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".

[slash-5]

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.

[txphotog]

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?

[Godmother]

If you asked a question, I missed it

What's your question?

x

[creativeretouch]

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.

[txphotog]

Originally Posted by Godmother

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.

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.

[txphotog]

Originally Posted by creativeretouch

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.

Originally Posted by creativeretouch

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?

Originally Posted by creativeretouch

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]

Originally Posted by creativeretouch

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?

Originally Posted by creativeretouch

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?

Originally Posted by creativeretouch

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?

[creativeretouch]

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

Is this the correct answer?

[txphotog]

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.

[txphotog]

Since this is a retoucher's forum,l let me try to put it into retoucher terms.

1. A model comes to you with a photo done by a photographer you don't know. She wants it retouched to use for her self promotion.

2. There is no contract in writing between the model and the photographer which discusses the limits to which she may use or retouch the pictures (which is normally the case).

3. How much, if any, retouching may you legally do for her in such a situation?

[creativeretouch]

I am not a lawyer but I think as a retoucher you can do whatever she/he wants you to do - the responsibility is on the model side.

In some countries copyright law sais that is pretty legal to change original work as long as you will improve it. As I understand you will change something in a better way and you will create new artwork and copyright will be on your side (for this new artwork) as long as you are not employee .. In most countries if you are independent artist paying your tax on your own, copyright belongs to you. If you are employee - copyright belongs to your company ...

But how do you want to prove that your new artwork is better than the previous one if the previous artist will say he/she does not like it?

[txphotog]

Originally Posted by creativeretouch

I am not a lawyer but I think as a retoucher you can do whatever she/he wants you to do - the responsibility is on the model side.

That doesn't work very well. If you retouch a picture and the photographer decides to sue, lawyers will almost always include as defendants anyone associated with the issue. My question, broadly put, is "on what criteria can you defend your work as having been legal?"

Originally Posted by creativeretouch

In some countries copyright law sais that is pretty legal to change original work as long as you will improve it. As I understand you will change something in a better way and you will create new artwork and copyright will be on your side (for this new artwork) as long as you are not employee .. In most countries if you are independent artist paying your tax on your own, copyright belongs to you. If you are employee - copyright belongs to your company ...

I'd be obliged if you could let me know some of those countries. I am not aware of any.

A new copyright would be created only if the retouching was to a standard which created a "derivative work", under US law. And you can't do that without the copyright holder's position.

I don't think we should be discussing "other countries' laws" without specifying which countries those are, since copyright law varies quite a bit among countries.

[creativeretouch]

i have found this in the Czech copyright law a few years ago.

I do not see this problem so interesting and I would suggest to you to find a lawyer who will be able to give you more informations and prepare special contracts so you do not have to be afraid anymore.

As I wrote earlier everything is about the contract between you and your client.

[Godmother]

Originally Posted by txphotog

That doesn't work very well. If you retouch a picture and the photographer decides to sue, lawyers will almost always include as defendants anyone associated with the issue.

If you don't use it/display it, you have nothing to worry about.

Does it answer your question?

It's up to you if you do it or not. I've never done work for a model without written consent from the photographer.
And I will never do it either.

[txphotog]

Originally Posted by creativeretouch

I do not see this problem so interesting and I would suggest to you to find a lawyer who will be able to give you more informations and prepare special contracts so you do not have to be afraid anymore.

I'm not afraid, I'm a photographer, not a retoucher (although I do retouch my own work.)

The question is one that should be of interest to models and retouchers who want to understand what the legal boundaries are on what they can do. Assuming they are not in the Czech Republic, which is true of most people.

[txphotog]

Originally Posted by Godmother

If you don't use it/display it, you have nothing to worry about.

Does it answer your question?

I don't see how. The whole purpose of pictures for the self-promotion of the model is "display". If you just want to put it in the bottom of your desk drawer and drag it out every Easter to admire, I don't suppose there is a problem. But that's not what models typically do.

Originally Posted by Godmother

It's up to you if you do it or not. I've never done work for a model without written consent from the photographer.
And I will never do it either.

That's probably a wise policy, but it avoids the question when someone wants retouching done, they don't have permission from the photographer, and they want to know what they legally can do without it. Which is my issue.

[txphotog]

Originally Posted by creativeretouch

In some countries copyright law sais that is pretty legal to change original work as long as you will improve it. As I understand you will change something in a better way and you will create new artwork and copyright will be on your side (for this new artwork) as long as you are not employee . . . .

Originally Posted by creativeretouch

i have found this in the Czech copyright law a few years ago.

This is the relevant section of the Czech copyright statute. I don’t read it at all the same way you do.

(3) The author shall have the right to the inviolability of his work, especially the right to grant consent to any alteration of, or other intervention into his work, unless stipulated otherwise by this Act. Where the work is utilized by another person, the utilization may not be executed in a manner that depreciates the value of the work. The author shall have the right of supervision over compliance with this obligation by the other person (author’s supervision), unless ensuing otherwise from the nature of the work or of its utilisation, or unless it is not possible to fairly require of the user to allow the author the exercise of the right to author’s supervision.

