Parents want a model release back

Discussion in 'Business of Photography' started by nicole_powell, Dec 9, 2010.

  1. I did a photo session with a family that had 10 month old twins. So of course I had one of the parents sign two model releases for both of the babies/kids.
    Long story short, I won't sell them a CD that they can print off of so the parents won't buy any prints and they want the model releases back. I won't give them the model releases back and they're saying the parents have the rights to take back the releases and they're getting a lawyer to get them back.
    Do the parents have the rights to take back the releases? And either way, any advice on what to do about the lawyer situation?
     
  2. You should contact a lawyer of your own, of course.
     
  3. Ah - the old "I'm getting a lawyer" - line -
    In my opinion - No lawyer is going to take this - because there isn't money to be made on this. If the family already has an attorney or there is one in the family - then maybe - but that might be a long shot. Basically - if they lawyer - up or sound like they are - you'd be safe to do the same -
    As to whether or not they can retract the model release - it all depends on what wording is in your release regarding that situation or termination of the release.
    Now - a question: Did you explain to them up front that there was to be no sale of print ready files for them? Did they ask?
    And finally - from a business perspective - Is not selling them the image files worth the bad comments and publicity that they will almost certainly give you and probably already are giving out via facebook and other review sites or social network sites?
    Just sayin'
    Dave
     
  4. Since you probably don't really want these people as customers in the future, and the releases are not required/necessary unless you're going to resell the photos as released stock, just give them back.
    You can't win in a situation like this, and in reality you don't need to, so why throw money at a lawyer "just because"?
    I don't think they have a legal leg to stand on in terms of their "right to take back the releases..." but I'm not a lawyer.
    I'd just send them the releases, and delete the files, and move on. They are not, and never will be, a good customer. Say goodbye to them.
    <Chas>
     
  5. I also don't think they have any legal right to the releases back but at the same time I can't see any reason not to.
    The only reason you would have for not returning them is if you wanted to use the images for your own publicity. Personally I wouldn't use the pictures for publicity if I was in dispute with the customer.
    I think I would just sell them the C.D. It's the only way you are going to make any money from this session.
     
  6. Firstly this involves young children. Every one is getting more protective of childrens privacy/security/safety so I have some doubt as to whether you would win the legal argument. I presume the release includes rights to publish the pictures or use them as advertising against the wishes of the parents? If the answer is 'no' then what benefit is there to not returning them?
    And almost any contract can be rescinded under certain conditions and I wold presume that is the case here. Whether you give the agreements back or not becomes irrelevant under such circumstances.
    Why won't you sell them CD?
     
  7. I don't think this is worth your time let alone lawyering. End it peacefully and amiably.
     
  8. Do the parents have the rights to take back the releases?​
    It depends on whether the release is merely a statement giving permission to use the likenesses in the relevant imagery which can be revoked or the kind that is or is part of a binding contract.
    almost any contract can be rescinded​
    Not true. If it were, contracts would essentially unenforceable and pointless.
    I wold presume that is the case here.​
    On what grounds?
    ------------------------------------
    You may not want the clients 'getting away with' their tactics even if the law is on your side but, as others have mentioned, the legal rights that might exist may not be worthwhile to assert. In any event, don't use our comments for legal advice. Get that from an attorney in your area.
     
  9. Fighting isn't always the best option.
     
  10. I "LIKE" (always wishing this was in Facebook format) Luis' statement. Not worth the time and trouble. Hand over the release, reimburse any money, forefeit the sale and enjoy the holidays! Trust me, I know it's easier than it sounds and you're tempted to cling to your pride when you KNOW you're right (we've all been there) but when given a choice to be right or happy, choose happy. Happy holidays to you!
    :) Karen Lippowiths
     
  11. Seriously? you are willing to salt the field over this - ? IMHO fighting about this isn't worth it...give them the release back and think about doing business in a grown-up world. Forget about your reputation, it's ruined by this and the parents will make sure everyone knows what you did to them. Sheesh!
     
  12. apart of the legalities involved I noticed you wrote this:
    Long story short, I won't sell them a CD that they can print off​
    why because for one you can set your price accordingly. Suppose they would buy a few prints. It would be quite easy for any client to scan them and reproduce and distribute them without your knowledge. Just something worth mentioning and worth thinking over I think.
     
  13. I did a photo session with a family that had 10 month old twins. So of course I had one of the parents sign two model releases for both of the babies/kids.​
    Why? Man hires you to take a photo... what on earth do you need a model release for? The only possible reason to get a model release is if you are going to resell the family pictures to someone else. Creepy. Stupid of the parents when they can sell their twins on their own, why give anything away.

    Long story short, I won't sell them a CD that they can print off of so the parents won't buy any prints and they want the model releases back. I won't give them the model releases back and they're saying the parents have the rights to take back the releases and they're getting a lawyer to get them back.​
    Was it part of the deal to let them buy a disc? Did you actually discuss with the client specifically what you were doing for your fee? Because A. if you did , the client knew going in that your plan was to nickel and dime them over every phase of the project and they have no grounds to complain now and B. if you did not, the clients are even stupider to have hired you without knowing what they were paying for and I have no sympathy for them .
    It is your choice not to shoot film, or provide contact sheets or to create handmade artisan prints . However if you choose not to be a printer why are you involving yourself ? Why do you - or anyone who opts solely for file creation- feel compelled or justified tacking on 30 or 50% when you are simply farming the work out ? If you are not making the prints you shouldn't be charging for them. Charge for the shoot. Make your money for the work you do.
    Which - I repeat one more time- should be clearly laid out to the client in no uncertain terms and with a clarity which allows for no possible confusion.
    Do the parents have the rights to take back the releases?​
    No. Unless for some reason even odder than their agreeing to sign the thing in the first place, the model release has a clause to get them out of what they're signing. Or the job contract has a clause to nullify the model release.
    And either way, any advice on what to do about the lawyer situation?​
    If and when it happens you'll hire a lawyer and deal with it. I'd also strongly suggest revising your seriously flawed business model if it were my place to do so, instead I'll just say good luck.
     
