MicrostockGroup
Microstock Photography Forum - General => General Stock Discussion => Topic started by: bpepz on September 24, 2013, 16:45
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--------UPDATE-------
Hey everyone, I actually did end up getting sued by the model and it has developed into an extremely scary scenario, to the people who already went through this thread I am making a new one to address what is currently going on. I will not really be able to answer many questions, but I made a pretty detailed statement on what has gone down so far for everyone to read.
Please visit my new thread so I can update everyone on what is happening.
"http://www.microstockgroup.com/general-stock-discussion/being-sued-by-model-for-half-a-million-dollars-in-federal-court-please-read!/"
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She signed a model release. What does the model release say?
I dont think she can sue. Well, she can, but not sure if she would win the case.
I always wonder when someone does glamour shots, what they think the images are going to be used for? Selling apples?
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She signed a model release. What does the model release say?
I dont think she can sue. Well, she can, but not sure if she would win the case.
I always wonder when someone does glamour shots, what they think the images are going to be used for? Selling apples?
I hope your right. I used yuri's model release template. She says she got signed on to a big cosmetics company and these images could destroy her career, she also cited that the contract she has with the cosmetics company forbids her from doing any work the would end up in an escort ad, problem is she modeled for me and signed my release long before she became part of that cosmetics company. Also I don't see how its my fault other people other misused the images or stole them.
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1. Which Model release did she sign? There are releases which prohibit "defamatory" use and those which don`t mention anything.
2. If she signed a release which does not exclude that she has IMHO no legal power of the situation. She abandoned the right over the image.
3. Another question is even if she signed a release which excludes defamatory use, the agency might do so as well.
If the image got downloaded from a Agency which prohibits such usage the client which used the image for the escort site is breaking the Agencies TOS and the agency has to take care about that. Same goes for the piracy sites. The Agency has to assure their content is used in a legal way and take care about it if THEIR terms got violated.
4. If the MR prohibits such usage, but the agency does not you have a very difficult situation since a) you are not in control about the clients and the usage (the agency is), but b) you have to make sure the MR conditions do not get violated.
IMHO except of 4. you are out of the responsibility.
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She signed a model release. What does the model release say?
I dont think she can sue. Well, she can, but not sure if she would win the case.
I always wonder when someone does glamour shots, what they think the images are going to be used for? Selling apples?
I hope your right. I used yuri's model release template. She says she got signed on to a big cosmetics company and these images could destroy her career, she also cited that the contract she has with the cosmetics company forbids her from doing any work the would end up in an escort ad, problem is she modeled for me and signed my release long before she became part of that cosmetics company. Also I don't see how its my fault other people other misused the images or stole them.
But you did tell her that images can be stolen from sites which legitimately purchased them and be abused then.
But also, Ron's right - what did she think those images could be used for?
If the images are only on SS, you could see if they will help you with the abuses, whether directly purchased from them (in which case, they should help you, unless you allowed 'sensitive use') or stolen from another site (don't know what their policy might be).
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A model release is a form of contract, your contract with her supersedes any future contract. As long as your contract does not limit where and how the photos can be used she does not have any case against you. This is just basic contract law, any first year law student would be aware of this.
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So she signed a contract (got paid?) and now she wants out because of greener pastures? Typical. She sounds gullible, also because she thinks she can sue her way out of her own mess.
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She signed a model release. What does the model release say?
I dont think she can sue. Well, she can, but not sure if she would win the case.
I always wonder when someone does glamour shots, what they think the images are going to be used for? Selling apples?
I hope your right. I used yuri's model release template. She says she got signed on to a big cosmetics company and these images could destroy her career, she also cited that the contract she has with the cosmetics company forbids her from doing any work the would end up in an escort ad, problem is she modeled for me and signed my release long before she became part of that cosmetics company. Also I don't see how its my fault other people other misused the images or stole them.
But you did tell her that images can be stolen from sites which legitimately purchased them and be abused then.
But also, Ron's right - what did she think those images could be used for?
If the images are only on SS, you could see if they will help you with the abuses, whether directly purchased from them (in which case, they should help you, unless you allowed 'sensitive use') or stolen from another site (don't know what their policy might be).
I did allow sensitive use, but the sensitive use, but the sensitive use still does not allow it to be used for something like a an escort ad or strip club. As far as the wording of the MR, it does not say anything about defamatory use either way, it just says it can be used for anything. I did submit the images to a few other sites besides shutterstock, but it was istock, fotolia, 123rf, and dreamstime. I am pretty sure they also do not allow images to be used for an escort ad.
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A model release is a form of contract, your contract with her supersedes any future contract. As long as your contract does not limit where and how the photos can be used she does not have any case against you. This is just basic contract law, any first year law student would be aware of this.
Yes. The problem now is that I just checked Yuris release and it excludes, like the Getty one, "defamatory" use. The model may have a case if a escort site is considered "Defamatory" (i would). Nevertheless the client has to accept the TOS of the site where he bought the image. He did not get it from the photog himself. So the Agency has to make sure their TOS are not violated. The case is not against the Photographer since he uploaded clearly to a site who prohibits such usage to its custumors. So he did nothing wrong (if SS prohibits this - I have not read the TOS regarding this yet).
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Hmmm, you might find it very difficult to find out where the sites got the images. Even if they bought them, where did they get them from to know which agency might help you. If they stole them, it's going to be difficult to establish that - they're hardly going to get back to you to admit it.
Depends on your country. A contract doesn't always protect you from legal proceedings, just as a disclaimer doesn't. There's also 'fully informed consent', in my country at least. But how you could establish that you did tell the model that you have no ultimate control how a file may be abused (assuming you did), I'm not sure.
Good luck.
Think carefully before doing this sort of shoot in future. How would you like it if it was your sister in this position?
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A model release is a form of contract, your contract with her supersedes any future contract. As long as your contract does not limit where and how the photos can be used she does not have any case against you. This is just basic contract law, any first year law student would be aware of this.
Yes. The problem now is that I just checked Yuris release and it excludes, like the Getty one, "defamatory" use. The model may have a case if a escort site is considered "Defamatory" (i would). Nevertheless the client has to accept the TOS of the site where he bought the image. He did not get it from the photog himself. So the Agency has to make sure their TOS are not violated. The case is not against the Photographer since he uploaded clearly to a site who prohibits such usage to its custumors. So he did nothing wrong (if SS prohibits this - I have not read the TOS regarding this yet).
I used yuri's old release, I can paste the text in here so you can be the judge on this
In consideration of my engagement as a model, upon the terms herewith stated, I hereby give to ____________, his/her heirs, legal representatives and assigns, those for whom ______________ is acting, and those acting with his/her authority and permission:
a) the unrestricted right and permission to copyright and use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included intact or in part, composite or distorted in character or form, without restriction as to changes or transformations in conjunction with my own or a fictitious name, or reproduction hereof in color or otherwise, made through any and all media now or hereafter known for illustration, art, promotion, advertising, trade, or any other purpose whatsoever.
b) I also permit the use of any printed material in connection therewith.
c) I hereby relinquish any right that I may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied.
d) I hereby release, discharge and agree to save harmless [photographer], his/her heirs, legal representatives or assigns, and all persons functioning under his/her permission or authority, or those for whom he/she is functioning, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of said picture or in any subsequent processing thereof, as well as any publication thereof, including without limitation any claims for libel or invasion of privacy.
e) I hereby affirm that I am over the age of majority and have the right to contract in my own name. I have read the above authorization, release and agreement, prior to its execution; I fully understand the contents thereof. This agreement shall be binding upon me and my heirs, legal representatives and assigns.
