM
txphotog txphotog is offline
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Re: Model usage of photos

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".

Last edited by txphotog; 06-06-2007 at 02:02 PM.
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  #3  
Old 12-08-2010, 11:37 PM
slash-5 slash-5 is offline
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Re: Model usage of photos

You opinion doesn't matter. My opinion doesn't matter. There is no implied use.

The photographer owns the copyright as the button is pushed, unless a client purchases the copyright or the image was made in a "work for hire" arrangement.

This is the law. The model has the "right" to use the image as specified in the usage agreement, not the model release. These are not the same.

I am not a lawyer, but I can tell you that you might want to research this more. "Common practice" is not like an easement, and it does not trump the law.
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Old 12-09-2010, 12:24 AM
txphotog txphotog is offline
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Re: Model usage of photos

You are correct, neither my opinion nor yours matters. I stated mine only to set the baseline for the question. I don't pretend to know the full dimensions of the answer. Clearly you do not either.

Yes, I know the photographer owns the copyright. Of course. Let's get beyond that to the issue: what rights does the copyright give the photographer, and what does it not?

The question involves a (very common) case where there is no usage agreement, as was clearly stated. Again, I am well aware that a model release and a usage agreement are not the same; I simply pointed out that a model release was the only piece of paper signed, "the paperwork, if any, involved in the shoot is silent on usage rights for the model." You have simply stated the obvious.

"Common practice" does not "trump the law", but the law considers it. That's how implied usage licenses come into being. You might want to read up on the doctrine of implied license.

Now, it's been a very long time . . . does anyone here know the answer?
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  #5  
Old 12-09-2010, 06:12 AM
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Godmother Godmother is offline
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Re: Model usage of photos

If you asked a question, I missed it

What's your question?

x
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  #6  
Old 12-09-2010, 06:17 AM
creativeretouch creativeretouch is offline
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Re: Model usage of photos

1) Model suppose to pay to a photographer for his work (in the case of test shots).

2) In the situation when a photographer is paying to a model - a model will sign a model release which is something as a contract where a model gives to a photographer the right to use (sell) his images.

3) In the case of TFP (Time For Print) or TFCD - a model does not pay to a photographer - it means a photographer will ask you to sign a model release to give him rights to use those photographs.

4) Copyright belongs to a photographer - it means he has right to make copies and use them (sell them) or he is allowed to pass this right to a third party (person).

5) Model is not allowed to sell his/her photographs taken by a photographer without a photographer's permission but all photographers agree that models can copy and use their pictures for their self promotion.
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Old 12-09-2010, 09:59 AM
txphotog txphotog is offline
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Re: Model usage of photos

Quote:
Originally Posted by Godmother View Post
If you asked a question, I missed it

What's your question?

x
I wasn't asking a narrowly targeted question, but rather for a discussion/clarification of the limits to which a model might retouch images given to her by a photographer in a common test shoot or TFP situation.

Quote:
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 . . . .

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. . . . .

Clarification would be greatly appreciated.

So far nobody has attempted that.

Last edited by txphotog; 12-09-2010 at 10:09 AM.
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  #8  
Old 12-09-2010, 10:06 AM
txphotog txphotog is offline
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Re: Model usage of photos

Quote:
Originally Posted by creativeretouch View Post
1) Model suppose to pay to a photographer for his work (in the case of test shots).
Or not. Test shoots may be either free or paid.

Quote:
Originally Posted by creativeretouch View Post
2) In the situation when a photographer is paying to a model - a model will sign a model release which is something as a contract where a model gives to a photographer the right to use (sell) his images.
Not always, but suppose that is true. How does it bear upon the model's right to retouch images?

Quote:
Originally Posted by creativeretouch View Post
3) In the case of TFP (Time For Print) or TFCD - a model does not pay to a photographer - it means a photographer will ask you to sign a model release to give him rights to use those photographs.
Again, this may or may not be true, but assuming it is, [QUOTE=creativeretouch;281128]

Quote:
Originally Posted by creativeretouch View Post
4) Copyright belongs to a photographer - it means he has right to make copies and use them (sell them) or he is allowed to pass this right to a third party (person).
In the US, yes - not always in other countries. But again, assuming this is true, how does it affect a model's right to retouch images?

Quote:
Originally Posted by creativeretouch View Post
5) Model is not allowed to sell his/her photographs taken by a photographer without a photographer's permission
This is not strictly true. If a photographer gives a model a print, she is free to resell it for whatever price she can get for it under the "first sale" doctrine. But again, assuming it is true, how does it affect a model's right to retouch images?

Quote:
Originally Posted by creativeretouch View Post
but all photographers agree that models can copy and use their pictures for their self promotion.
That is generally true, but not always. One more time, how does that affect a model's rignt to retouch images?
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  #9  
Old 12-09-2010, 10:12 AM
creativeretouch creativeretouch is offline
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Re: Model usage of photos

As you can see everything is about a contract with the photographer - why do not ask him?

Is this the correct answer?
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  #10  
Old 12-09-2010, 10:17 AM
txphotog txphotog is offline
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Re: Model usage of photos

No, it's not the right answer. I am discussing a model's inherent rights, under the law, irrespective of any particular photographer when no paperwork between them bears on the issue.
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