Model Release Question

[richard_harding1]

Hi there,

 

I wanted to try and clear something up and hoping someone on here can help.

 

Me and my partner, with our 22mnth old, went for a photo studio photo shoot, all went well and we

really enjoyed it. Got some fantastic pictures also.

 

A day or two after the photo studio called us asking if they could use our child's picture as a model,

explained it would be to use on their Co website and photo studio and also told us we would need

to sign a model release form which would be emailed to us.

 

We are still waiting for this form to arrive and we have chased them for this also.

 

Today I have seen the picture being used on Groupon to advertise this companies services.

 

Where do I now stand as nothing has been signed or agreed as yet, I don't know of its relevant bit

no payments of any kind have been made/offered either.

 

I just thought it may be useful to find out some info before contacting this studio.

 

Any help will be greatly appreciated

 

Thanks

 

Richard

[allenahale]

<p>You stand where you stood the day the photos were taken. The studio has used your family photo for commercial purposes without your consent or authorization. The fact that the photo is of a minor makes their violation even more grievous. The problem for them and you has nothing to do with money. The problem for them is that they are using the photo of a minor without a release from the child's guardians. The studio needs to stop immediately and enter into serious negotiations with you and your partner that ends up with a signed model release before they use that photo for commercial purposes.</p>

[Ian Taylor]

<p>Yes, I would go after them for this. Lawyer up.</p>

[allenahale]

<p>I have never been involved in litigation regarding photography but I have been involved in construction contract litigation. My advice to you is to first try to resolve this issue directly with the studio all the while implying that if necessary you will get a lawyer if necessary. There is no reason for both of you to support your local lawyers if possible. There is a problem. They did wrong. You have your rights. It really is up to you and the studio to come to an agreement or for them to stop. Based upon my experience as well as observing a construction claims trial that I was not involved - both parties would have been better served without the lawyers getting involved - it only requires that people be reasonable with each other. Use the savings in lawyer's fees to help come to an agreement.</p>

[john_h.1]

<blockquote>

<p>"You stand where you stood the day the photos were taken. The studio has used your family photo for commercial purposes without your consent or authorization.</p>

</blockquote>

<p> Not really. Richard posted about his eagerness to sign release forms, even "chasing" after them. This demonstrates an intention and/or desire that the image be used for promotional purposes. Hardly a strong case for lack of consent. Especially after being acknowledged here online.</p>

<blockquote>

<p><br />The problem for them and you has nothing to do with money. The problem for them is that they are using the photo of a minor without a release from the child's guardians.</p>

</blockquote>

<p>A release is not required at all nor is it even relevant as a genuine problem. Consent can be given without a release and is done constantly. A release only memorializes permission and may also form a contract allowing long term or perpetual use if the elements of a contract are met within. That is why the studio wanted to send one. To protect itself, more easily, from situations such as that being promoted in this thread. In that regard it erred.</p>

<blockquote>

<p>it only requires that people be reasonable with each other. Use the savings in lawyer's fees to help come to an agreement.</p>

</blockquote>

<p>This is all WAY over the top. The studio contacted the proper parental authority, was signaled that consent was given for the use described and merely was going to send paperwork to cover itself. The use exceeded the specific scope but not as to the type of use. Plus this is sample use which is an exception in many jurisdictions to misappropriation (the type of claim being made here). Reasonableness does not include all this litigation talk and portraying the studio so harshly. This isn't a misappropriation of an image that puts anyone in a bad light or used as an unfounded endorsement. Its not a bread winning legal case. All that needs to be done is for the two sides to clarify what scope of use is agreed to. The studio should get on the ball to cover itself be sending the properly worded release should the clarification be reached.</p>

[qalam]

Unless the parents orally agreed to much more than indicated here, all they have done is to ask with insistance to see

and have the opportunity to sign or not sign the release. They have not yet entered into a binding agreement of any kind.

[richard_harding1]

Ok well I see I've a good few replies.

 

I'll certainly be making a phone call to the studio in the morning.

 

Just to clarify that I've not given permission of any kind (chasing for a form isn't permission to

me...its chasing for a form) for any use of the picture.

When we originally spoke, the studio mentioned wanting to use it in their studio and website only,

(its not on their site so I guess at the moment not in the studio ether) however it is being used to

advertise on Groupon.

I don't intend on paying lawyers etc etc unless needs really really must (and I doubt that) just wan

ted to know where I stand as a parent who's child's picture is being used without parental

permission/desire or intent of any kind (signalled, written or verbal).

 

Was surpirsed to see my son being used tbh.

 

Again thanks all for the help

[john_h.1]

<blockquote>

<p>Unless the parents orally agreed to much more than indicated here, all they have done is to ask with insistance to see and have the opportunity to sign or not sign the release.</p>

</blockquote>

<p>Not according to the fact pattern written. Richard never said he required the release as a condition precedent. Only that THE STUDIO required it. The only reason it does, is to avoid liability and/or to have the consent become binding contractually. These are two complete different scenarios legally. The former a condition for consent. The latter, proof of consent or contractual perpetual consent. We were not told it was the former situation. We were told facts consistent with the latter.<br /><br /></p>

<blockquote>

<p><br />They have not yet entered into a binding agreement of any kind.<br /><br /></p>

</blockquote>

<p>A binding agreement is not needed for consent to count. The only thing a binding agreement does is prevent consent from being revoked unilaterally. Even when there is a revocation, it doesn't count until it occurs and applies to uses that can be reasonably prevented going forward. Moreover, as already explained but ignored, sample use promotion may nullify a misappropriation claim anyway. <br /><br /></p>

 

<blockquote>

<p>Just to clarify that I've not given permission of any kind (chasing for a form isn't permission to me...its chasing for a form) for any use of the picture.</p>

</blockquote>

<p>Subjective viewpoints don't govern. Instead, it is if a reasonable person COULD (not would) conclude consent was given. Implied circumstances count too. We weren't told that the writing was an advance requirement for the consent, just that the studio said it was needed in general. It is within the bounds of reason, under the facts provided here, that the use was agreeable. Since a release isn't ACTUALLY needed and its essentially just a matter of proof after the fact, it is easy for consent to be implied. <br /><br />Perhaps material information about the communication was left out of the story here that will alter the situation. In any event, any respectable studio will discontinue use of a likeness upon request regardless the legal status. Plus, it's not good for business to have unhappy people out there when they can easily get other samples. Certainly the groupon use was beyond the scope that was described. I'm confident the situation will be resolved without a bunch of fuss.</p>

[photomark]

<p>So many legal theories…unless I missed it, Richard didn't even say which state he is in. </p>

 

<p>Contrary to internet lore, the subtitles of privacy laws differ fairly substantially from state to state. For example <a

href="http://codes.lp.findlaw.com/nycode/CVR/5/51">New York's privacy law</a> governing the requirement for releases has this little gem: </p>

 

<blockquote>

…nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the

profession of photography, from exhibiting in or about his or its establishment specimens of the work of such

establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto

has been given by the person portrayed.

</blockquote>

 

<p>Some states have similar clauses, others don't, which is why it's hard to get reliable information from the geographically diverse opinions that you will find on the internet.</p>

 

<p>With that said, I agree that the studio should have followed through. But I think John H. has a pretty good point — It's hard to understand why you "chased down" the studio for a form you didn't intend to sign. If

you didn't want to give consent, a simple 'no' would have been sufficient.</p>