[creativeretouch]

Czech Republic joined European Union in 2004. This is not the identical text which I found a few years ago and not in the czech language.. But still:

"Where the work is utilized by another person, the utilization may not be executed in a manner that depreciates the value of the work."

and:

"The author shall have the right ..."

I am sure there is a diference between "shall" and "must" ...

From my experience if models like photographs once retouched by photographer they do not look for retouchers.

I would be more worry about big companies which are using photographs without any permissions or contract ...

[creativeretouch]

Originally Posted by txphotog

I don't see how. The whole purpose of pictures for the self-promotion of the model is "display". If you just want to put it in the bottom of your desk drawer and drag it out every Easter to admire, I don't suppose there is a problem. But that's not what models typically do.



That's probably a wise policy, but it avoids the question when someone wants retouching done, they don't have permission from the photographer, and they want to know what they legally can do without it. Which is my issue.

Godmother is a retoucher and I think she wanted to say if you as a retoucher do not use the photograph you do not have to worry. It means if retoucher does not use the photograph for his/her self-promotion nothing is going happen as model is using the photograph (not a retoucher)

[txphotog]

Originally Posted by creativeretouch

Godmother is a retoucher and I think she wanted to say if you as a retoucher do not use the photograph you do not have to worry. It means if retoucher does not use the photograph for his/her self-promotion nothing is going happen as model is using the photograph (not a retoucher)

That may be what she intended, but it is false. If a copyright holder takes exception to retouching done, regardless of who publishes the revised work, and the changes are not legal, then the retoucher is liable even if she did not herself do the publication. That is the point I tried to make earlier.

We still are left with the original issue, which is "what kinds of changes are legal?" without a photographer's permission.

[creativeretouch]

To be honest I do not understand why you turning this question around and around ...

You already gave an answer to yourself from your point of view ...

I am leaving this post

[txphotog]

I came here with this question over three years ago in the hope that retouchers - people who work in the field on a day-to-day basis - would have a firmer understanding of the law that applies to what they do than others. I thought perhaps they - you - would be able to shed light on the question of legal limits to retouching that people who deal with the issue less regularly would not have considered.

I have been disappointed in that expectation. It appears nobody here has considered the question of "how much retouching is allowable absent a copyright holder's permission". And, frankly, that surprises me.

[Godmother]

Originally Posted by txphotog

I came here with this question over three years ago in the hope that retouchers - people who work in the field on a day-to-day basis - would have a firmer understanding of the law that applies to what they do than others. I thought perhaps they - you - would be able to shed light on the question of legal limits to retouching that people who deal with the issue less regularly would not have considered.

I have been disappointed in that expectation. It appears nobody here has considered the question of "how much retouching is allowable absent a copyright holder's permission". And, frankly, that surprises me.

Why does it surprise you?

Legality is not really the issue for me.

If the photographer doesn't want the picture edited by the model/model choice of retoucher then I wouldn't do it. IMO you shouldn't do it either

If you do tell the model you need photographers permission, if they say they have it, that's all you need.

NOONE will sue you for retouching the image unless you use it yourself for promotion.


Why I think you shouldn't do it anyway? Because photographers are the ones who really matter for you as a retoucher and if the voice gets around (and it does) legal or not, you won't get work from photographers if they think you don't respect copyright (EVEN if it is legal, wich I don't think it is )

Models won't be your long term clients. That's what you should be thinking about. Again , IMO

[myrestor]

In an internet development class I took for college, the professor talked on the subject a bit. They said that if you take any image and change it the new revised version is your work, the items that you used to make it were merely ingredients so to speak. The example he used was taking a picture of the state of Utah and putting a square around it.
Thus it is my understanding that it is legal, however I don't support doing it. I hold the same stance as Godmother

[sirrduke2010]

First off I am not an attorney so I can't give legal advice. Here is the thing if it is a TFP shoot and the model signs a release the model is really in a disadvantage in all of this. The photographer owning the copyright can revoke her right to use if he or she wants. Now the model would have to prove that they had that type of agreement. The agreement won't be a he said she said because the photographer has the a release in writing. If you want to be sure about your agreement have it in writing and specify what you have the right to do in posting your images. I haven't seen any models using this yet but I think it would be a good idea. Actually if it is a TFP it is a contract between both parties. Since I am not an attorney so I can't give legal advice.

[creativeretouch]

Originally Posted by sirrduke2010

First off I am not an attorney so I can't give legal advice. Here is the thing if it is a TFP shoot and the model signs a release the model is really in a disadvantage in all of this. The photographer owning the copyright can revoke her right to use if he or she wants. Now the model would have to prove that they had that type of agreement. The agreement won't be a he said she said because the photographer has the a release in writing. If you want to be sure about your agreement have it in writing and specify what you have the right to do in posting your images. I haven't seen any models using this yet but I think it would be a good idea. Actually if it is a TFP it is a contract between both parties. Since I am not an attorney so I can't give legal advice.

Yes, you are right. But please consider that in most cases a model will ask a photographer to create his/her portfolio. In this case a model suppose to pay for this production - it means a photographer (hair stylist, make-up artist, stylist) works for free ...