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Hmmm, you might find it very difficult to find out where the sites got the images. Even if they bought them, where did they get them from to know which agency might help you. If they stole them, it's going to be difficult to establish that - they're hardly going to get back to you to admit it.
Depends on your country. A contract doesn't always protect you from legal proceedings, just as a disclaimer doesn't. There's also 'fully informed consent', in my country at least. But how you could establish that you did tell the model that you have no ultimate control how a file may be abused (assuming you did), I'm not sure.
Good luck.
Think carefully before doing this sort of shoot in future. How would you like it if it was your sister in this position?
I am in the US. Glamour modeling was what she did for a living, its just recently she "made it big" supposedly with a local cosmetics company doing promotion. She has no problem with the images themselves, she even got the contract with her new company because they saw my images and wanted to know who the model was. I told her I would have no problem taking the images down in exchange for a compensation shoot with something less likely to be abused, like some sort of lifestyle type shots. She refused, said she "does not do TFP anymore" and is "making big money" promoting that cosmetics company.
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I would delete the photos. Forget the legal aspect, avoid possible trouble and let her have her career.
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I would delete the photos. Forget the legal aspect, avoid possible trouble and let her have her career.
This. For peace of mind.
She's still deluded, mind.
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I think from a legal POV you should be fine, but nevertheless I would delete the Shots.
No one is really safe from stuff like this, but I never ever shoot with people who are not 100% sure what they are doing. I always explain the concept of stock before and make clear that I have no control over the pictures once they are purchased.
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I think from a legal POV you should be fine, but nevertheless I would delete the Shots.
No one is really safe from stuff like this, but I never ever shoot with people who are not 100% sure what they are doing. I always explain the concept of stock before and make clear that I have no control over the pictures once they are purchased.
I am hoping deleting the images would even be enough. They are apparently very popular with pirates, she is going to keep seeing the images misused whether I take them down or not, I am worried she will somehow try to sue me for that too.
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I think from a legal POV you should be fine, but nevertheless I would delete the Shots.
No one is really safe from stuff like this, but I never ever shoot with people who are not 100% sure what they are doing. I always explain the concept of stock before and make clear that I have no control over the pictures once they are purchased.
I am hoping deleting the images would even be enough. They are apparently very popular with pirates, she is going to keep seeing the images misused whether I take them down or not, I am worried she will somehow try to sue me for that too.
She can try, doesn't mean she will succeed.
Anyway, from what I have read on here over the years, contracts seem to have more legal binding in the US, so you should be OK.
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I think from a legal POV you should be fine, but nevertheless I would delete the Shots.
No one is really safe from stuff like this, but I never ever shoot with people who are not 100% sure what they are doing. I always explain the concept of stock before and make clear that I have no control over the pictures once they are purchased.
I am hoping deleting the images would even be enough. They are apparently very popular with pirates, she is going to keep seeing the images misused whether I take them down or not, I am worried she will somehow try to sue me for that too.
Are you sure the image got bought from Shutterstock? If you know that for sure then they are violating the SS terms - I just re-read them. They exclude defamatory use. I think most Agencies prohibit such usage.
What pirates do is out of your control. You can try: ask the site directly where they got the image from and if they legally purchase the image. Then they would have three options: a) They do not respond > Send them a DMCA! b) They admit they stole it and take it down > perfect! c) They purchased it from Agency XYZ > contact the agency about the misuse and you are out of responsibility too. In each of the named three cases you can show to the Model as well as in a possible legal process that you did all you could do.
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Isn't this an agency issue more than anything else? That's the whole point of what these companies do, they act as our agent to distribute images, handle the sales, define licensing, and address misuse when it happens. Shutterstock (or whichever company) issued the license, which includes the prohibition of use in porn and escort ads. The photographer isn't at fault here. Shouldn't the model be going after the stock agency instead?
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Isn't this an agency issue more than anything else? That's the whole point of what these companies do, they act as our agent to distribute images, handle the sales, define licensing, and address misuse when it happens. Shutterstock (or whichever company) issued the license, which includes the prohibition of use in porn and escort ads. The photographer isn't at fault here. Shouldn't the model be going after the stock agency instead?
Firstly, you'd need to know which of several agencies the image was bought from.
Then you'd need to know the terms of the relevant agency, if it was bought from an agency.
If it was stolen, that's different again.
If the image was bought from a stock agency, and that agency forbids that sort of use in their t&c, the end user is the one who should be sued. And if they stole it, clearly it's they who are at fault.
So shouldn't the model (and photographer) be going after the abuser, provided that each of the agencies, and distributors of that agency, disallow the use.
If the abusers are also in the US, the DCMA route may be best, but check that they couldn't possibly have bought and used it legitimately - some distributors or partners have different t&c to those of the parent company.
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Hmmm, you might find it very difficult to find out where the sites got the images. Even if they bought them, where did they get them from to know which agency might help you. If they stole them, it's going to be difficult to establish that - they're hardly going to get back to you to admit it.
Depends on your country. A contract doesn't always protect you from legal proceedings, just as a disclaimer doesn't. There's also 'fully informed consent', in my country at least. But how you could establish that you did tell the model that you have no ultimate control how a file may be abused (assuming you did), I'm not sure.
Good luck.
Think carefully before doing this sort of shoot in future. How would you like it if it was your sister in this position?
I am in the US. Glamour modeling was what she did for a living, its just recently she "made it big" supposedly with a local cosmetics company doing promotion. She has no problem with the images themselves, she even got the contract with her new company because they saw my images and wanted to know who the model was. I told her I would have no problem taking the images down in exchange for a compensation shoot with something less likely to be abused, like some sort of lifestyle type shots. She refused, said she "does not do TFP anymore" and is "making big money" promoting that cosmetics company.
Does "Glamour modeling" mean nekkid pictures or lingerie? If so, there should be no surprise they ended up on an escort site.
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Hmmm, you might find it very difficult to find out where the sites got the images. Even if they bought them, where did they get them from to know which agency might help you. If they stole them, it's going to be difficult to establish that - they're hardly going to get back to you to admit it.
Depends on your country. A contract doesn't always protect you from legal proceedings, just as a disclaimer doesn't. There's also 'fully informed consent', in my country at least. But how you could establish that you did tell the model that you have no ultimate control how a file may be abused (assuming you did), I'm not sure.
Good luck.
Think carefully before doing this sort of shoot in future. How would you like it if it was your sister in this position?
I am in the US. Glamour modeling was what she did for a living, its just recently she "made it big" supposedly with a local cosmetics company doing promotion. She has no problem with the images themselves, she even got the contract with her new company because they saw my images and wanted to know who the model was. I told her I would have no problem taking the images down in exchange for a compensation shoot with something less likely to be abused, like some sort of lifestyle type shots. She refused, said she "does not do TFP anymore" and is "making big money" promoting that cosmetics company.
