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Forum: Photographic Industry and Professionals
01-24-2015, 04:10 PM
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If, and this is a big if, the photographer really misrepresented the use of the photo, then his incorporation might not have helped much. He may be sued personally for a number of torts regardless of his corporation, which may be the only one liable in contract.
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Forum: Photographic Industry and Professionals
01-24-2015, 06:12 AM
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Sounds like an interesting project. Sure.
This is beyond us, but I think this case points out how different the world of stock photography has become since the internet. The rhetorical question I kept asking is whether, if a court does rule that a lingerie shoot means you can be posted as the face of prostitution, photographers will have trouble finding stock models? If it is not the photographer's responsibility, then who polices the use of downloadable photos in an international environment? Maybe some don't think being the face of prostitution or porn is a big deal for an underwear model (I disagree), but what if ISIS downloads and uses your photo, and you are now on the terrorist watch list? Will the potential for abuse in the electronic age kill stock photography of humans?
I have a substantial amount of concern for all of the parties in this dispute other than the porn and prostitution end-users.
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Forum: Photographic Industry and Professionals
01-16-2015, 05:24 PM
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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 ----------
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.
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Forum: Photographic Industry and Professionals
01-16-2015, 09:54 AM
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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.
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Forum: Photographic Industry and Professionals
01-16-2015, 09:47 AM
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If you don't understand how being portrayed as a prostitute is damaging, then there is not much common ground here.
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Forum: Photographic Industry and Professionals
01-16-2015, 09:22 AM
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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.
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Forum: Photographic Industry and Professionals
01-16-2015, 07:56 AM
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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.
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Forum: Photographic Industry and Professionals
01-16-2015, 06:43 AM
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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.
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Forum: Photographic Industry and Professionals
01-15-2015, 09:34 AM
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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?
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Forum: Photographic Industry and Professionals
01-15-2015, 08:29 AM
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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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Forum: Photographic Industry and Professionals
01-15-2015, 08:16 AM
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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?
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Forum: Photographic Industry and Professionals
01-15-2015, 06:56 AM
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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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Forum: Photographic Industry and Professionals
01-12-2015, 11:51 AM
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Photos of sexy women scantily clad are used to sell all kinds of fairly benign things now. That may have been her understanding. I remember going to a car show a while back and snapping as many photos of women in bikinis as I did of cars.
Representing or implying that she is a prostitute, a stripper or will be featured in a pornographic movie may be a little different. There is some implication that she is not just a pretty face associated with the product, but that her body is the product being sold. It is a fascinating legal question just what is understood under "stock" photography.
Note that the photographer is only one of many being sued. I would expect an indemnity claim as mentioned above by the photographer against others.
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Forum: Photographic Industry and Professionals
01-12-2015, 08:27 AM
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What did his model release say? Does it specifically mention selling adult movies? As I have understood other articles on this, the issue was that her photograph is being used to sell porn in which she does not participate. Pictures: How Nicole Forni, model unwittingly became the face of adult film sites This is a very interesting question. As a business lawyer, I have defended too many fraud suits to be comfortable with a release for use in selling something to which a model might take great exception unless it were specifically mentioned.
It seems like a bit of fraud and false advertising as well to put her on advertisements for a move, unless she is in the movie.I wonder what his deal was with the stock photo agency? Just a question for those in the photo business, under your standard model release, would including "stock photos" mean that whoever bought the photo could use it to advertise as thought the model would perform acts of bestiality? How about "sexy, but bloodthirsty, terrorists?" Where is the limit of "stock" photography?
---------- Post added 01-12-15 at 08:50 AM ----------
If I were guessing, I would say that he may not be the main target, but they include him to get his cooperation against the other parties and prevent those parties from blaming him.
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