[MRRiley]

DCShooter... What "portfolio trade?" This model (according to the photographer) was paid cash money for her modeling services and signed a standard release.

[Not a Number]

These situations are basically never paid. In fact, "Portfolio Trade" is essentially a synonym in the fashion inudstry for "unpaid practice shoot."

Quoting the defendant:

I paid her via her agent through Paypal and have all the records of it, even providing her gas money to travel to Columbus where the photo shoot was done.

[MRRiley]

You obviously didn't actually read the complaint, which says no "cash money"exchanged hands.

Actually I did read the complaint. No need to be snarky about it! Since the photographer can produce proof that the money was paid, her claim of "trade for portfolio (most commonly "TFP"... not "TP") is toothless.

"Trade for Portfolio (“TP”), which is a modeling industry arrangement where the model does a photo shoot with a photographer on a service exchange compensation basis wherein the photographer gets to add photos to his/her portfolio and the model gets to add photos to his/her portfolio" Forni v. Resnick at 12.

I am well acquainted with TFP work. I do it frequently. Each time there are clear conditions set forth in my release stating what I can do with the images and what the model can do with the images. My "commercial use" clause specifies that the model will receive a portion (generally 20% - up to a certain dollar amount) of any proceeds obtained from the client.

[/I]This is an incredibly common arrangement. ... they are typically done with the understanding that the photos will not be used commercially, which is why Resnick's supposedly explaining to her that he was going to sell her photo for stock rings hollow IMO.

Again, you are assuming that the model is being truthful in her TFP claim. The photographer's ability to provide proof of payment can easily destroy her claim.

If Forni can find the original notice from this guy stating Portfolio Trade, he's pretty much dead in the water

Even if the original notice says TFP a subsequent payment overrides it.

... he's pretty much dead in the water unless he can somehow prove that the photos did indeed come form Facebook and not from Shutterstock.

You seem to have American jurisprudence turned on it's head. It is the model and her lawyer's responsibility to prove that the photographer released, gave or sold the photos to the end-users with the willful intent that they be used to advertise pornography and adult services. You know... the whole "innocent until proven guilty" thing?

Also this gem from the complaint: "Defendant Joshua Resnick (“Defendant Resnick”) is an alleged professional photographer and is citizen of the State of Ohio."

This could rise to the level of "slander" if it negatively affects the photographer's ability to earn a living and could be actionable in recovering financial damages from both the model AND her attorney personally as her willing agent.

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Frankly, what most likely happened here... IMHO... is...

The photographer arranged a shoot with the model, perhaps as TFP and when the shoot began he decided the photos had commercial potential so he decided to offer her payment, OR the shoot was specified as a paid job from the get-go. It doesn't matter either way since he can offer evidence that he paid her/her agent.

The photographer, having obtained a signed release from an experienced model, posted the images on Shutterstock (not everyone can afford or has access to the big agencies) and relied on their TOS to control usage. Shutterstock then relied upon the integrity of the people purchasing the photos to honor their TOS. They only have an affirmative responsibility to enforce misuse AFTER it is discovered. They cannot prevent it affirmatively before it occurs other than through the agreement of their clients to honor the TOS.

In the meantime the model posted the photos on her on publicly accessible internet presence.

At some point the images were either purchased fraudulently or were outright stolen either from Shutterstock or the model's website and the photos were used by the end users in ways which the model found objectionable. In neither case, should the photographer be held liable since he was acting in good faith under a signed model release and under the auspices of Shutterstock's marketing and TOS.

I'll repeat that if the model was smart, she would team up with the photographer and Shutterstock and go after the parties who actually misused the images.

Mike

[GeneV]

Unless the model can prove the photographer willfully sold or gave the photos to an end-user knowing they would be used in the fashions alleged, this should eventually get dropped because the model is suing the wrong person in suing the photographer and perhaps in suing Shutterstock. The photographer is in possession of a signed model release, (notwithstanding claims of coercion which on their face are suspect considering the model's body of similar work). Shutterstock should be protected by their TOS which clearly prohibits the use of the images in pornographic/defamatory uses. Neither the photographer or Shutterstock has any final control over the use of the images if the end-users have either stolen or misrepresented their intended use (violating both the model release AND the TOS). The misuse and misrepresentation was/is being perpetrated by the book/magazine publishers or the parties placing the ads. Frankly, the model, the photographer and Shutterstock should be cooperating to sue those parties (many of which will have much deeper pockets) for misusing the photographs they produced and marketed together.