Does "Glamour modeling" mean nekkid pictures or lingerie? If so, there should be no surprise they ended up on an escort site.
http://www.shutterstock.com/pic.mhtml?id=130911773&src=id (http://www.shutterstock.com/pic.mhtml?id=130911773&src=id)
the image in question
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I'm not sure in how many other ways that sort of image could be used.
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
Hey, but your food shots are great!
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
Hey, but your food shots are great!
I don't know if this makes much of a difference, but she also used the images on her facebook and got like 2k likes on it, the picture got alot of attention so it can't just be from shutterstock that all these improper uses came about.
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
I don't even understand how that image could be used 'improperly'. If I wanted to create an image of someone providing 'escort services' then I'd think I'd have absolutely nailed it with that one! Outstanding work if that was your intention.
She's overly made-up, pouting into the camera with her butt raised whilst wearing see-through undies, What is she supposed to be selling? Toffee-apples?
"No further questions m'lud"
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Great portfolio! I have no legal advice...
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
Hey, but your food shots are great!
I don't know if this makes much of a difference, but she also used the images on her facebook and got like 2k likes on it, the picture got alot of attention so it can't just be from shutterstock that all these improper uses came about.
Oh, for goodness' sake. She uses these photos openly on Facebook and isn't surprised that they get lifted and abused?
Game, set and match.
She hasn't got the sense she was born with.
(Tickstock is right. Get a screenshot. That could be a great defence if she ever tries to pin anything on you.)
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
I don't even understand how that image could be used 'improperly'. If I wanted to create an image of someone providing 'escort services' then I'd think I'd have absolutely nailed it with that one! Outstanding work if that was your intention.
She's overly made-up, pouting into the camera with her butt raised whilst wearing see-through undies, What is she supposed to be selling? Toffee-apples?
"No further questions m'lud"
LOL, I know what you mean, believe it or not I thought it would never sell precisely because there is not much use for it. I believed it would go unsold but rack up tons of traffic for my port. I based this off of a similar shoot I had done before, it got zero sales, but I got a huge number of port views and indirect increase in food image sales, so I thought the same might apply here. For the record though, her images really did not sell that good, a few sales here and there, but nothing to special, my traffic did increase significantly though.
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Remind me to stick with shooting nature (the non-human kind that is....).
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
Hey, but your food shots are great!
I don't know if this makes much of a difference, but she also used the images on her facebook and got like 2k likes on it, the picture got alot of attention so it can't just be from shutterstock that all these improper uses came about.
Get a screen shot of that if you can.
done
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
I don't even understand how that image could be used 'improperly'. If I wanted to create an image of someone providing 'escort services' then I'd think I'd have absolutely nailed it with that one! Outstanding work if that was your intention.
She's overly made-up, pouting into the camera with her butt raised whilst wearing see-through undies, What is she supposed to be selling? Toffee-apples?
"No further questions m'lud"
LOL, I know what you mean, believe it or not I thought it would never sell precisely because there is not much use for it. I believed it would go unsold but rack up tons of traffic for my port. I based this off of a similar shoot I had done before, it got zero sales, but I got a huge number of port views and indirect increase in food image sales, so I thought the same might apply here. For the record though, her images really did not sell that good, a few sales here and there, but nothing to special, my traffic did increase significantly though.
Can you really make a definite link that people came to your site to see a soft-porn photo then decided to buy a food image instead?
Are you sure the food images didn't sell on their own merit, while a lot of adolescent boys gawped at the burd?
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I'm not sure in how many other ways that sort of image could be used.
Yeah, sorry. You're just asking for it to be used improperly. And she wasn't very smart to sign.
I don't even understand how that image could be used 'improperly'. If I wanted to create an image of someone providing 'escort services' then I'd think I'd have absolutely nailed it with that one! Outstanding work if that was your intention.
She's overly made-up, pouting into the camera with her butt raised whilst wearing see-through undies, What is she supposed to be selling? Toffee-apples?
"No further questions m'lud"
LOL, I know what you mean, believe it or not I thought it would never sell precisely because there is not much use for it. I believed it would go unsold but rack up tons of traffic for my port. I based this off of a similar shoot I had done before, it got zero sales, but I got a huge number of port views and indirect increase in food image sales, so I thought the same might apply here. For the record though, her images really did not sell that good, a few sales here and there, but nothing to special, my traffic did increase significantly though.
Can you really make a definite link that people came to your site to see a soft-porn photo then decided to buy a food image instead?
Are you sure the food images didn't sell on their own merit, while a lot of adolescent boys gawped at the burd?
Well, she complained before one of her shots ended up on playboy soemhow, and I took all the images down as soon as she asked. my gallery views and sales plummeted. she called me a few days later and said she over reacted, and to go ahead and put the images back up. as soon as I resubmitted the images, gallery views saw a huge spike, sales went back up.
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From Facebook's TOS:
• For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
• When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
So basically it could very well be her own fault. She can sue, but I doubt she has much of a case if she's been spreading them all around the internet willy-nilly.
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Well, she complained before one of her shots ended up on playboy soemhow, and I took all the images down as soon as she asked. my gallery views and sales plummeted. she called me a few days later and said she over reacted, and to go ahead and put the images back up. as soon as I resubmitted the images, gallery views saw a huge spike, sales went back up.
Dude, you should select your models more carefully. This girl seems to be really, ehhh, volatile.
I know some girls who would kill for being in the Playboy BTW.
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Dude, you should select your models more carefully. This girl seems to be really, ehhh, volatile.
I know some girls who would kill for being in the Playboy BTW.
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From now on I will only shoot actual porn stars. Not much chance of them getting upset about anything. Also, they are actually dramatically cheaper then "normal" models and are way more professional.
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Dude, you should select your models more carefully. This girl seems to be really, ehhh, volatile.
I know some girls who would kill for being in the Playboy BTW.
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From now on I will only shoot actual porn stars. Not much chance of them getting upset about anything. Also, they are actually dramatically cheaper then "normal" models and are way more professional.
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I like the idea with the porn stars. But I was referring more to the YesNoYesNoYesNo type of mentality this girl has.
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
No, the only use of this particular shot, sold as stock, is going to be a business that takes advantage of what is shown in the image.
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
lol, another hornymale photographer shooting soft porn glamour and calling it "art". Yep, and you only read the articles in Playboy too. ::)
FWIW those pics are stunning, in both an artistic and porny way. she's like selena gomez meets kardashian. I can see why you don't want to take them down.
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
lol, another hornymale photographer shooting soft porn glamour and calling it "art". Yep, and you only read the articles in Playboy too. ::)
So many people seem to be able to judge lately. Yes, in fact I do think it is a great shot. Beyond the subject which is a matter of taste - like always in art - I think it has the right to be called art and the photo is of outstanding quality - no matter if it is glamour or not. (And no, glamour is not a synonymous of soft porn)
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
No, the only use of this particular shot, sold as stock, is going to be a business that takes advantage of what is shown in the image.
I know what you mean. But this does not justify that the client who bought the image is breaking the legal agreement of the Agency who sold it. Misuse is misuse - even if the usage fits the matter very well.
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
No, the only use of this particular shot, sold as stock, is going to be a business that takes advantage of what is shown in the image.
I know what you mean. But this does not justify that the client who bought the image is breaking the legal agreement of the Agency who sold it. Misuse is misuse - even if the usage fits the matter very well.
It doesn't, but creating content that invites misuse isn't very good business either.
