What is the Model Contract
Most photographers are freelancers instead of employees and although creative people tend to put their focus on the art, the legal side of the business should be top of mind for any professional. If you are distributing or selling your photographs, it’s important that you understand the different types of contracts that will protect you, your work and your legal liability.
Photograph by Brian To.
Here’s a story to illustrate it. In an essay in The Cut, model and actor Emily Ratajkowski recounted that in 2012 when she was first starting out she modeled with photographer Jonathan Leder for no money, just exposure.
Years later she starred in Gone Girl and her career blossomed as an actor. Leder later released a series of photography books and images of her from that session. The images were provocative and she reported that her encounter with Leder that day included troubling behavior. She was uncomfortable with what he manipulated her to do on camera and his personal actions off camera. She did not want the images widely published and didn’t recall her or her agent signing a model release which would have allowed the images to be used for purposes beyond the “model contract for photo shoot” of this one magazine.
This resulted in a cease and desist letter from her lawyer. In the end, individual state privacy laws can be complicated and Ratajkowski did not pursue her claim. For example, in the state of New York where this took place, there are numerous exceptions in privacy laws, including one about newsworthiness that predetermines the need to demonstrate “actual malice” and a “severe” degree of falsity.
There is also the distinction between a photograph being “art” and “commercial”. Since Leder was selling the photographs as an art book, rather than selling the images on a t-shirt for example, he could be protected by law.
In the end, although she believes the signature on the photo release was forged, the pictures by that time were widely distributed on the internet so limiting their release would be fruitless and the legal costs to go after Leder, immense.
Although Ratajkowski in this case was unlikely to win in court, a photographer does not want to be in a position which could affect their reputation and involve legal troubles.
To prevent a scenario like this, let’s look at model contracts for a photo shoot that you need as a professional photographer.
The Model Release Form Template
Assemble reached out to LA based photographer Brian To, who shoots fashion, beauty, editorial, headshots, advertising, fitness, and celebrity event photography. Brian uses a simple model release template.
"I took the advice of a pretty famous photographer a long time ago who said to keep the model release straightforward and simple, so people you shoot are not scared of any complex hard-to-understand legal language.”
As Brian’s template illustrates, the model release form does not need to be overly complicated, but if your particular shoot has any special considerations, those should be included and addressed. For example:
- If the photos are to be used in an ad campaign showing the model with a medical condition they don’t actually have, you want to make sure the model consents to how the photos will be used and represented.
- As most digital images are often subject to retouching, you may want to also include a digital manipulation clause that gives you permission to alter the image in any way needed.
- If you are working with minors, you’ll need to adapt to a parental consent form, which would mirror a model release, but include a parent or guardian’s signature since anyone under the age of 18 is not legally allowed to sign contracts. You will also need to verify that the parents have set up a Coogan Account (blocked trust account) if you are working in the State of California, New York, Illinois, Louisiana and New Mexico. This protects the minor’s earnings until they are an adult.
For a more comprehensive model release, please click below for a downloadable template.
The Model Release vs The Photography Release
A model release is all about privacy. It is of value to the photographer, not the model. Because there are laws for people to have a right to privacy, photographers can’t simply benefit from using a person’s likeness unless the photo was taken in a public place where there really isn’t an expectation of privacy. However, a photographer needs to be careful because some seemingly public places may not be public property—places such as shopping malls, theaters, amusement parks, airplanes, trains, building lobbies and hotels, for example, are private. Since the legal definition of “reasonable expectation of privacy” can be arguable, when able it’s best to get a model release.
In the case where a photographer is hiring a model, the relationship to the subject is clear and a model release is essential. The best way to think of the model release is as a written form of consent to use the photographs in agreed-upon public uses. It accomplishes two main goals.
- Establishes that the photographer will own all the rights to the photographs of the model (unless otherwise negotiated).
- The model gives the photographer permission to use the photo for distribution. These rights can be negotiated in terms of the method or scope of said distribution.
With these two conditions in writing, the photographer owns not just the copyright, but also the right to publish the picture.
A photography release is sometimes called a photo release or print release. Whereas a model release gives the photographer ownership and the ability to distribute the image, a photographer release protects the client. If the client is a well known celebrity for example and hires the photographer for the photo shoot, the celebrity can stipulate where the photographer is allowed to display the photograph.
The client could request a “full buy-out”, which doesn’t mean they own the copyright, but simply means they have an unlimited, exclusive-use license to use the images in any media in perpetuity. This is an important distinction because if you give up your copyright to the image, you also lose the ability to post it in your portfolio, in social media and any or all marketing materials.
To truly understand privacy rights, publicity rights and copyright, the Library of Congress offers this example.
An advertiser wishes to use a photograph for a print advertisement. The advertiser approaches the photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The advertiser also is required to determine the relationship between the photographer and the subject of the photograph. If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to license the use of the photograph for all uses or otherwise waives the subject's, sitter's or model's rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness. The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.
Final Takeaways for Photographers on Model Contracts
Taking photographs is a business. Professional photographers need to protect their copyright and their ability to distribute their work. It’s best to handle all the paperwork in advance of the shoot, start with a template, but add layers of protections that are unique to each assignment. The key is to be organized, preferably with a cloud based management system so that on the day of the shoot the focus is solely on the creative side of the work.