  14. It's my understanding that blanket model releases as are generally used by photographers for portrait and portfolio modeling session are weak legal documents because they are so sweeping and all inclusive. Strong releases as are used for advertising and other published commissions are very specific, and relate to you hiring a model for a specific job, and this is what makes them enforceable and effective (i.e., they list specific markets and media for publication, duration, size of reproduction, and have one or more witness, etc.). Blanket, all encompassing releases are good for protecting yourself generally, but they not only beg the question of informed consent (would anyone really informed about copyright and rights management and the uses of images really sign away all of those rights?), and secondly, they hired you, not the other way around, so you're effectively asking them to allow you the possibility to profit from these images in the future (through licensing for stock for example) without compensating them in accordance to the market value of that use. Their aim is basically to protect the future distribution of likenesses of their children.

    Also, I'm sure your business model is based on holding on to original files and providing prints, but generally I've found that this is a hard concept to communicate to clients -- they really have an expectation of receiving the files. I mean, you could market yourself very carefully as providing unique prints (maybe silver gelatin or some older process), and people come to you specifically for that kind of print, or you could require an initial purchase of prints, but people feel that keeping files is like a form of extortion.

    Don't let it get to the lawyer stage. Think minimum, bargain basement initial cost around $5,000. It's clearly just a misunderstanding.
     
  15. I have to agree with Dennis. It sounds as though expectations were not communicated effectively at the time that the
    deal was made. Did you tell the parents up front that they would not have the opportunity to buy the files on disc but
    only your prints? Did they accept these terms?

    Did you explain to them what the model release was and how you intended to use the photos of their
    children? If so, did they agree to this? Or did you neglect to disclose your intentions?

    Would you want someone in your own family to be treated the way that you have apparently treated these customers?

    From what I am reading here, this sounds like the kind of situation that gives photographers a bad reputation. Give
    back the model release (all copies) and give them large jpeg copies of all of the files and hope that they don't say
    nasty things about you to every last person that they ever meet.
     
  16. Life is too short to deal with twats. Especially if they're not very photogenic.
    Give 'em back the model releases, delete the photos so they don't waste space on your hard drive, and take pictures of more interesting people who don't have issues. Life will be sweeter!
     
  17. Make a copy of the release, and send them the original. this way you will still have a hard copy, and more then likely the law on your side. They don't need to know you have a copy, and then you can do as you please with the shots (as agreaded apon). even if they lawer-up it will only go before small clames (depending on the amount), or a mediator. Don't even mention that you have a copy! I would just send it and break contact with them.
    If you check out the sight http://www.handelonthelaw.com/home/RadioQuestions.aspx it will direct you to lawers who answer questions. More then likely they will say the same thing I did.
    I'm no lawer, but after years of listening to this guy (a well respected lawer) I trust the advice he gives.
     
  18. Only one parent signed the releases according to the OP. Not good, and most likely the root of the problem.
     
  19. Legally, if you spelled everything out CLEARLY, the parents have no right to this. If they signed off on it, then you can do anything you want with the photos, provided you don't use them for illegal purposes. If the parents agreed to let you use, "Photos taken for commercial purposes, altered, modified, or distorted, without consent or prior discussion," then you could use their kids in a Marlboro ad and they can't sue. No lawyer would even take the case, since they already agreed to it.
    That said, unless you have a commercial application for these photos, it's a waste of your time. Just give them the model releases back, and explain that there is a reason these exist, and they would do well to read one more carefully before they hire a different photographer in the future. If they continue to demand a disc, THEN tell them they need a lawyer, since you have no requirment to provide services without payment. I wouldn't even take it as far as court: I'd give them the disc as soon as the lawyer asks for it. But if they're going to be that brazen, they're gonna' pay SOMEBODY, that's fer damn sure.
    If you really want to rub it in at that point, you could remind them that if they had read your contract more carefully, they would have noticed that your sitting fee was much cheaper than a lawyer's legal fee.
     
  20. This is really quite simple. Nothing you can possibly gain will even begin to compensate for the loss of your reputation. Unless you want negative publicity all over the internet and on the street, give it back for goodness sake. That's right--let them have their way. You cannot, by any business definition of the word, win.
     
  21. Tell them they can buy back the releases cheaper than getting a lawyer and you will even through in a CD and prints.
     
  22. Some "releases" simply give permission to use the images and state the types of ways you are allowed to use them. OTOH, it's not uncommon for a "release" to also include language dealing with "consideration." Something like "In return for valuable consideration received, I grant permission to ABC to XYZ with the pictures." Since none of us know the "long story," nor do we have any of the details of your agreements, contracts or the language of the releases, there's not a whole lot to suggest.
    Return the releases and move on, or hunker down and find out just how unhappy they really are and what your real legal exposure is. That you'd get from a real lawyer familiar with all the details of the situation and the "publicity" and contract law issues at play.
     
  23. almost any contract can be rescinded
    Not true. If it were, contracts would essentially unenforceable and pointless.​
    I admit that was lazy wording, John. I did add the phrase 'under certain circumstances' which is often mentioned in contracts.
    One question that comes to mind is whether the release is considered to be a 'consent' that gives the photographer the right to use the photos until the model changes their mind, or whether it is a contract that, if it lacks a cancellation clause, is non-revocable. I am reminded of the occasional case where a now-famous star who suppresses use of photos taken in their younger days.
     
  24. even if they lawer-up it will only go before small clames (depending on the amount), or a mediator.​
    Don't you have to represent yourself in small claims?
     
  25. @Dan -
    Not always - Small claims court is on a state by state basis and in some states lawyers are allowed; in others they are required - so it depends.
    No matter what - IMHO - the OP should try to resolve this before it gets to that level.
    I'm not a lawyer - but I definitely don't recommend the course of action suggested a posts ago - keeping a copy of the release and sending the original back to the parents, plus using the photos. That is asking for trouble and even more bad publicity.
    Dave
     
  26. but I definitely don't recommend the course of action suggested a posts ago - keeping a copy of the release and sending the original back to the parents, plus using the photos. That is asking for trouble and even more bad publicity.
    It's probably fraud as well if the originals were returned as part of a deal.
     