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
No, the only use of this particular shot, sold as stock, is going to be a business that takes advantage of what is shown in the image.
I know what you mean. But this does not justify that the client who bought the image is breaking the legal agreement of the Agency who sold it. Misuse is misuse - even if the usage fits the matter very well.
Have we even established that:
1. The disallowed uses were bought from an agency?
b. If so, which one?
c. That the T&C of that agency or distributor disallows this?
2. Or it was stolen from the site of a legitimate buyer?
3. Or it was lifted from the model's facebook (etc)?
b did she protect it in any way, e.g. watermark?
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Wow. Some people here really seem to think the only thinkable usage of a glamour shot is promoting prostitution. Not much artistic freedom left in a microstock fried market I guess.
No, the only use of this particular shot, sold as stock, is going to be a business that takes advantage of what is shown in the image.
I know what you mean. But this does not justify that the client who bought the image is breaking the legal agreement of the Agency who sold it. Misuse is misuse - even if the usage fits the matter very well.
Have we even established that:
1. The disallowed uses were bought from an agency?
b. If so, which one?
c. That the T&C of that agency or distributor disallows this?
2. Or it was stolen from the site of a legitimate buyer?
3. Or it was lifted from the model's facebook (etc)?
b did she protect it in any way, e.g. watermark?
Finally a constructive post again. Especially point 3 is an interesting Aspect.
Yesterday I checked the TOS of about 12 Agencies and all of them are disapproving defamatory use. We cannot know if the image was stolen or from which site it was bought from, but I think unless the image was purchased under the SS sensitive usage license (if this would allow such use?) it is almost safe to say that whoever bought or uses the image does so in a unlawful manner. This would mean the photographer cannot held responsible for the misuse IMHO. (It would be easy for the OP to check the Terms of all the sites he contributes to within 15 min.)
Is anybody aware of any Site which allow such use in their Terms? I would not contribute one shot more to such a site and I even don`t do Glamour or nudes.
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My point, as it has been throughout this thread, is that we do not know whether the end-user bought the file directly or loaded it up.
Until we know that, any discussion of whether they abused the T&C is irrelevant.
In the OP, only SS was mentioned; later we were told that the image is also on istock, fotolia, 123rf, and dreamstime; later still we got the info that the model has the photo on her Fb.
So there are already a lot of places (i.e. the sites of buyers, and Fb) from where someone could illegally 'lift' an image, so it becomes an issue of image theft, not abuse of T&C.
Good luck with getting information from the abusers about where they sourced the image. @OP Take screenshots of the use of the images there too.
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My point, as it has been throughout this thread, is that we do not know whether the end-user bought the file directly or loaded it up.
Until we know that, any discussion of whether they abused the T&C is irrelevant.
In the OP, only SS was mentioned; later we were told that the image is also on istock, fotolia, 123rf, and dreamstime; later still we got the info that the model has the photo on her Fb.
So there are already a lot of places (i.e. the sites of buyers, and Fb) from where someone could illegally 'lift' an image, so it becomes an issue of image theft, not abuse of T&C.
Good luck with getting information from the abusers about where they sourced the image. @OP Take screenshots of the use of the images there too.
I understood and understand your point Sue and off course you are right. I was more looking to try to find out wether the photographer is to be held responsible or not. And in both cases - if it was purchased or stolen - it is not the fault of the OP.
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I have no advice for bpepz.
I have some for the model
1) don't sue nobody, you will only loose time and money…
2) I am not sure that you will be a good model for cosmetics…
3) I am sure that you could have more success as escort!
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As someone who has been in a similar situation, I would like to express my support and full understanding of your concerns. It is not fun at all. I've had a situation with a model who's been giving me kisses before and after shoots for years, until I very suddenly received a letter from her lawyer with an amount request you'd laugh at (think like a million euros, just less). It gave me a heart condition and a huge disappointment in what I do and in people I work with.
What I can say we've learnt from contacting various law firms (Europe, so please note it's not a final word of law for you at all):
1. The one at fault is a publisher, not a photographer, and not an agency. A publisher should have verified what use is allowed and what use is prohibited.
2. A Model Release covers you pretty well.
3. Fact that the image is for free on the internet (like FB or piracy sites) covers you well.
On a question of "delete or not delete photos", I'd say it depends. If the images make your livelihood and you don't want a line of other models demanding the same joke from you after this lady succeeded, I'd advise you not to delete anything until you hear it from a judge.
I consider the discussion on glamour photography safety pretty laughable. Adult model doing things at her will (i.e. going as far as she wants for professional free images) is not your problem at all, unless you had a gun to her head. You said yourself she got her gig thanks to your pictures. Don't be shy, ask for a share!
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You said yourself she got her gig thanks to your pictures. Don't be shy, ask for a share!
8) 8) 8)
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So she signed a contract (got paid?) and now she wants out because of greener pastures? Typical. She sounds gullible, also because she thinks she can sue her way out of her own mess.
I am not a lawyer but my ( limited) understanding of Canadian contract law ( don't know about other countries) the important thing is the being paid part of this sentence. For the contract to be valid she has to have received something of value in exchange for the images....Is TFP equal value for a glamour shoot?
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So she signed a contract (got paid?) and now she wants out because of greener pastures? Typical. She sounds gullible, also because she thinks she can sue her way out of her own mess.
I am not a lawyer but my ( limited) understanding of Canadian contract law ( don't know about other countries) the important thing is the being paid part of this sentence. For the contract to be valid she has to have received something of value in exchange for the images....Is TFP equal value for a glamour shoot?
Not in the US, if compensation is not mentioned in the contract, none has to be paid. But I doubt any model would work all day without some from of payout. So prints or access to the JPEGs could be considered something of value. A model release is a form of contract too, it is also a release of your rights to allow the photographer or who ever is commissioning the photographic session to use the photographs in a commercial or editorial use.
When I used to shoot weddings, my contract stated that had the right to use their likeness in my portfolio or in advertising my services. It did state that no third party could use the photographs. The contract also stated that they did not have any photo rights or ownership of the images.
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To me looks like the main reason that she wants her image remove, is her new contract with the model agencie, and the devaluation of her image.
If she have her image at her FB you can process her for distributing your image without your consent :D
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So she signed a contract (got paid?) and now she wants out because of greener pastures? Typical. She sounds gullible, also because she thinks she can sue her way out of her own mess.
I am not a lawyer but my ( limited) understanding of Canadian contract law ( don't know about other countries) the important thing is the being paid part of this sentence. For the contract to be valid she has to have received something of value in exchange for the images....Is TFP equal value for a glamour shoot?
Not in the US, if compensation is not mentioned in the contract, none has to be paid. But I doubt any model would work all day without some from of payout. So prints or access to the JPEGs could be considered something of value. A model release is a form of contract too, it is also a release of your rights to allow the photographer or who ever is commissioning the photographic session to use the photographs in a commercial or editorial use.
When I used to shoot weddings, my contract stated that had the right to use their likeness in my portfolio or in advertising my services. It did state that no third party could use the photographs. The contract also stated that they did not have any photo rights or ownership of the images.
I have texts, and paypal records proving I paid her. I actually paid her through her old agency, she even confirmed she got the payment via text and email.
