Parents want a model release back

[steve m smith]

<p>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.</p>

<p>It's probably fraud as well if the originals were returned as part of a deal.</p>

[david_henderson]

<p>There's a lot that puzzles me on this thread. </p>

<p>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.</p>

<p>Second, I have no idea how the release is worded or whether a court would judge on the question of whether it can be rescinded at the request of one party.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. </p>

<p>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? </p>

<p>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. </p>

[blake_schwalbe]

<p>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.<br /><br />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.<br /><br />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 <em>YOU</em> 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.<br /><br />People sign these documents because they <em>trust</em> 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, <em>pay the model</em>, and use the images specifically for profit and licensing.<br /><br /><br /></p>

[david_henderson]

<p>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.</p>

[surfidaho]

<p>Howdy!</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>Later,</p>

<p>Paulsky</p>

[sergei_zhukov1]

<p> From the business point of view:<br>

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.<br>

Also, a good consultation before the session is crucial in picking the right clients. <br>

The images are your creation, no one can take it from you. You have the release, use them accordingly. <br>

If there was a contract you failed to follow, it may backfire though<br>

Good luck, <br>

Sergei Z.</p>

[boinkphoto]

<p>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.</p>

<p>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.</p>

<p>Julian Assange might be a good recent example...</p>

[boinkphoto]

<p>Or to script the scenario:</p>

<p><strong>Parent1:</strong> Did you hear about that photographer? The parents wanted their photos back and he wouldn't give them - not even the release.<br>

<strong>Parent2:</strong> Really, that's creepy. What do you think he's going to do with them?<br>

<strong>Parent1:</strong> I don't know, but it gives me the willies. Glad I didn't take my kids there.<br>

<strong>Parent2:</strong> Yeah, me too - I'm never going to do that.</p>

<p>Seriously - first thing that came to mind.</p>

 

[ted_suss]

<p>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? <br>

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?</p>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>...or the release was not or not part of a binding contract and was only a expression of consent as explained previously.</p>

[john_h.1]

<blockquote>

<p>would anyone really informed about copyright and rights management and the uses of images really sign away all of those rights?)</p>

</blockquote>

<p>Yes. They do with great frequency. Copyright doesn't have anything to do with model releases anyway.</p>

<blockquote>

<p>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</p>

</blockquote>

<p>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.</p>

<blockquote>

<p>in accordance to the market value of that use.</p>

</blockquote>

<p>Contractual consideration does not have to be market value.</p>

[john_h.1]

<blockquote>

<p>Legally, if you spelled everything out CLEARLY, the parents have no right to this.</p>

</blockquote>

<p>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.</p>

<blockquote>

<p>If they signed off on it, then you can do anything you want with the photos</p>

</blockquote>

<p>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.</p>

<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<blockquote>

<p>No lawyer would even take the case, since they already agreed to it.</p>

</blockquote>

<p>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.</p>

 

[john_h.1]

<blockquote>

<p>Don't you have to represent yourself in small claims?</p>

</blockquote>

<p>It depends what state the court is in.</p>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>Lawyers routinely recommend keeping copies of legal type documents that are sent or given to <em>anyone</em> let alone belligerent parties. Copies can be marked as "VOID"</p>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<blockquote></blockquote>

[john_h.1]

<p>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.</p>

[stevenseelig]

<p>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.<br>

Just my thought.</p>

[daverhaas]

<p>John - </p>

<p>Sorry I wasn't more specific in my advice about sending the original back and keeping a copy - </p>

<p>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). </p>

<p>Dave</p>

 

[johncrosley]

<p>I skipped ahead, so pardon me if I missed something in a prior post. The first response of Mr. Haas, was 'right on'.</p>

<p>Did the parents sign as 'guardians' for the minor children . . . and it was expressly stated so?</p>

<p>If not, that might be a very major sticking point if you ever attempted to use the releases.</p>

<p>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).</p>

<p>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.</p>

<p>There were some legal things that had to be in contracts that were NOT negotiable of course, and that also was spelled out.</p>

<p>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'.</p>

<p>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).</p>

<p>There may be exceptions for small business such as a photo studio or business, and I won't get into that.</p>

<p>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).</p>

<p>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.</p>

<p>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!</p>

<p>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.</p>

<p>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.</p>

<p>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,</p>

<p>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.</p>

<p>Use your best business sense, do so quickly, and BE CHARMING.</p>

<p>Charming sells!</p>

<p>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 . . . . .</p>

<p>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.</p>

<p>Any time you're face to face with a possibly disgruntled customer, you're behaving nicely and with charm is a big selling opportunity . . . .</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.)</p>

<p>Everybody who walks in the door is a potential client referrer, no matter how small their matter.</p>

<p>You never know who they're friends with or relatives of.</p>

<p>The same goes if you displease them.</p>

<p>'A pleased person tells his friend; a very displeased person tells six people (or more).'</p>

<p>Reputations are very important in the photography business - just read the wedding forum regularly as I do. (I don't shoot weddings.)</p>

<p>In fact, in any retail business such as a photography business, this advice about being charming might even be the Golden Rule.</p>

<p>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.</p>

<p>My father in law set me straight when I suggested the field might be overcrowded.</p>

<p>There never are enough good ______________ (insert profession), he said.</p>

<p>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.</p>

<p>The Three A's of Success in Business:</p>

<p>1. A. Availability</p>

<p>2. A. Amiability</p>

<p>3. A. Ability.</p>

<p>He counseled if you just have.</p>

<p>1. Any one of the above you might be successful</p>

<p>2. Any two of the above, and success was probably awaiting you.</p>

<p>3. All three and you were almost certain to be successful.</p>

<p>I never forgot that in any endeavor I pursued.<br /><br />I suggest you do not either.<br /><br />john<br /><br />John (Crosley)</p>

[james_donahue]

<p>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</p>

[james_donahue]

<p>I amend that above. Destroy the images .</p>

[john_h.1]

<p>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.</p>

[matthew_banks1]

<p>I think you have all fallen victim to a troll. Interesting read tho.</p>

[model mayhem gallery]

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.

[blake_schwalbe]

<p>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?</p>