  27. david_henderson

    david_henderson www.photography001.com

    There's a lot that puzzles me on this thread.
    First why the OP doesn't sell CDs. Its easy enough- just work ourt how much you want to make from the shoot in total, take off what you've charged for the shoot itself, and charge the rest for a CD. All this stuff about " you can't have prints unless you come to me" is a dying business model defended to the end by some photographers and totally ignored and sidestepped by photographers who simply want to give the client what they want, collect the money and move on.
    Second, I have no idea how the release is worded or whether a court would judge on the question of whether it can be rescinded at the request of one party. What I believe I do know though is that there is a difference between deeming that the release would not apply in the future and deeming that it never existed. So if the photographer had made arrangements for legitimate ( under the terms of the release) use of these photographs in an ad. or whatever during the period in which the release was in force, then I don't think there's much that the parents can do to proscribe that activity. Sure that might be affected if a court decided that the release was originally unreasonable, or that the parents had been duped into signing it.
    Third I can't help but be amazed at the number of times the root of this sort of debate lies in both parties not being clear on what the service required and desired outputs really are? Did the parents ask for a CD at the outset? If they wanted a CD why did they agree to a service that didn't include it? Is there any paperwork at all here beyond the releases? Did they ask for a CD up front and you refused to supply it? Were the parents aware of the cost of the prints you offer before signing up- or turning up- for the photo.shoot?
    There seems to be a lot of issues like this emerging on Photo.net recently, where a social photographer of one sort or another is in debate with a client over client behaviour . Its always client behaviour of course because its always the photographer that brings the case up here. It might be unfair to the current poster but I do wonder how many of these photographers are properly professional in the sense of having a thought-through set of business documents and processes? In general consumers don't have much of a clue about how much things cost . They might think that a hypothetical $50 fee for a sitting is quite enough and get quite a shock if they find out at or after the shoot that prints are going to cost them $35 each. So hey, sell me a CD and I'll get this done elsewhere! The answer is always to make sure that the customer understands the entirety of the situation at the outset, understands how that relates to what they want, and that the understanding is enshrined in a contract which sets out the obligations of both parties and the prices/terms that will apply.
     
  28. The blanket releases that photographers have clients sign are intended as a form of protection for themselves -- they're not meant as legal instruments to badger and extort money from clients.

    If as a photographer you hire a model for an ad campaign, you would craft a very specific release about the uses of those images, and the model would have an agent as witness, and all the parties would be well informed about licensing.

    This is aimed at all the posters that are suggesting fighting the parents: When parents come in to have portraits of their children taken, they pay YOU for the service of producing images for their consumption. If you think a court would agree that a reasonable and informed person would pay you, and without any compensation or benefit to them allow you indiscriminate use of likenesses of their minor children for licensing in whatever form, and that the court would agree to entertain that as informed consent, and that further, you would seek to extort money as the condition for the return of the release, you have another thing coming. There isn't even a basis for a contract because you as a photographer have not paid them any consideration for the benefits of using the photographs.

    People sign these documents because they trust you as a person and photographer. As a photographer you have them as a general form of protection. Really, all that they should really reasonably allow is the use of images in a portfolio and for promotion, and that is a reasonable expectation because it allows the photographer material to sustain further self-promotion. It's a completely different matter when you as a photographer hire a model, pay the model, and use the images specifically for profit and licensing.
     
  29. david_henderson

    david_henderson www.photography001.com

    I'd be interested to see if there is any legal/contractual basis whatsoever in Blake Schwalbe's post, or whether he's just explaining how he'd like things to be.
     
  30. Howdy!
    The customer is not always right, but the customer is always the customer, and bad word of mouth spreads ten times faster than good word of mouth.
    It sounds like the OP is clinging to an outdated business model. People expect the digitals these days, partly because of Facebook and e-mail, but also because most reasonable photographers have started selling them, either directly or as part of the sitting fee.
    At this point, the OP has blown it completely. The only possible way to save the situation is to give back the model release with a sincere and heartfelt apology, with an offer to sell the CD at a reduced rate. Personally, I would give them both the model release and the CD.
    Later,
    Paulsky
     
  31. From the business point of view:
    it is best to satisfy your client. If they want to buy digital, sell it to them - give them a license that spells exactly what they can do with the delivered images and PRICE it accordingly. Let them do the math, it usually makes more sense to have it printed.
    Also, a good consultation before the session is crucial in picking the right clients.
    The images are your creation, no one can take it from you. You have the release, use them accordingly.
    If there was a contract you failed to follow, it may backfire though
    Good luck,
    Sergei Z.
     
  32. As others noted, while you probably are in the right and may well be able to win this in court, I see no benefit to do so. Whereas you might win in a real court, in the court of public opinion you are going to lose given societies (well warranted) sensitivity toward children. In short, you're just asking for bad PR, perhaps, depending on how nasty it gets, even of the sort that might land you being lumped in with predators and other types.
    As a photographer (albeit not professional) I am entirely sympathetic, but as a parent I would find a photographer's unwillingness to relinquish a release disturbing. This is probably particularly true for outside parties who are likely to only hear soundbites that cannot portray nuance effectively but are very good at taring individuals.
    Julian Assange might be a good recent example...
     
  33. Or to script the scenario:
    Parent1: Did you hear about that photographer? The parents wanted their photos back and he wouldn't give them - not even the release.
    Parent2: Really, that's creepy. What do you think he's going to do with them?
    Parent1: I don't know, but it gives me the willies. Glad I didn't take my kids there.
    Parent2: Yeah, me too - I'm never going to do that.
    Seriously - first thing that came to mind.
     
  34. Matt's scenario above is very realistic. If they want the release back, give it to them. What do you have to gain by using images of children against their parents' wishes?
    What you don't mention is how much information you provided them with upfront regarding prices, files, etc. Were you totally upfront with them? Did they truly understand?
     