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So she signed a contract (got paid?) and now she wants out because of greener pastures? Typical. She sounds gullible, also because she thinks she can sue her way out of her own mess.
I am not a lawyer but my ( limited) understanding of Canadian contract law ( don't know about other countries) the important thing is the being paid part of this sentence. For the contract to be valid she has to have received something of value in exchange for the images....Is TFP equal value for a glamour shoot?
Not in the US, if compensation is not mentioned in the contract, none has to be paid. But I doubt any model would work all day without some from of payout. So prints or access to the JPEGs could be considered something of value. A model release is a form of contract too, it is also a release of your rights to allow the photographer or who ever is commissioning the photographic session to use the photographs in a commercial or editorial use.
When I used to shoot weddings, my contract stated that had the right to use their likeness in my portfolio or in advertising my services. It did state that no third party could use the photographs. The contract also stated that they did not have any photo rights or ownership of the images.
I have texts, and paypal records proving I paid her. I actually paid her through her old agency, she even confirmed she got the payment via text and email.
I honestly don`t think you have to be afraid of anything. You may take into consideration simply deleting the image for the peace of mind and/or talking to her...
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As someone who has been in a similar situation, I would like to express my support and full understanding of your concerns. It is not fun at all. I've had a situation with a model who's been giving me kisses before and after shoots for years, until I very suddenly received a letter from her lawyer with an amount request you'd laugh at (think like a million euros, just less). It gave me a heart condition and a huge disappointment in what I do and in people I work with.
What I can say we've learnt from contacting various law firms (Europe, so please note it's not a final word of law for you at all):
1. The one at fault is a publisher, not a photographer, and not an agency. A publisher should have verified what use is allowed and what use is prohibited.
2. A Model Release covers you pretty well.
3. Fact that the image is for free on the internet (like FB or piracy sites) covers you well.
On a question of "delete or not delete photos", I'd say it depends. If the images make your livelihood and you don't want a line of other models demanding the same joke from you after this lady succeeded, I'd advise you not to delete anything until you hear it from a judge.
I consider the discussion on glamour photography safety pretty laughable. Adult model doing things at her will (i.e. going as far as she wants for professional free images) is not your problem at all, unless you had a gun to her head. You said yourself she got her gig thanks to your pictures. Don't be shy, ask for a share!
Thanks for your advice. taking her images down will not destroy my livelihood or anything, but it would probably impact my sales 20% for a while, which is not good. Also I paid her $185 for the two hour shoot, so she did get compensated. I think what I am going to do is give her the courtesy of being given opportunity to buy the rights to the images. If her and her company are THAT concerned about it I do not see the problem. As for her glamour photography, that is exclusively what she used to shoot and has shot the same or even more risque pictures before and after my shoot with her on a regular basis, so did not think it was going to be an issue with her. She also gets upset when she sees her image used without her people crediting her. She is basically living in a different universe when it comes to this stuff.
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As someone who has been in a similar situation, I would like to express my support and full understanding of your concerns. It is not fun at all. I've had a situation with a model who's been giving me kisses before and after shoots for years, until I very suddenly received a letter from her lawyer with an amount request you'd laugh at (think like a million euros, just less). It gave me a heart condition and a huge disappointment in what I do and in people I work with.
What I can say we've learnt from contacting various law firms (Europe, so please note it's not a final word of law for you at all):
1. The one at fault is a publisher, not a photographer, and not an agency. A publisher should have verified what use is allowed and what use is prohibited.
2. A Model Release covers you pretty well.
3. Fact that the image is for free on the internet (like FB or piracy sites) covers you well.
On a question of "delete or not delete photos", I'd say it depends. If the images make your livelihood and you don't want a line of other models demanding the same joke from you after this lady succeeded, I'd advise you not to delete anything until you hear it from a judge.
I consider the discussion on glamour photography safety pretty laughable. Adult model doing things at her will (i.e. going as far as she wants for professional free images) is not your problem at all, unless you had a gun to her head. You said yourself she got her gig thanks to your pictures. Don't be shy, ask for a share!
Thanks for your advice. taking her images down will not destroy my livelihood or anything, but it would probably impact my sales 20% for a while, which is not good. Also I paid her $185 for the two hour shoot, so she did get compensated. I think what I am going to do is give her the courtesy of being given opportunity to buy the rights to the images. If her and her company are THAT concerned about it I do not see the problem. As for her glamour photography, that is exclusively what she used to shoot and has shot the same or even more risque pictures before and after my shoot with her on a regular basis, so did not think it was going to be an issue with her. She also gets upset when she sees her image used without her people crediting her. She is basically living in a different universe when it comes to this stuff.
It's also a crazy chicken and egg situation. Had you not taken such good photo's of her, she wouldn't have been so proud of herself and your shots to place them on FB and wherever else she placed them which is most likely from where ( or via via) they were misappropriated/pirated.
All the talk of 'soft-porn' and "what do you expect from such shots?" Come on people, this is 2013. If you want porn/soft or otherwise, you know where to get it and this is nowhere near it.
As for the model, she is no doubt fits someone's 'psycho' girlfriend bill and attempting to sue the photographer that made her into a semi-celeb is just errr.....well...psycho. (Bet she has a load of photo's from crappy photogs that she doesn't dare show to anyone and she won't be suing them!) LOL.
She entered into a contract for which she was well paid, professionally photographed and signed a release. You worked professionally, delivering photo's that she also regarded as good enough to use for her own advertising/vanity purposes. You took the shots for a professional purpose knowing that they would get you more views on your stock sites (that don't accept anything 'improper' or license for 'improper' purposes). Quod erat demonstrandum. Both parties are part of a winning deal and there's no case to answer IMHO (not a lawyer).
BTW great portfolio, Joshua.
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@OP, in case you didn't notice, she's using the photo as her main MM photo, and you can click on it there and get an 800 x 595 image, unprotected.
@OM: do a GIS reverse search on the pic and see the uses which are being made of the image. Exactly what I'd expect.
Here's a book cover:
http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2 (http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2)
and another:
http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4 (http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4)
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@OP, in case you didn't notice, she's using the photo as her main MM photo, and you can click on it there and get an 800 x 595 image, unprotected.
@OM: do a GIS reverse search on the pic and see the uses which are being made of the image. Exactly what I'd expect.
Here's a book cover:
[url]http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2[/url] ([url]http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2[/url])
and another:
[url]http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4[/url] ([url]http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4[/url])
Who's abusing who here? What is a book cover? An EL or not even allowed by SS terms of use?
Surely if the photo on a cover was obtained improperly the copyright holder can issue a take down on Amazon? A trifle damaging for sales?
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Bottom line: she has no case in any court of law in the universe. The model release form covers you for everything.
Only reason to remove her images is if she were to slander your name, making it difficult to get more models. Otherwise, no need to change anything.
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Who's abusing who here? What is a book cover? An EL or not even allowed by SS terms of use?
Surely if the photo on a cover was obtained improperly the copyright holder can issue a take down on Amazon? A trifle damaging for sales?
A book cover is a SL under most agencies' license agreements, unless the book sells a certain amount of copies. Please, no one contact Amazon about an author who probably didn't do anything wrong.
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Who's abusing who here? What is a book cover? An EL or not even allowed by SS terms of use?
Surely if the photo on a cover was obtained improperly the copyright holder can issue a take down on Amazon? A trifle damaging for sales?
