[GeneV]

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?

If you don't understand how being portrayed as a prostitute is damaging, then there is not much common ground here.

[carpents]

1. According to the model, there was no payment involved - this was a noncommercial portfolio swap that HE solicited and enticed her into. 2. The photographer claims he explained that he was selling it for stock, but the model claims otherwise. It's not standard practice to sell portfolio swap photos for stock, and if he never mentioned it, then he defrauded her into signing the waiver in the first place. 3. The video in quesiton is an American porn movie that supposedly features women form Dubai. The model shot was chosen because she is vaguely Arab looking. It was also used in Playboy and other less-reputable, but still high profile pornography sites. someone who knew her called it to her attention, so the fact is already established that people she know have seen her associated with porn. 4 She was advertised as a prostitute. 4. He signed a contract with Shutterstock that included the TOS and supposedly told the model that those TOS would protect her, but he did absolutely nothing to make sure those TOS were enforced, which is his duty, since even under his own story, she wouldn't have entered into the contract with him based on his assurance that the TOS would protect her. He can't simply wash his hands of it and say "Oh, that's between you and Shutterstock."

I hate to pull this card, but if your 18 year old daughter (yes, she would be an adult and would probably have to sign a similar waiver for such activities) went to some kind of "model talent search" event, and six months later you saw her face pop up when you were visiting your favorite, ahem, "adult-oriented" site, wouldn't you consider her to be wronged by the people who set up the shoot? What if you were on vacation and saw her face along side a caption saying (Our escorts know how to show you a good time?"

IMO, it looks like the photogrpaher's problem likely was much more a complete lack of professional ethics than not having insurance. Really, who sells portfolio swap pics from an unpaid shoot, let alone to an agency like Suhtterstock whose entire business model is built upon a lack of the quality control and accountability standards adhered to by more reputable agencies?

1. The photographer claims otherwise.
2. OK.
3. The video, the ad in Playboy, the porn sites - have zero to do with the photographer.
4. Not by the photographer!
5. You're on the Internet, in underwear.

You're analogy is completely different. But in my experience, I once dated a girl whose parents gave her sage advice: If you don't want a naked picture of you showing up in Playboy, don't take naked pictures and put them on the Internet.

My problem with all this is that (assuming the "he said" portion of the case) the photographer has nothing to do with what aggrieved her. That's all.

[carpents]

If you don't understand how being portrayed as a prostitute is damaging, then there is not much common ground here.

Gene, if someone comes to PentaxForums, downloads your avatar, and puts it in an ad for male prostitutes - do you sue Pentax Forums?! Edit: Or the photographer?!

That's where I'm coming from, and to me what this model is doing to the photographer.

[GeneV]

Interesting. There is supposed to be a standard Universal Adult Model Release, akin to the GPL or various Creative Commons licenses in Software and digitla media respectively. I'll have to take a look back at the link to the compliant and see if they have included the text of the form allegedly used.

That would make sense, but the one you linked and the one I linked from the same photographer are just two of the many variations I glanced through. It reminds me of how states refer to statutes as "uniform acts" when they have made all kinds of changes.

[carpents]

And that gives you the right to say I'm a prostitute?

Again, the photographer did *not* say she was, nor did he imply she was.

So that excuses the behavior of those took advantage of those pictures existence? Let's put your argument in more familiar terms: "She had it coming to her because of the way she dressed."

Not at all - she has recourse against the video, not the photographer.

[MRRiley]

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,

Why would anyone think that it implies it's for porno use? A reasonable person would assume correctly that it is used for adult human vs children.

1. According to the model, there was no payment involved - this was a noncommercial portfolio swap that HE solicited and enticed her into. 2. The photographer claims he explained that he was selling it for stock, but the model claims otherwise. It's not standard practice to sell portfolio swap photos for stock, and if he never mentioned it, then he defrauded her into signing the waiver in the first place. 3. The video in quesiton is an American porn movie that supposedly features women form Dubai. The model shot was chosen because she is vaguely Arab looking. It was also used in Playboy and other less-reputable, but still high profile pornography sites. someone who knew her called it to her attention, so the fact is already established that people she know have seen her associated with porn. 4 She was advertised as a prostitute. 4. He signed a contract with Shutterstock that included the TOS and supposedly told the model that those TOS would protect her, but he did absolutely nothing to make sure those TOS were enforced, which is his duty, since even under his own story, she wouldn't have entered into the contract with him based on his assurance that the TOS would protect her. He can't simply wash his hands of it and say "Oh, that's between you and Shutterstock."

I hate to pull this card, but if your 18 year old daughter (yes, she would be an adult and would probably have to sign a similar waiver for such activities) went to some kind of "model talent search" event, and six months later you saw her face pop up when you were visiting your favorite, ahem, "adult-oriented" site, wouldn't you consider her to be wronged by the people who set up the shoot? What if you were on vacation and saw her face along side a caption saying (Our escorts know how to show you a good time?"