  35. No. Unless for some reason even odder than their agreeing to sign the thing in the first place, the model release has a clause to get them out of what they're signing. Or the job contract has a clause to nullify the model release.​
    ...or the release was not or not part of a binding contract and was only a expression of consent as explained previously.
     
  36. would anyone really informed about copyright and rights management and the uses of images really sign away all of those rights?)​
    Yes. They do with great frequency. Copyright doesn't have anything to do with model releases anyway.
    they hired you, not the other way around, so you're effectively asking them to allow you the possibility to profit from these images in the future... ...without compensating them​
    Who hired who is irrelevant. The issue is if the release is or is part of a binding contract whatever the consideration was given in return.
    in accordance to the market value of that use.​
    Contractual consideration does not have to be market value.
     
  37. Legally, if you spelled everything out CLEARLY, the parents have no right to this.​
    If the release isn't or isn't part of a binding contract, it won't matter if the release is spelled out clearly because it won't be binding.
    If they signed off on it, then you can do anything you want with the photos​
    Assuming the releases are binding the they can be used for whatever purpose doesn't require a release and for purposes that require a release, the use must conform to what is covered on the release.
    If the parents agreed to let you use, "Photos taken for commercial purposes, altered, modified, or distorted, without consent or prior discussion," then you could use their kids in a Marlboro ad and they can't sue.​
    The language here says "Photos taken for commercial purposes". Since the photos apparently have been taken for portraiture purposes then this Marlboro ad use is in danger of exceeding the scope of a release with that language.
    No lawyer would even take the case, since they already agreed to it.​
    Since the example language is so poorly tailored to the use described which is about cigarettes and a deep pocket high profile business its practically a forgone conclusion that an attorney would be willing to represent such claimants.
     
  38. Don't you have to represent yourself in small claims?​
    It depends what state the court is in.
     
  39. I definitely don't recommend the course of action suggested a posts ago - keeping a copy of the release and sending the original back to the parents, plus using the photos. That is asking for trouble and even more bad publicity.​
    Lawyers routinely recommend keeping copies of legal type documents that are sent or given to anyone let alone belligerent parties. Copies can be marked as "VOID"
     
  40. There isn't even a basis for a contract because you as a photographer have not paid them any consideration for the benefits of using the photographs.​
    I have no idea what, if any consideration was exchanged. How is it that you know? Also, consideration does not need to be in the form of payment nor does the photographer have to hire anyone. Its a matter of whether there is a binding contract involved.
     
  41. Despite all the legal discussion, I wholeheartedly agree with everyone on the bad business situation that should be avoided even if the client, in this instance, is wrong.
     
  42. Life is too short. I would give them the release and the digital files. Smile. And then go to something rewarding. Unless you really, really, really believe these are priceless pictures (royalty, presidents, famous people), you have already spent too much time on it.
    Just my thought.
     
  43. John -
    Sorry I wasn't more specific in my advice about sending the original back and keeping a copy -
    What I meant was that if you return the release to the parents, DON'T EVEN THINK about using the photos - even if you keep a copy of of the release - (which you should do and mark it as you suggested - VOID).
    Dave
     