A book cover is a SL under most agencies' license agreements, unless the book sells a certain amount of copies. Please, no one contact Amazon about an author who probably didn't do anything wrong.
No-one was suggesting contacting Amazon. I'd think this use would need a Premium Licence for 'sensitive use' if bought from SS - but I suspect this would be breaching their ToS.
I was illustrating the 'sort of use' this photo would get, which OM seemed to think unlikely. Other than one slightly bizarre advert, the in-uses I saw were either like these book covers, escort agencies or sex toys. These would seem to be prohibited by SS's terms of use; but my point is still, what else could the image be used for?
Nevertheless, as I said above, the OP dripped up the facts about this issue. He even said at one point, "...I told her I would have no problem taking the images down in exchange for a compensation shoot with something less likely to be abused, like some sort of lifestyle type shots. She refused, said she "does not do TFP anymore", which implied at that point that the original shoot had been TFP, but later we find she was well paid.
In any case, I now definitely don't think the OP has anything to worry about re being sued; but IANAL and definitely not a US lawyer.
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Thats one messed up acronym right there. IANAL
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Thats one messed up acronym right there. IANAL
LOL 8)
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Who's abusing who here? What is a book cover? An EL or not even allowed by SS terms of use?
Surely if the photo on a cover was obtained improperly the copyright holder can issue a take down on Amazon? A trifle damaging for sales?
A book cover is a SL under most agencies' license agreements, unless the book sells a certain amount of copies. Please, no one contact Amazon about an author who probably didn't do anything wrong.
No-one was suggesting contacting Amazon. I'd think this use would need a Premium Licence for 'sensitive use' if bought from SS - but I suspect this would be breaching their ToS.
I was illustrating the 'sort of use' this photo would get, which OM seemed to think unlikely. Other than one slightly bizarre advert, the in-uses I saw were either like these book covers, escort agencies or sex toys. These would seem to be prohibited by SS's terms of use; but my point is still, what else could the image be used for?
Nevertheless, as I said above, the OP dripped up the facts about this issue. He even said at one point, "...I told her I would have no problem taking the images down in exchange for a compensation shoot with something less likely to be abused, like some sort of lifestyle type shots. She refused, said she "does not do TFP anymore", which implied at that point that the original shoot had been TFP, but later we find she was well paid.
In any case, I now definitely don't think the OP has anything to worry about re being sued; but IANAL and definitely not a US lawyer.
Sorry for not laying out all the details first, I just did not want to wrote a giant 1st post. As for the images, I was going to take them down if she could help me out a little. I really don't feel it is fair to make me take down the images, especially ones I paid her well for, and get absolutely nothing in return. I thought asking her to do a shoot would work out well for both of us. She could use them for her portfolio, it would possibly but not completely replace the images she had me take down, I was willing to make that compromise, and it would not of cost her anything, except 2 hours of her time. Basically her attitude is worrying, she thinks I am trying to get TFP shoots out of her for nothing, she is getting me to take the images down, and the alternative is asking her if she wants to buy the rights to the images, which will definitely cost her more then 2 hours of her time.
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@OP, in case you didn't notice, she's using the photo as her main MM photo, and you can click on it there and get an 800 x 595 image, unprotected.
@OM: do a GIS reverse search on the pic and see the uses which are being made of the image. Exactly what I'd expect.
Here's a book cover:
[url]http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2[/url] ([url]http://www.amazon.com/PASSION-FOR-Babysitter-Stories-ebook/dp/B00C5V36BC/ref=pd_sxp_grid_pt_2_2[/url])
and another:
[url]http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4[/url] ([url]http://www.amazon.co.uk/Group-Sex-Stories-Anniversary-ebook/dp/B00CL5MZQ4[/url])
*, I am pretty sure whether SS can license an image for a book cover is not the biggest problem here. Even under sensitive use, it really clearly says images cannot be used in anything sexual or pornographic, and this definitely qualifies for it. I am going to contact shutterstock about this and see what they think.
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To get her off your back, you might offer to take them down if she pays you back the money you paid her. But point out to her that the pic can be easily lifted from her MM profile.
BTW, you're still assuming the 'in uses' all came from SS - is there a reason you think they didn't come from the other agencies, or were lifted from Fb, MM, or from a site which licensed them?
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To get her off your back, you might offer to take them down if she pays you back the money you paid her. But point out to her that the pic can be easily lifted from her MM profile.
BTW, you're still assuming the 'in uses' all came from SS - is there a reason you think they didn't come from the other agencies, or were lifted from Fb, MM, or from a site which licensed them?
Really it could of came from anywhere, just take a look at this
http://allpolus.com/cliparts/raster/318337-stock-photo-attractive-brunette-woman.html (http://allpolus.com/cliparts/raster/318337-stock-photo-attractive-brunette-woman.html)
http://lightpic.net/photo-stock/40351-4-hq-images-sexy-brown-haired.html (http://lightpic.net/photo-stock/40351-4-hq-images-sexy-brown-haired.html)
http://xtragfx.com/stockimages/1341515-4-hq-images-sexy-brown-haired.html (http://xtragfx.com/stockimages/1341515-4-hq-images-sexy-brown-haired.html)
http://www.gfx4you.com/30090-4-hq-images-sexy-brown-haired.html (http://www.gfx4you.com/30090-4-hq-images-sexy-brown-haired.html)
I downloaded these and sure enough, they are all full 39mp resolution original images these guys got somewhere. Probably by buying from a stock site. Looks like some pirates bought, or used credit card fraud to take these images and distribute them. This is a major problem, and makes taking my images down pretty pointless. Anyone could be using those images because of those pirates.
I looked at the TOS on the othersites beside SS I have my images of her uploaded, none of them would allow it to be used like that. The majority of the sales of her image was on SS though. Also the other sites I had it on, it either never sold there, or I uploaded it there in the last few weeks. Its really down to fotolia and shutterstock. Although I have never gotten an EL for her image. Furthermore, there is the fact she has the images on her facebook and model mayhem account free for anyone to download, although not in 39mp, but still easily high enough to grab for something. I even found my images of her being sold on deviant art, this guy was taking stock images and claiming he was the photographer who took them, I am currently working to get those taken down too.
Basically its one hell of a popular image, its been seen and liked probably thousands of times on her facebook, its been pirated and stolen to every corner of the internet. Whether I take them down is really irrelevant at this point, and despite its popularity on SS I doubt any abuse came about from it being there asides from people buying the full resolution image to give away. Basically I don't think someone looking to find a cover for their erotic novel went to SS and legitimately bought it. Nevertheless I contacted the relevant agencies and I'll see what I can find out.
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OM asked "what is a book cover? An EL or not even allowed by SS terms of use?"
That alone needed answering.
Now that we're talking about "sensitive use," stock images have been used on erotica by large, small, and self-publishers for ages. It would be a huge, earth-shattering thing if agencies didn't allow their images on it.
These two books in the thread are not at all unique. I think it would be a good idea for people in the stock industry to see how images get used in publishing, especially in the ebook era.