That's a "false light" claim Gene and is generally actionable against the party making the implication, in this case the book/magazine publishers as well as the parties placing the ads. As long as there was no intent by the photographer to portray a model, who is not a prostitute, AS a prostitute (for instance) he should be immune from any judgements on this claim. Of course, if she really IS a prostitute, she has no "false light" case to begin with.

Mike, she is suing all those people. I doubt that the photographer is her real target, as he has no money and is not the main cause of the problem. However, from my 34 years in business litigation, it seems to me she almost HAD to include the photographer. As soon as she sues the end users, they will claim it is the photographer's fault, and she will end up with an empty chair in court with all the other parties dumping on that empty chair. I spent much of 2013 representing a party brought into the suit for that reason, and the plaintiff was smart to have done so, because her real defendant spent all its time and considerable resources going after my client to deflect from their own responsibility. The plaintiff got the benefit of a major corporation with 1,700 attorneys pursuing her weak claim against my client.

I have to caution that releases and disclaimers can often be trumped by claims of misrepresentation. In most states, it is very hard to get those claims dismissed short of a jury trial. If she says X and he says Y, it usually goes to trial. A "false light" case is a form of defamation, and that is an additional claim to the claim against the photographer that alleges that what was done was not within the scope of the release, as she understood it. That contract claim could apply even if she were a prostitute. It might even make it more believable that she specifically asked that question.

This is why I wrote that we need the release to even see what the starting point of the discussion will be. People download forms off the internet, and they do not always do what they think. All doubt is resolved against the party who furnished the form, so it had better be good. There is a glaring omission from that release form noted in the complaint so it is not off to a good start.

At the end of the day, the goal may very well be to team up with the photographer against the end users. Including him in the suit is often the only way to encourage that cooperation.

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Last edited by GeneV; 01-15-2015 at 07:14 AM.

[MRRiley]

That makes sense Gene... I'm just coming at this from the viewpoint that a signed piece of paper (the release) and evidence of payment (PayPal records) and a prominent TOS (Shutterstock's) are potent defenses for those who have them. The model's claims of additional oral agreements however are hearsay and if they were truly important to her, she should have amended the release and countersigned it with the photographer.

I'd agree that Playboy, Amazon, Clear Channel, etc are the real targets because they have the real deep pockets, but that doesn't really help the photographer because they are going to throw him under the bus from the word go.

I don't understand her suing Model Mayhem though, as a member there, she is undoubtedly cutting off her nose to spite her face since it's likely a major marketing avenue for herself. They are bound to suspend or remove her account.

[GeneV]

That makes sense Gene... I'm just coming at this from the viewpoint that a signed piece of paper (the release) and evidence of payment (PayPal records) and a prominent TOS (Shutterstock's) are potent defenses for those who have them. The model's claims of additional oral agreements however are hearsay and if they were truly important to her, she should have amended the release and countersigned it with the photographer.

Unfortunately, the part of the release which was missing (according to the complaint) is the "integration clause." That is the part which says that the release is the only agreement and that there are no other oral agreements. Just for clarification of terms, her allegation about what was said between the two parties as part of the agreement is not "hearsay," but that is getting too far into the weeds.

Here is an interesting question. If she loses this case, and the court finds that a model release means your face can be used to sell pornography, is that better or worse for photographers who want to hire a model?

[GeneV]

Mostly agree, partially disagree. The deep pocketed targets are certainly the corporations, but the fraudulent inducement and direct contract term claims all derive directly from her initial negotiations with the photographer. As such, I think it goes even further than the "empty chair" appearance problem. He's an essential party, and at the very least, those claims could be simply thrown out under FRCP Rule 19 if he wasn't named in the suit. And even if the court considered this strictly as a third-party beneficiary case under the Shutterstock/Photographer contract, the suit would still require the presence of the photographer and would likely involve impleader and cross and indemnification claims.

We'll agree to disagree on Rule 19. After handling contract cases numbering in four figures, I could count the number of times a suit has been dismissed for lack of a necessary party on the fingers of one hand. However, other parties are free to bring in whomever they want.

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Last edited by GeneV; 01-15-2015 at 08:36 AM.

[MRRiley]

Gene,

How should that "integration clause" be worded? This is something that everyone working with models and relying on releases should consider adding to their boilerplate.

Mike

[GeneV]

Gene,

How should that "integration clause" be worded? This is something that everyone working with models and relying on releases should consider adding to their boilerplate.