  44. I skipped ahead, so pardon me if I missed something in a prior post. The first response of Mr. Haas, was 'right on'.
    Did the parents sign as 'guardians' for the minor children . . . and it was expressly stated so?
    If not, that might be a very major sticking point if you ever attempted to use the releases.
    That wording might be buried in fine print somewhere, but in every model release I ever had that involved a minor, it was on the signature line so no one could say 'I didn't see it' or their lawyer could say of his client "they're stupid and this was a 'contract of adhesion'" ('take it or leave it contract', which courts disfavor and construe strictly against the party that wrote it or offered it up. Such contracts are 'no bargaining contracts'. You probably signed many when you bought a car, a cell phone, and almost everything else . . . in the modern day world).
    In fact, when I was in the business of making contracts, I specifically spelled out that each and every term in a contract with me was negotiable, for a price, but that the contract was by far the LOWEST price, then informed clients how changing a word here or there could send the price of my services to the sky, or cause me to demand lots of money up front . . . . unless they consented to to sign my offered 'lowest priced' contract. And it was true, everything was bargainable; no one ever wanted other than the 'lowest priced' contract, but if they did, they could have it.
    There were some legal things that had to be in contracts that were NOT negotiable of course, and that also was spelled out.
    Some of those things had to be in certain type size, and for a photo model release, one should have it in pretty large type when dealing with amateurs (non-pros) and especially parents of minor children, with a special signature line where (in my opinion) they should sign as parents and guardians for the minor child x x x x (stating the child's name). It ain't bad to have the kids sign in case they turn 18 (majority) and want to disavow it . . . and if it's to buy food for them, also to state that . . . . as they can't easily disavow such a contract if 'for necessities'.
    Judges are looking stronger at all things involving young kids; remember Shirley Temple turned 21 (majority then) and found her father had spent all her huge earnings as a youthful movie star, so in California at least there are all sorts of laws regarding how and when parents (or others) can act on behalf of minor children in providing services such as acting and modeling (talent).
    There may be exceptions for small business such as a photo studio or business, and I won't get into that.
    Your jurisdiction also will have its own laws, so you should only take any advice from an experienced local attorney or one who is experienced and trustworthy to look up the law (for which you may have to pay by the hour).
    In general, as pointed out in first responses, unless they have an attorney on retainer for other matters, this ain't never going to court . . . unless those twins' photos ends up on a jar of Gerber baby food.
    If you send photos to stock, that's where the photos could end up, too, or somewhere else prominent, and then you'd have some 'splaining to do' with the parents and the stock agency about that lawsuit no one thought about when you got that stock agency check for those cute twins' photos!
    I practiced law long ago, in a galaxy far far away, ending more than two decades ago; I am not dispensing legal advice, and only writing in generalities; I have not seen your papers and I am NOT your attorney, and you cannot rely on what I write.
    You have received some good business advice above, about courtesy, good business practices, etc., and unless Gerber is knocking at the door, best to worry about being YELPED rather than how to keep your hands on those precious releases.
    Consumers can fight back these days, whether right or wrong, and one complaint can generate two to twenty others that the others weren't going to make, when they see one published by someone else, as they engage in a sort of 'piling on' effect,
    You're in a business, and this ain't a business to be hard-nosed unless someone gives you a bad check or gives you a firm wedding date, a good check to reserve that date for a wedding, and both sign a non cancellation agreement, or one that calls for payment to you of liquidated damages (e.g. the deposit -- don't call it a forfeiture, as judges hate 'forfeitures) for a date in June when you have to turn down three others weddings, and cannot at the last minute substitute.
    Use your best business sense, do so quickly, and BE CHARMING.
    Charming sells!
    Good sales people know that turn downs mean lost opportunities, so find out most kindly if you can and in a charming way, just why the parents decided against you -- it may have been reasons entirely unforeseen, and then you have a SELLING OPPORTUNITY as you re-tailor your services to meet their needs . . . . .
    Smart companies, such as cable companies, when told you are going to cancel, will turn you over to specialists who are expert in re-selling you their cable service (etc.), such as chopping off parts of the bill that those in the billing department wouldn't discuss, etc. You can take a lesson from such big companies.
    Any time you're face to face with a possibly disgruntled customer, you're behaving nicely and with charm is a big selling opportunity . . . .
    You never know when being charming and able to the smallest client will bring in a person who is your best publicity agent. It can be better than hiring an advertising agency.
    I once had a number of such people (onetime clients) who on their own periodically combed their friends' personal affairs in idle conversation without any request from me, for 'cases' they might send to me, because they thought I was the best person in the world for everything in my field and sending their friends to me was a 'personal favor'. I saw always that the favor was returned to the people who came to see me.
    They sent me EVERY person who would come to my office with a problem, and I'd sit there, almost always without pay, and try to resolve the matter . . . . sure that my former clients who sent me friends would keep sending more, which they did.
    I made a small fortune off such referrals, though I never asked for them and got such referrals from a number of people for whom I had only done very minor things and sometimes (oftentimes) never even charged.
    Some of those new people came to me for 'small matters' which I resolved on the spot had friend with cases that settled in six figures or higher . . . . . and I was forbidden by law from paying a referral fee; sometimes they'd sit in my office, call their friend and say 'come down here now' (I'd stay to midnight or 2:00 a.m. if it meant taking in big case from a new client; the next day they'd find someone else, but when I was finished, almost no one left.)
    Everybody who walks in the door is a potential client referrer, no matter how small their matter.
    You never know who they're friends with or relatives of.
    The same goes if you displease them.
    'A pleased person tells his friend; a very displeased person tells six people (or more).'
    Reputations are very important in the photography business - just read the wedding forum regularly as I do. (I don't shoot weddings.)
    In fact, in any retail business such as a photography business, this advice about being charming might even be the Golden Rule.
    When I graduated professional school, a doctor who also went to that professional school and earned a doctorate with me, commiserated with me about the great number of new graduates in our new field.
    My father in law set me straight when I suggested the field might be overcrowded.
    There never are enough good ______________ (insert profession), he said.
    Also, the doctor friend who attended professional school with me an graduated with me offered me this advice about the THREE A's of success in business that he learned from his medical school professor and mentor.
    The Three A's of Success in Business:
    1. A. Availability
    2. A. Amiability
    3. A. Ability.
    He counseled if you just have.
    1. Any one of the above you might be successful
    2. Any two of the above, and success was probably awaiting you.
    3. All three and you were almost certain to be successful.
    I never forgot that in any endeavor I pursued.

    I suggest you do not either.

    john

    John (Crosley)
     
  45. Give them the images and the releases and tell them to stick it where the Sun Don't shine, Lifes too short to deal with A**H*les
     
  46. I amend that above. Destroy the images .
     
  47. I thought that might be the case David and agree that using the images is unwise except for reference purposes should something come up one day.
     
  48. I think you have all fallen victim to a troll. Interesting read tho.
     
  49. Sell them the disk. 90% of my customers only want to post online and only want a disk. I haven't done prints in
    months.
     
  50. Do portrait photographers really use images of their clients for commercial licensing based on the release that a sitter signed as part of the portrait session, without any further specific releases?
     
  51. Blake - I doubt it.
     
  52. Blake - I doubt it.
     
  53. Do portrait photographers really use images of their clients for commercial licensing based on the release that a sitter signed as part of the portrait session​
    Usually not since it would alienate so many customers.
     
  54. @blake -
    None that I know of.
    I ask my clients if I can show their images on my web site and facebook. If they say no - then it's over - I don't put the images up. I never have gone into a portrait session with the intention of selling the images for a commercial use nor have I come out of one thinking that I would start. Not because the quality isn't there - but rather because that isn't the intent of the session.
    Parent or legal guardian. In most cases - sitters are not considered legal guardians.
    Dave
     
  55. I amend that above. Destroy the images.​
    That sounds like a wonderful idea. To add emphasis, you might want to stick your tongue out and show them a nice selection of rude gestures. That will demonstrate clearly to your customers how unreasonable they were. Further, it will help to ensure that you won't have problem customers in the future - because you'll probably never have another CUSTOMER again.
    I don't understand how anyone in business could ever seriously consider taking action to spite a client. You might THINK about in an effort to deal with your own stress and aggravation, but taking such action is business suicide.
    It all comes down to the Golden Rule: treat others as you would like to be treated. If you paid for a portrait session, and after a disagreement the photographer said, "Okay, fine, I'll just destroy the images," I'll be that you wouldn't leave their studio with a positive impression.
     
  56. I don't know about the right to take back. If I were them and realized my mistake of signing the release then I would consult my lawyer to see what it takes to get the release back. I would be willing to pay good amount of money to take the release back from you. It's simply a very stupid mistake to sign the release and for that as parent I would be willing to pay dearly to get it back if I can at all. The wiser thing to do is not to sign to begin with but then mistakes are already made.
     