I'll tell you one thing: romantic couples like this are in HUGE demand.
http://www.dreamstime.com/royalty-free-stock-photos-sexy-couple-image18410848 (http://www.dreamstime.com/royalty-free-stock-photos-sexy-couple-image18410848)
http://www.amazon.com/On-Dublin-Street-ebook/dp/B009PC2MW8/ref=tmm_kin_title_0 (http://www.amazon.com/On-Dublin-Street-ebook/dp/B009PC2MW8/ref=tmm_kin_title_0)
Book covers keep reusing the same images because there are so few suitable ones.
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Basically I don't think someone looking to find a cover for their erotic novel went to SS and legitimately bought it.
Authors and publishers do in fact go to SS and the like to legitimately license images for their erotica.
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Huffington post uses many images that could be considered erotic
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Something I think microstock photographers should be aware of:
Amazon apparently has been cracking down on erotic books with certain kinds of covers (among other things).
This is causing writers and publishers to use "tamer" images, such as stuff that's more "fashion" or "glamour" rather than outright raunchy.
This could lead to a lot of surprises among photographers and models who didn't think their image would be used in such a way.
Just thought you should know.
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My opinion for what it's worth. Take the pictures down. Model Released or not, you are a photographer that makes money selling images. That means you are a business. A business can not go to court without being represented by a lawyer in the USA. Even if you win, you will lose. Lawyers are expensive and will need a retainer on the first legal papers filed by her. If a model ever asked me to take down their pictures, they would come off my site and I would assure them I did everything I could to help them. Good for her if she made it big...Maybe you helped her with your images. Good karma on your part will go a long way for you. There are plenty of other models out there and if she has a new cosmetic contract, do everything you can to help her and you will see, it will come back to you 10 fold.
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For $160 USD I'll give you the same advise all lawyers give - STAY OUT OF COURT! Even if you're in the right going to court can be financially devastating.
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http://nypost.com/2014/12/07/model-sues-over-misuse-of-photos-on-sex-sites/ (http://nypost.com/2014/12/07/model-sues-over-misuse-of-photos-on-sex-sites/)
This made it to the NY Post. Wow.
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http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1732&context=historical (http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1732&context=historical)
Court document.
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"Forni, 23, says she agreed to the session in January 2013 with lensman Joshua Resnick — on the “unconditional promise” that the lingerie shots not be used in an “adult-oriented"
How else are you going to use adult-oriented lingerie shots if not in an adult-oriented manner? Still, it's always the buyer who is responsible for breaking terms of the CLA.
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Still, it's always the buyer who is responsible for breaking terms of the CLA.
Exactly. The photographer has a written contract and the verbal agreement matches the TOS of Shutterstock where the images had been sold. Only the buyer broke the TOS and subsequently the "promise" of the photographer and as such should be held responsible. How can the photographer be responsible if he sells through an Agency with a TOS which promises the same as him and the buyer breaks this TOS?
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Still, it's always the buyer who is responsible for breaking terms of the CLA.
Exactly. The photographer has a written contract and the verbal agreement matches the TOS of Shutterstock where the images had been sold. Only the buyer broke the TOS and subsequently the "promise" of the photographer and as such should be held responsible. How can the photographer responsible if he sells through an Agency with a TOS which promises the same as him and the buyer breaks the TOS of the place where he bought the image?
This thread may be relevant:
http://www.microstockgroup.com/general-stock-discussion/agenices-views-on-stock-photos-of-people-on-erotica-books (http://www.microstockgroup.com/general-stock-discussion/agenices-views-on-stock-photos-of-people-on-erotica-books)
That said, I agree with Sean on this - what did the lingerie model think her image would be used for with that pose?
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Unfortunately in this day and age I think you guys need a more idiot-proof contract with models. Something that says, "By signing this document, I understand that photos of me will be distributed on the Internet through reputable agencies, however the photographer has no control over who purchases the images and whether or not those buyers adhere to the limitations of the image license." Along with something that says that they'll hold the photographer harmless against any claim regarding misuse, and take up such claims over image distribution and misuse with the distributing agencies.
Personally, if I were a photographer I'd have every model sign something containing this kind of language in addition to a normal stock release, and then snap a photo of the model holding both signed documents before the actual shoot even begins.
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Hi Bpepz,
My best advice is to speak with a Lawyer and do not use anyones advice here unless they are a lawyer and have seen your contract. On the other side of the coin I would steer you away from glamour and focus on happy healthy stock imagery that is what sells best and will also keep you out of most troubled areas.
Best of luck,
J
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On the other side of the coin I would steer you away from glamour
I wondered that he has still so many glamour pictures in his portfolio considering he is a good food photographer I would concentrate on food for stock and would do glamour only on assignment. Food is the safest bet for stock anyway there is always a remaining risk for trouble (not just legal trouble) if you use people in your stock imagery and if you use glamour for stock you are asking for trouble.
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+1 Jonathan.
But, reading the article I understood he already has the layer and, since the image in question is not avaliable at SS anymore, the case is probably over ( some kind of deal with the model to remove the picture, I guess). Actualy, the sad thing is the image's been removed. So the photographer lost one way or another, unless she compensated him for removing the picture.
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It does not appear to be finished.
http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/ (http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/)
Near the bottom there is a link to the model release.
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It does not appear to be finished.
[url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url] ([url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url])
Near the bottom there is a link to the model release.
The case has been moved from Ohio to NY per Shuttersock's terms. The NY filing was December 1st, which is probably why the case is now in the news.
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It does not appear to be finished.
[url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url] ([url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url])
Near the bottom there is a link to the model release.
pretty big frightening case for 0,38$
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She's an idiot or else greedy and looking for publicity. What did she think those kind of photos were going to be used for, selling car insurance? Maybe a church bulletin?
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.....
Near the bottom there is a link to the model release.
I have had a good look at the bottom but still can't see the link?
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.....
Near the bottom there is a link to the model release.
I have had a good look at the bottom but still can't see the link?
The document you're looking for is called: "Attachment 1: Exhibit Resnick Document"
Or was "having a good look at the bottom" just a play on words? ;D
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She's an idiot or else greedy and looking for publicity. What did she think those kind of photos were going to be used for, selling car insurance? Maybe a church bulletin?
You can say this vice versa, this is a photographer forum so it's natural to blame only the model. But what had thought the photographer how this photos going to be used yeah he said it's against the TOS of SS but come on he should known better. If you shot glamour for stock you're an idiot regardless if you are the model or the photographer, short term gain will cause long term pain in this regard!
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It is in the responsibility of shutterstock to assure that the images are not used against their own TOS. We, as photographers, seek to fully comply with their TOS and the whole workchain (our Models, stylists, etc.) relies on that.
It is easy to blame the Model or be Judgemental on Glamour photography, but regardless of personal opinion there had been clients who simply broke the rules and have to be held responsible. One thing is to license a glamour photo and use it on a advert on your lingerie store or on a ebook like "how to enjoy sex more", but portraing a Model as a hooker with a "b*g c*ck in every h**le" (like someone here said) is a complete different story. Actually, it should be on SS to constantly scan the web for the correct usage of their images and take action if something like this happens. We comply with their rules. They have to deal with the Clients and the related Problems.
In general, this case will be very interesting for all People photographers based in the US. If the photographer experiences any negative consequence it is very bad news for all of us. He did nothing wrong.
The situation might be more understandable in this case of a lingerie shoot, but if the photographer ultimately can be held responsible for the usage of any image regardless of the Release and the TOS of the selling Agency. Then Any Model can take legal Action for whatever reason which might be understandable in front of the law.
