29- Dirty Little Secret

You probably aren't going to hear this anywhere else, but…

There are folks out there in the photo business who are willing to take chances with your livelihood by whistling past the graveyard-- your graveyard-- when it comes to model releases. Because they know something that perhaps you don't:

They know that if there is a problem with the model release-- they-- the agency-- are not going to be first in line at the judge's bench-- you are. Or your client.

We have a strong feeling, based upon a lot of years in this business, that in view of the large amount of material flowing in to the royalty-free arena from relatively inexperienced photographers to relatively inexperienced photo agencies that, well, a hard rain's gonna fall.

By way of comparison, here is the way the best agencies handle the "behind the scenes" steps towards insuring solid model releases.

When a potential model comes in for an interview they are informed in lay language (not just "legalese") what they are being hired for-- the production of stock photography. The agency will have the model sign not just the legal model release, but also an acknowledgement that the form and substance of the transaction has been fully explained in easily understandable language-- that there can be no confusion.

Then the transaction is "perfected" with "valuable consideration". That means, in essence, that the model acknowledges being paid something "valuable"-- with the most indisputably "valuable" thing being, well, money.

The language of the release had been thoroughly vetted by a knowledgeable industry attorney.

The releases are then filed in a safe place in a way where they can be easily retrieved if a dispute should arise.

(Shameless self-promotion: this is the way we handle things at Comstock.)

Okay, here's how it works if the situation is handled ineptly by the agency:

A photographer comes in with some pictures. He says, yes, the photo is "released". The agency takes his word for it and marks the picture "released". Maybe, yes, a release exists. Maybe not. The agency doesn't know.

(Our favorite bonehead scenario: A photographer comes in to a company putting together a royalty-free disc. The company asks if the photo is "released". The photographer says, "Sure, that's my husband in the picture."

Now here comes the divorce.

You use the picture. The husband, who never did actually sign any kind of release, sees it. He sues your client. Who sues you. You sue the provider of the image. Who tries to sue the photographer-- who can no longer be found.

Guess who's left holding the bag? Always remember, if a model release problem arises, the person who is in the most trouble is the end user of the image: That's your client-- or you.

Does the agency really know if a good release exists? Sometimes they won't begin to find out until a subpoena lands on somebody's desk. (Probably yours).

Or maybe the agency does ask the photographer for a copy of the release. It looks sort of okay. Maybe. Could be better, but, what the heck, it's a release.

What the agency doesn't know is that the photographer essentially hoodwinked the model into signing it. He told the model, "Well, sign this form so that I can use the picture in my self-promotional portfolio-- and you can use it in yours. Don't worry, it's just a formality." (This sort of thing goes on a lot more than you might think.)

Will the release "stand up"? Maybe and maybe not. But it's going to cost you a lot of money in lawyers' fees to find out.