  57. It's simply a very stupid mistake to sign the release and for that as parent I would be willing to pay dearly to get it back​
    We weren't told what the scope of the release is. It may very well be limited for portfolio sample use. If that's the case then its not as likely to be "a very stupid mistake" or worth paying "dearly to get it back" compared to with uses.
    The OP asked about the right to use the images, failed to give sufficient information to get an accurate answer and many people responded, despite the question, that it wasn't a good business decision to assert whatever rights the OP has in any event. That's really all there is here.
     
  58. Spearhead

    Spearhead Moderator

    The OP...failed to give sufficient information to get an accurate answer​
    Until the OP responds to the requests for more information, John's response is really the one that matters for the release issue. There are other business issues that have been raised about the whole nature of the OP's proposed interaction with the client, and those are reasonable. Otherwise, this should really sit until the OP gives more information.
     
  59. And if the OP is facing legal conflicts, he probably shouldn't discuss it on line either.
     
  60. Spearhead

    Spearhead Moderator

    (I think "Nicole" is usually a "she")
     
  61. As a parent, it's photographers like the OP who really make me feel I should never hire another photographer to take pics of my kid. I mean, what the heck! Just give them a CD or if you don't want to do that, cancel the release and return it. I hope the OP's herself not a parent (hard to see anyone with kids acting like this). And if they do sue you, I personally do hope that they win because otherwise it is indeed a very scary situation.
     
  62. I personally do hope that they win because otherwise it is indeed a very scary situation.​
    In what way is it actually scary? I think this is just paranoia.
     
  63. Surprising that the OP used her real name to post this. If you google for "nicole powell photography" her website's the first link (the pictures in her portfolio there match the pictures on her photo.net album).
     
  64. Steve,
    So I hire someone to snap my pics, and I don't really read the entire agreement. She makes me sign some papers (that again I don't read in detail). Both are my fault, but most people don't read agreements in any real detail.
    After the session I am told I won't get digital copies of the images (a fact that was most likely well disguised prior to the session). I get upset and want to cancel the agreement. At that time the photographer tells me that he/she has model release rights and I can't get them back. So here's a situation where she/he has pics of my children, that I can't get copies of, but he/she can distribute it as they wish! To me that's a big invasion of my privacy and if it's not defensible under law, then it is indeed a very scary situation.
     
  65. david_henderson

    david_henderson www.photography001.com

    Nish Sivakumar
    you don't know that anything in your version of events is true- its what you think might have happened. So why risk spreading inaccurate information that comes though more than a little uncontrolled and paranoid? Why don't we just wait for the poster to tell us what actually happened. This could yet turn out to be the parents more to blame than the photographer. Lets just see.
     
  66. Well, the parents are not present to give their perspective. The photographer only gave us half-facts. And has not replied despite getting several responses. What I said is based on what I read from her post. If she provides more information, and that information indicates that it was the parents at fault, then I reckon we can re-discuss things differently. So I agree with your last sentence, let's see what she follows up with.
     
  67. Why would you ask for a release up front anyway? If they hired you, they should not have signed the release and they should have found another photographer if you had insisted. Perhaps they should have asked you for a release.
     
  68. "she can distribute it as they wish!"​
    Any photographer owning the copyright can use and distribute images "as they wish" with narrow exceptions which fall under the umbrella of "invasion of privacy". A model release is used to shield against liability if the use fits in one of those exceptions. If a particular use fitting one of the exceptions exceeds the scope of the release language, the release won't cover that use. As already discussed, the scope of the release here has not been explained at all. Portraiture releases, when used, tend to be for portfolio sample use only. Unless you are privy to facts that we don't have, there is no evidence showing "she can distribute it as they wish" within any of the exceptions.
    that's a big invasion of my privacy and if it's not defensible under law, then it is indeed a very scary situation.​
    Again, as already discussed, it may only be a release for portfolio/sample use which is difficult to describe as a "big" situation. Moreover, a release is designed to be proof of and/or be a contract so that the use described will specifically not be an "invasion of privacy". Its a voluntary agreement so there's no reason to be scared in any event.
    if they do sue you, I personally do hope that they win​
    There isn't enough information given to know what the release covers, if the customer did not know what it meant or even if its effective or not. Its absurd to wish some lawsuit to be won when one doesn't even know what it would be about.
    Many people have discussed that asserting all the rights, whatever they are, is not a wise business decision because its not worth alienating customers. No one can arrive at any actual legal conclusions here because there isn't enough information to do so.
     
  69. The OP has not stated the nature of the contract, the negotiations that led up to the contract, nor what function the release serves in relation to the services contracted for and provided, or not.
    As such, most of the comments here involve a lot of speculation. If the OP wants effective feedback, supplying a comprehensive factual background is essential. Communication and mutual understanding are essential in the making of any contract. Same for for getting feedback from the time and experience of the members of the forum.
    Her web site does indicate that the actual prints are done by third party print labs, not by herself. Another curiosity is the published bias in her pricing. Almost any male customer has a 25% markup from the price charged to females, or to males that are in the military, police or firemen. I'd love to hear why what looks like deliberate commercial sex discrimination, legal or not in Colorado, is a commendable business practice.
     
  70. Almost any male customer has a 25% markup from the price charged to females, or to males that are in the military, police or firemen. I'd love to hear why what looks like deliberate commercial sex discrimination​
    The site indicates there is a discount "to Military, Police and Firemen and Women". It appears, in the context of the paragraph the criteria is contained in, that the discount applies to both genders serving in those roles. If it "looks like deliberate commercial sex discrimination", its probably due to inartful drafting.
     