IMO, it looks like the photogrpaher's problem likely was much more a complete lack of professional ethics than not having insurance. Really, who sells portfolio swap pics from an unpaid shoot, let alone to an agency like Suhtterstock whose entire business model is built upon a lack of the quality control and accountability standards adhered to by more reputable agencies?

I hate to pull this card but you seem to be taking every claim the model makes at face value and refuse to accept anything the photographer says, even when he has (or claims to have I'll admit) supporting evidence (paypal receipts and a signed model release)? WHY? And how can you conclude and claim that he is unethical with just the unsubstantiated claims made in this lawsuit?

I'm actually attempted to post a disclaimer that PF, as a business entity, does not support or endorse your statements regarding this photographer.

[Docrwm]

Seems to me here, having read each post and links, that some here are assuming that one or the other party told the truth. If not completely at least heavily siding with one side. My experience in such disputes has taught me that its VERY unlikely either side is telling the whole and unvarished truth. Still, mostly an interesting discussion IMHO.

[MRRiley]

He assured her they wouldn't be used that way, so part of the contract is that he has to make sure that it's not used that way.

She says!

Absolutely by the photographer. If I gave you my Rolex watch to wear under your assurances that you would take care of it, then you leave it at a pawn shop, it's absolutely your fault if it gets sold in 2 months, even if their TOS state that they won't sell anything until it's been there for 3 months. This is because Pawnshops are known to play fast and loose with theeir TOS, JUST LIKE Shutterstock.

I would have no right to pawn it since I am not the owner so yes, I would be responsible but so would the pawn shop. You could sue me, but I could sue the pawnshop for violating their policy.

And that gives you the right to say I'm a prostitute?

The photographer did not call her a prostitute, the people who purchased or stole the images did, by implication anyway. That is not the photographer's fault.

So that excuses the behavior of those took advantage of those pictures existence? Let's put your argument in more familiar terms: "She had it coming to her because of the way she dressed."

Not in the least, but it does point you to the people who misused the images... the end-users... NOT the photographer.

Even assuming everything he alleges is true, he lied to her when he got her to sign the contract by saying that they wouldn't be used in the ways they were, and that TOS would protect her. That's fraudulent inducement.

Again you assume she is telling the truth and that he lied to her, which is a logical impossibility under your statement "assuming everything he alleges is true."

[MRRiley]

Seems to me here, having read each post and links, that some here are assuming that one or the other party told the truth. If not completely at least heavily siding with one side. My experience in such disputes has taught me that its VERY unlikely either side is telling the whole and unvarished truth. Still, mostly an interesting discussion IMHO.

When one side says they can back their claims up with evidence and the other side only has "I said, he said" then it's pretty easy to pick a side.

[MRRiley]

Funny, that's what most of the people defending the photographer are doing. People don't realize that unless you have an integrated contract, the terms of the contract can include everything pretty much agreed upon in the negotiation. You can't simply rely on teh words on the paper, since the contract is conceived of as existing apart form the document. If you look at the various stories written on this, many commenters on the various sites (not just here) are saying it says "adult" and "any use," so of course she should know it allows its use for porn.

I'd like to see citations and links to those comments. I've not seen that and I find it hard to believe that many photographers, especially those who deal with models on even an occasional basis can manage to misunderstand or so strangely interpret a common term of "adult" to authorize use in "adult" material

I freely admit that I'm more sympathetic to the model's claims at this point, but the vast majority of the commenters on photo sites are doing the exact same thing for this guy, merely due to the fact that he is a photographer. Lets face it, there are plenty of sleazy people in the photogrpahy business, and it's pretty silly to think that it's outside of the realm of possibility that this guy isn't telling the whole truth. That's exactly why there should be a trial in this case. But most photographers I've seen so far are letting the perceived possibility that this could happen to them too keep them form even entertaining the possibility that this suit might be deserved. Call it the "thin blue line" of the photographic world.

I'm not supporting him just because he is a photographer, I am supporting him because he says he can provide EVIDENCE. He may be lying, but making the claim lends a certain amount of credibility to his story. The model admits she cannot provide any evidence corroborating her claims about what they negotiated or what the photographer said. She just say "take my word for it. I can't prove anything but seeeeee, I have a pretty face!" There are as many sleazy models out there as there are sleazy photographers and this is why I always have my wife or another witness present when I shoot any model.

Both sides can put their claims out in a court. the main sticking point for me is that the guy commercialized photos taken during a portfolio trade shoot. Whether he told her he was doing it or not, if true, that's a major departure from ethical photographic industry practice and pretty sleazy to boot. Basically what he's doing is telling that the model's time and talents aren't worth any more than the privilege of being photographed. For a member of a profession that is continuously trying to make the case that its work deserves to be protected by copyright and paid a fair wage for, this does not make the guy look good at all.

You are right that this is the real sticking point... he says it was a paid shoot and claims to have evidence to back that up. She claims it was a trade shoot. It would be interesting to see if her or her agent's bank statement reflects a payment from him to her account. I hope the photographer's attorney has checked into this.