Mike

Mike,

I'm a little hesitant for ethical reasons to provide something which could be deemed legal advice in another state, but the Wikipedia has a pretty comprehensive clause. Integration clause - Wikipedia, the free encyclopedia My style tends to be less legalistic and cumbersome than theirs, but that is a pretty good example.

The other thing I would look at is specifically naming some more of the uses which may be controversial. If the release specifically mentioned adult movies, etc., her case might be dead in the water. Perhaps an indemnity clause in the stock agency agreement would help too.

The practical question, though, is that if it becomes known that model releases will cover the model's face and body in a non-nude boudoir shot being used to sell pornography or prostitution, will anyone sign them?

[MRRiley]

I understand Gene... the link to the Wikipedia entry is sufficient.

Thanks!

[GeneV]

Looking around the internet at sample forms for model releases, I would have to say that we know virtually nothing about how this case should come out unless we have the release. Some model releases online (such as the one from Getty Images) specifically exclude pornography and defamation from the scope of the release. Others are so broad about modifications of the photo that the photographer might put the model's face on someone else's body from a porn shot. There are all kinds of releases in between.

IMO, this is something the industry needs to address, so that models, photographers and stock agencies have reasonable and similar expectations. if a signed release still gets you sued for something you thought was covered that is obviously not good. OTOH, If models start to believe that a "safe for TV" lingerie shot can turn them into the face of prostitution, it is not good for anyone who wants to get a release. My wife works in marketing, and I used to go with her to events for her company and shoot photos for company publications. We were required to get a release from everyone we shot before it could even go into a company newsletter, let alone other marketing material. The release came from the company's lawyers, and it was pretty general, but I can't imagine going up to one of those people and selling them on a release which I thought would let them be the face of porn.

[GeneV]

This case supposedly used the standard "Universal Adult Model Release for All Agencies," which is an incredibly general and broad one, but I think people are being thrown by the fact that it has the word "adult" in the title into thinking it implies hat it is a specific release for pornography, when it simply is named that way in order to differentiate it from the "Universal Minor Model Release for All Agencies," which has parental consent provisions baked into it. To my eyes, it looks like a classic unconscionable adhesion contract, and I have a very hard time believing it would be enforceable in its entire terms, particularly given the assurances allegedly given by the photographer and standard industry practice. Interestingly and conversely, it also specifically mentions only libel, but no other types of defamation, so I wonder if that is part of the impetus behind the false light claim (references to invasion off privacy are only general), as her lawyer may be planning to argue a very strict construction of the contract on that particular term.

Here's an example of the UAMR for anyone interested.

Actually, that really does not tell us what form was used in this case. Just about every form on the internet seems to go by that name, and they are quite different. A different form with that title that is linked here, What is a model release? – Download a Generic Model Release | Yuri Arcurs by the the same photographer as the one linked above. The one I linked from that photographer appears to be the Getty form, which specifically says the photo cannot be used for pornographic or defamatory uses. That variability in forms under essentially the same name is exactly why I think the industry needs to get its act together on this subject.

[carpents]

This lawsuit (and this conversation - sorry guys) is why I have such a low estimation of 'lawyer-speak'.

From what I'm reading, a photographer pays for a model, uploads to a stock agency, and someone - against the terms of service - obtains/uses those images. What damage, exactly, did the photographer do? Is a professional lingerie model's reputation lowered by appearing on a soft porn video in Dubai? I quite frankly don't even understand why she's upset - she's a professional lingerie model, and apparently is willing to pose for even 'alleged' photographers!

Let's also talk about the handsome old guy (you know, the one with his arms folded wearing the blue shirt) who appears in every ED advertisement out there. I would think *his* reputation is more damaged than this woman's.

Edited to add:
The photographer's main error was not having professional liability insurance. If you're selling work, you should absolutely have such coverage!

[GeneV]

So, every model in the Victoria's Secret catalogue should not mind if she is used as the face of an escort (aka prostitution) service or the face of porn? Maybe that seems OK to some people but I don't think we get to make that decision for others. My guess is that the guy in the ED ad was hired specifically for that purpose rather than for stock. He is not complaining, so who knows?

There are lots of situations where we can be held responsible for the bigger wrongs of others because we are the person who dealt directly with the person who feels she was injured. That is life and, yes, it is why we buy insurance.

[carpents]

My guess is that the guy in the ED ad was hired specifically for that purpose rather than for stock.

No, it's a stock photograph. I know because I've worked with a company who purchased it -- to advertise for ED!

As to Victoria's Secret models, I have no idea how the model feels about anything. I just know that they shouldn't be able to sue the photographers!

I say again: What damage, exactly, did the photographer do?