  71. Give the release back and then delete all the photo files.
     
  72. This incident is part of a larger trend; and as such, it should not be viewed as an isolated incident, but rather, seen for what it is. Because, at heart, this issue is primarily about educating the customer.
    We now live in a time when customers see the photographer as merely an agent to produce the pictures, but not the one who will RE-PRODUCE the pictures. As such,while they are grateful to be presented with the beautiful results of your work, in their minds, your job is to relinquish the digital negatives, so that they can forward them to the printing service of their choice – Snapfish, Walmart,or a host of other options.
    In times past, customers neither had access to your negatives, (on film, that is),nor did they possess the darkroom skills to turn those negatives into photos. You were an indispensable part of the chain of reproduction. But those days are over – and for the most part, all of us are glad to see them gone, because they involved a lot of tedious tasks which we do not miss. However, the question then becomes, have we done a good job of educating the customer to let them know that we are either (a) an excellent option for printing your photos,and as professionals, we have access to the best quality printing labs, or (b) as a stipulation in our contracts, we do not merely sell our images on a disk to be reproduced by someone else, but as a complete package, which includes being the printers of our own work?
    You'll notice that the key words above are "option" and "stipulation".
    We must realize that, in the eyes of the customer, we are merely one of numerous options available for printing your photos. they are used to purchasing many of the tasks that were formerly the exclusive domain of professionals – such as printing albums and high quality photo books – and they can place those orders from the comfort of their kitchen table, and receive books that easily rival the quality of the best photo books at Barnes & Noble.
    So, when we come along and surprise them by saying that we require all of their printing services to be purchased through us, it comes as a shock to them… And they will indignantly assume that you are holding "their" photos hostage.
    This is a matter that is going to become more and more commonplace, as consumers become more familiar with all of the third-party printing options available to them. And so,it really boils down to a matter of educating the customer as to what your contract requires, before your photo session concludes.
    If they understand that you sell packages of images, and you are not merely a gun for hire, this will go a long way in establishing both your credibility as a professional, and it lets them know right up front that they will not be merely receiving a disc of images as the conclusion of your services.
    While a number of startup photographers choose the business model of shooting the images, and immediately providing the client with photos straight from the camera, most serious professionals do not want to have their work out there, without at least some basic retouching or enhancement of those photos. And because printing the images allows the photographer to offer a high-value, and potentially profitable, service to the customer. So, how can you fault a photographer for wanting to add a lucrative revenue stream to their business?
    But again, the key words in that paragraph are "high-value"… Because many customers do not consider it a high-value service to order images which they can just as easily order for themselves. And, to be honest, many of the labs which cater to consumers are every bit as good as the labs geared towards professionals. (Obviously, there are also a number of stinkers out there, as well. But the gap between consumer level, and professional level, is narrowing every day… And in the minds of our customers, many of those differences seem negligible at best.)
    So I return to this theme of education: Do we as professionals do a good job of selling the reasons why using us as a middleman is valuable to the client? Can we justify in their minds the added expense of paying us to do a job which they can easily – and often enjoyably – do for themselves?
    Whatever the answer to that question may be, if we make it known up front – and place language in our agreements which spells this out clearly – and we have gone a long way in avoiding misunderstandings such as the one in which this photographer currently finds himself embroiled.
    In fact, having a separate checkbox which the client must both checked and initial, can be very helpful. It can be short and sweet, with words such as, "I understand that the photographer does not sell CDs of images, but rather complete packages, as outlined on their website."
    Now, they may entirely forget that they ever checked and initialed this box, it comes in quite handy when later discussing the matter with clients. I have used this technique for years in a variety of businesses, and it does wonders to soothe the savage beast who says, "You never told me that!" You merely reply in a soft voice, "I could've sworn that I did… Let me just check your file real quickly to make sure, because I have a terrible memory for these things... Oh, there it is… yes, we covered that… And right here is where you initialed it. But we had so much going on that day, that it would be easy to forget about it."
    What this does is to allow the customer to save face, by gently showing them the error of their thinking,and letting them know that it is easy to forget such a detail… Although you most certainly did cover that information with them, and they agreed to it in writing.
    Now, for many customers, this is all you need to do. But in my experience, there are simply people out there who know good and well that you covered that stipulation, but they don't care. To them, a contract is something that they are used to weaseling out of whenever it suits them – and these are also the people who are the first to mention getting a lawyer.
    Often this type of customer is simply using a tried-and-true technique of getting concessions or freebies from a vendor – in this case, you.since you are most likely a sole proprietorship, they know that you are likely to give in, and not be able to hide behind the phrase, "I'm sorry, but that's the company policy" - the way a national chain might do.
    However, I have found that if a customer mentions getting a lawyer, it works quite well to respond in a soft and helpful voice saying, "I understand what you're saying… And that's why we have already consulted a lawyer for you. I'm not a lawyer myself, so we had our entire agreement thoroughly reviewed by a legal staff, to make sure that everything was proper. In fact, that's why we have folks initial this little box right here, just so that there are no misunderstandings that all. So, according to the lawyers, everything in our agreement is just as it should be."
    That pretty much shuts everyone up, because in a very demure but unmistakably firm manner, you let them know that you are not going to be bullied, and that the law is on your side. And there's not much that they can do, when you point out to them that they not only signed your agreement, but they specifically initialed the portion in dispute.
    and if, in that rare instance where someone says, "I still want to discuss this with my attorney", then you can offer to scan and e-mail a copy of the agreement to their attorney… Adding, "and I'll be glad to highlight the portion where you initialed your consent, in case they have any questions."
    Your goal is not to make the client feel stupid; you can win the battle and lose the war. At this point, your goal is to help them ease out of that confrontational mode, and back into being a satisfied client. This is where storytelling really comes into place.
    By telling a short and simple story about another customer in a similar situation, who also had a misunderstanding that was resolved to their satisfaction, you let them see that they are not alone, and that they have no reason to feel stupid.
    Simply saying, "you know, I had a customer last week in a very similar situation. She was so used to printing her own photos, that it just seemed natural to her to assume that we would just hand her a disc of images print them herself. In fact,she said she really looks forward to creating her own photo books. But here's what she found – I told her to just wait a couple of weeks until her order arrived, and she was see how what we offer is very different from what she has available as a nonprofessional. And when she finally saw her photo books, she told me that she could instantly see that this was on a much higher level than what she had ever been able to do on her own. She said that both the quality of the book, and also the quality of the design was obviously done by professionals. And so, while at first she wondered why we didn't just sell CDs of our pictures, she said it all made sense once she saw the final product."
    speaking of contracts, there is one other troubling aspect to this kind of dispute, which was mentioned above; namely, the ability for a disgruntled consumer to trash your reputation through a myriad of options – such as Facebook, ePinions.com, yelp.com, the Better Business Bureau and many others.
    I also include in my contracts a simple stipulation which says that in the event of a dispute, the customer agrees that they will not post negative information or reviews about your business without first agreeing to arbitration.
    It is a very thorny issue these days when negative comments from a single customer may be that what potential customers first encounter when doing a Google search of your business.
    I am very upfront with every customer about how highly I value my reputation. I let them know that if they have any problems at all, we generally bend over backwards to resolve them. But I also let them know that it is a two-way street, and that each customer has responsibility to let me know if there's a problem. I use a simple phrase, "I am The World's Worst Mindreader! If you are having a problem,you have to let me know about it… Because otherwise, I will have no idea what you are thinking. And the last thing that I want, is to find out that a customer is venting on their Facebook page to all their friends about some simple problem that I could've easily solved. And because we value our reputation so highly, we've had to include a paragraph in our agreement which simply says that if you have a problem with us, you'll work with us to resolve it first. Because we have seen perfectly good businesses trashed publicly, all because the client didn't understand some basic matter – such as, they thought the photographer was going to simply hand them a disk of all the pictures. Because once negative words get out there on Google… Then you can pretty much never take them back. So our policy is simply that we ask you to let us know right up front if there's any problem, so that we can take care of it. Sometimes it's our fault, and sometimes it's the fault of the customer… But either way, we just want to get things settled everyone's satisfaction. Because after all, the whole reason we are in business is to make people happy. Does that make sense?"
    What this does is to get the customer on your side, like an ally. Everybody knows someone who is a loudmouth or a hothead, and most people now realize that the Internet gives people a worldwide megaphone for their ( sometimes unreasonable) rants. And they all know somebody who has used their Facebook page has a forum for spreading bad word-of-mouth. So, by simply asking for the opportunity to work things out, before a person decides to make a permanent record of their dispute, most customers will actually want to be in the role of the good guy, rather than the hothead.
    Deciding when to give in to unreasonable customers is something that each professional needs to decide for themselves. I have to admit, there's something about having my reputation held hostage by the threat of a bad online review, or negative Facebook comments, which really sticks in my craw. And yet, as a realist, you sometimes have to bite the bullet and let people go as sweetly as possible – even when what they really deserve is a swift kick in the rear, and a firm shove out the door. But fortunately, those people are few and far between. Yet the damage that they can do far exceeds their tiny percentage of your total client base. And so, you have to decide in every instance when to take a stand, and when to merely wish them well and swallow the loss.
    But my purpose in writing this is to say that a large part of the blame does, indeed, rest on the shoulders of the photographer. Because a small amount of client education upfront – not to mention, aptly worded language in your contract – can help to head off hard feelings down the road.
    How hard is it to simply say up front, "By the way, you'll notice in our agreement that all of our finished products come in the form of complete packages. We are not like those beginning photography students on Craigslist who offer to sell you a CD of pictures straight out of the camera. We spend a lot of time after the shoot lovingly enhancing each and every shot to make sure that it is worthy of having our name on it. That's also why we only use labs and vendors that we know we can trust, because we don't want to entrust our hard work to the kid in the photo lab at Costco or Walmart. Those places are fine for snapshots, but I have a feeling that the reason you chose us is because you want your pictures to be at a much higher caliber… And that's why we can ensure that every photo in our packages looks gorgeous."
    That one little paragraph may save you a lot of heartache down the road. And it may also save you some cold hard cash, that might normally line the pockets of a contract attorney. And most importantly, it helps to preserve your reputation – because, unlike the so-called "permanent record" that teachers threatened you with when you were in high school, the Internet is the ultimate permanent record. And once those negative reviews go out there, they are almost impossible to erase.
     