Another point you are not considering is that trade shoots, while commonly limited to portfolio use are not legally required to be. The model is essentially being paid to model with copies of the photographs. This is, in the terms commonly used in releases, a "valuable consideration" in that to get the same photos when the photographer wasn't interested in using them himself, SHE would have to pay him for them. The TFP contract I use with my models states that the shoot is being conducted as a trade... her modeling services for my photography services. I am essentially paying her by giving her photos rather than cash. She compensates me by providing a release that allows me to use the images as I desire from portfolio use up to commercial sales. The contract also states that I, and only I, the right to sell the images to anyone. She can use them in whatever form she desires to promote herself, web sites, lobby cards, business cards, etc but any sales or third party commercial uses have to go through me. And even though I am not required to, since she/he has already been paid for their services (photos) the contract also states that they will get a cut (up to a certain amount) of any commercial sales.

p.s. My contract also states that I will not use or market the images as or in a "pornography" situation (paraphrasing here since I do not have a copy of the contract in front of me) or to discredit or defame the model... however I am not responsible for unauthorized uses by other parties.

[GeneV]

Seems to me here, having read each post and links, that some here are assuming that one or the other party told the truth. If not completely at least heavily siding with one side. My experience in such disputes has taught me that its VERY unlikely either side is telling the whole and unvarished truth. Still, mostly an interesting discussion IMHO.

Exactly. That is my experience after a few thousand lawsuits. It is seldom that someone gets it exactly right. I don't know who is telling the truth, and I take claims that one side has written evidence (oral testimony is also evidence) of something with a big grain of salt.

---------- Post added 01-16-15 at 05:37 PM ----------

I'm not supporting him just because he is a photographer, I am supporting him because he says he can provide EVIDENCE. He may be lying, but making the claim lends a certain amount of credibility to his story. The model admits she cannot provide any evidence corroborating her claims about what they negotiated or what the photographer said. She just say "take my word for it. I can't prove anything but seeeeee, I have a pretty face!" There are as many sleazy models out there as there are sleazy photographers and this is why I always have my wife or another witness present when I shoot any model.

p.s. My contract also states that I will not use or market the images as or in a "pornography" situation (paraphrasing here since I do not have a copy of the contract in front of me) or to discredit or defame the model... however I am not responsible for unauthorized uses by other parties.

Oral testimony is evidence, and it will not likely be her pretty face which determines credibility. In my experience, a pretty face is not helpful with a jury unless you get only men. What will decide the case is whom the judge and jury believe is telling a more reasonable story and what a reasonable person would believe the scope of the release to be. I don't know who is right or who is wrong, but there are big issues in my mind about both of them.

And yes, if you sell a photo to someone who uses it contrary to the scope of your release, you may be responsible. Your remedy is to sue the party who misused it. Again, I think the industry needs to get some forms and, perhaps, some laws together so that everyone in this transaction, from the model to the end user knows exactly what they sign up for.

[Docrwm]

Due to this case, I've been actually toying with the idea of trying to draft a new standardized (and modular) model release form with plain language explanatory text that would help alleviate situations like this. Would you be interested in supplying your input to this project (pro bono, of course)?

That would be a very nice service to this community.

[carpents]

That would be a very nice service to this community.

Agreed.

[MRRiley]

Oral testimony is evidence....

Sorry Gene... You are of course correct. Testimony IS evidence, but with out corroborating evidence it may not carry much weight...

For instance.

I say I saw you run into my car with your car. That is evidence, but if I have no independent witnesses or physical evidence to support my statement it's weight is likely to be taken less seriously than if 5 other people saw you hit my car and there was a traffic camera present that captured the collision.

It can be even less weighty if I don't have any witnesses or video showing the accident but you produce a traffic camera image of you and your car 20 miles away at the exact time of the accident that damaged my car.

Yes, my statement is "evidence" but might also be considered "hearsay" without support. But then, that's the whole purpose of the "trial by jury" system...

At this point, the claims by all parties in this model/photographer lawsuit are "he said, she said." The truth will out once they get into court.

[normhead]

Sorry Gene... You are of course correct. Testimony IS evidence, but with out corroborating evidence it may not carry much weight...

For instance.

I say I saw you run into my car with your car. That is evidence, but if I have no independent witnesses or physical evidence to support my statement it's weight is likely to be taken less seriously than if 5 other people saw you hit my car and there was a traffic camera present that captured the collision.

It can be even less weighty if I don't have any witnesses or video showing the accident but you produce a traffic camera image of you and your car 20 miles away at the exact time of the accident that damaged my car.

Yes, my statement is "evidence" but might also be considered "hearsay" without support. But then, that's the whole purpose of the "trial by jury" system...

At this point, the claims by all parties in this model/photographer lawsuit are "he said, she said." The truth will out once they get into court.

Or some version of the truth......