  73. A successful business is one which gives the customers what they want (and for a good price). As a business you cannot dictate what the customer is going to get because if the customer wants something else he/she will go elsewhere.
    Business models need to change with the times and if there is an increasing number of customers who just want a CD of images which they can print where they like you can either provide that service and make some money from it or let them go somewhere else.
     
  74. I'm surprised at how many responses (almost all of them) suggest the photographer give up the releases and give the CD. It hardly seems likely the photographer contracted with a customer for photos where the customer didn't know the cost up front.
    It would seem the customer now wants to renegotiate the deal, and since the photographer refuses, they want the releases back in a purely spiteful gesture. Then they threaten the photographer with legal action. It's practically extortion.
    What court is going to side with a customer on that? I think none. And I wouldn't even bother to hire an attorney for such a clear, cut and dry case, if the customer actually did take the photographer to court, which seems highly unlikely. The customer is almost certainly making empty threats. What benefit would it be to them to actually go to court, even if they won, which is highly unlikely.
    All that being said, I would suggest the photographer sell the CD, but price it appropriately, taking into account that she will not get any print sales from here on in.
     
  75. I'm surprised at how many responses (almost all of them) suggest the photographer give up the releases... ...the customer now wants to renegotiate the deal, and since the photographer refuses, they want the releases back in a purely spiteful gesture... ...What benefit would it be to them to actually go to court​
    The responses recognize that business issues outweigh legal issues and the desire to assert rights because one can. It is unlikely that there was any significant fee amount adjusted for the releases and that it was just part of the ordinary portrait contract. It appears there was no special need for these particular images and that it would just be part of the sample of the studio's work, not a shoot for a huge advertising campaign. Its just not worth inspiring the people to badmouth the photographer with a version of events that will probably be misstated to be worse than it was. Releases for this kind of use are usually designed to avoid legal liability not as a central part of the business. If the negativity got around too much over something so minor it would be a potential big loss for the business.
    The reality is that is it better not to win the battle that's a sure thing, as you suggest, just to risk losing the whole war by getting a bad reputation from such a trivial matter. Plus, spending the time alone on it isn't worth it. Its just something to have as a defense if one gets sued later in case the complaint came later than it did. Its outlived its usefulness. There's no point in fighting over it now.
     

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