Take, for example, a beautiful portrait of a guy which appears in support of a radical or controversial political party. No way such usage can be controlled, assumed or prevented by any photographer. Or what about a high class Model which feels insulted when her Pic is used in a Advert for a cheap, labour abusive and big supermarket chain?
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there had been clients who simply broke the rules and have to be held responsible.
totally agree with this. Alamy always said they don't want glamour in their database obviously they don't want mislead their customers. Nevertheless use your common sense instead of relying on releases and TOS.
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Take, for example, a beautiful portrait of a guy which appears in support of a radical or controversial political party. No way such usage can be controlled, assumed or prevented by any photographer. Or what about a high class Model which feels insulted when her Pic is used in a Advert for a cheap, labour abusive and big supermarket chain?
You don't get to sue just because you don't like the message.
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Take, for example, a beautiful portrait of a guy which appears in support of a radical or controversial political party. No way such usage can be controlled, assumed or prevented by any photographer. Or what about a high class Model which feels insulted when her Pic is used in a Advert for a cheap, labour abusive and big supermarket chain?
Exactly why I can't get models, and certainly wouldn't model myself (hahaha).
Models sign model releases which allow for these and other sorts of uses. I don't understand why people would agree to that; but many do, obviously.
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Take, for example, a beautiful portrait of a guy which appears in support of a radical or controversial political party. No way such usage can be controlled, assumed or prevented by any photographer. Or what about a high class Model which feels insulted when her Pic is used in a Advert for a cheap, labour abusive and big supermarket chain?
You don't get to sue just because you don't like the message.
Who guarantees that? I prefer a clear legal situation...
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I would delete the photos. Forget the legal aspect, avoid possible trouble and let her have her career.
+1
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What career? She has become a walking time bomb, no photographer would want to shoot her anymore, risking to be sued. Great publicitiy, she is now getting more focus on the adult shots, more focus on the porn ads and more focus on here being a liability. Bad publicity is still publicity but obviously not the one you want in this case. Unless she expects to lose the case and just wants to jump start her 15 minutes of fame.
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What career? She has become a walking time bomb, no photographer would want to shoot her anymore, risking to be sued. Great publicitiy, she is now getting more focus on the adult shots, more focus on the porn ads and more focus on here being a liability. Bad publicity is still publicity but obviously not the one you want in this case. Unless she expects to lose the case and just wants to jump start her 15 minutes of fame.
True. She is out of business.
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She's an idiot or else greedy and looking for publicity. What did she think those kind of photos were going to be used for, selling car insurance? Maybe a church bulletin?
You can say this vice versa, this is a photographer forum so it's natural to blame only the model. But what had thought the photographer how this photos going to be used yeah he said it's against the TOS of SS but come on he should known better. If you shot glamour for stock you're an idiot regardless if you are the model or the photographer, short term gain will cause long term pain in this regard!
Everyone who does glamour, photogher and model should know this type of use is likely. The model is the one suing, not the photographer. That is why i say its her looking for publicity. Kim Kardashian started out with a sex tape. Maybe this girl wants to be the next to get famous.
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What career? She has become a walking time bomb, no photographer would want to shoot her anymore, risking to be sued. Great publicitiy, she is now getting more focus on the adult shots, more focus on the porn ads and more focus on here being a liability. Bad publicity is still publicity but obviously not the one you want in this case. Unless she expects to lose the case and just wants to jump start her 15 minutes of fame.
You know, I think your right about that.
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She's an idiot or else greedy and looking for publicity. What did she think those kind of photos were going to be used for, selling car insurance? Maybe a church bulletin?
It looks like she thought the photos would be very limited in use like for building his portfolio. She seems to be arguing that he lied to her in order to get her to sign the release. For any shots I do of people I let them know that the images could be used in ways they don't want, even though that's against the terms of the release and the sites.
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Perhaps she thought she'd be jump-starting her career as well, for example as a lingerie model. It sounds like she was concerned that her photos might be used for nefarious purposes, and the photographer reassured her that they would not. He could have added that to the release. Of all the parties involved in this suit, she would be the least at fault. She was young and perhaps hadn't modeled much. The photographer had more experience. The buyers broke the terms of the license. (Unless the photographer allowed sensitive use, which it seems he assured the model he wouldn't do.)
The people in this scenario range from naive (model) to disgusting (porn site owners) and everything in between. But to blame her above everyone else? Why?
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I looked at some of the case documents on PACER.
This is what Shutterstock is arguing:
Plaintiff also alleges -- and thus also admits -- that, later she signed a "Universal Adult Model Release for all Agencies" that does not limit use of the photographs and in fact instead expressly authorizes unrestricted use of them.
While Plaintiff generally alleges breaches of Shutterstock's Terms of Service, she was not a party to those terms; does not and cannot allege that she was; and, does not allege -- and cannot in good faith allege -- that she is an intended third-party beneficiary of them.
To me, it sounds like Shutterstock is saying that unscrupulous buyers can throw out parts of the license terms if the model release is written in a certain way. It probably isn't what they mean, but it how its coming across.
I suppose they mean that violations of the ToS are up to the agency and maybe an image's copyright holder to take care of. However, has Shutterstock or the photographer taken any kind of action against the porn and escort sites, who VERY CLEARLY violated the terms?
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While Plaintiff generally alleges breaches of Shutterstock's Terms of Service, she was not a party to those terms; does not and cannot allege that she was; and, does not allege -- and cannot in good faith allege -- that she is an intended third-party beneficiary of them.
To me, it sounds like Shutterstock is saying that unscrupulous buyers can throw out parts of the license terms if the model release is written in a certain way. It probably isn't what they mean, but it how its coming across.
I suppose they mean that violations of the ToS are up to the agency and maybe an image's copyright holder to take care of. However, has Shutterstock or the photographer taken any kind of action against the porn and escort sites, who VERY CLEARLY violated the terms?
Nope. I am not a native english speaker neither - so please correct me if I`m wrong - but knowing a bit the legal world to me it sounds like that the Model was not involved at any point into the TOS itself. Meaning: the photographer is accepting SS`s TOS when submitting / opening a contributor account and the client is agreeing to the TOS when downloading / opening a Customer account, but the Model itself never has to agree to SS TOS and as such cannot complain about breaking it since she was not involved in the first place. But this is just my interpretation of the argument...
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While Plaintiff generally alleges breaches of Shutterstock's Terms of Service, she was not a party to those terms; does not and cannot allege that she was; and, does not allege -- and cannot in good faith allege -- that she is an intended third-party beneficiary of them.
To me, it sounds like Shutterstock is saying that unscrupulous buyers can throw out parts of the license terms if the model release is written in a certain way. It probably isn't what they mean, but it how its coming across.
I suppose they mean that violations of the ToS are up to the agency and maybe an image's copyright holder to take care of. However, has Shutterstock or the photographer taken any kind of action against the porn and escort sites, who VERY CLEARLY violated the terms?
Nope. I am not a native english speaker neither - so please correct me if I`m wrong - but knowing a bit the legal world to me it sounds like that the Model was not involved at any point into the TOS itself. Meaning: the photographer is accepting SS`s TOS when submitting / opening a contributor account and the client is agreeing to the TOS when downloading / opening a Customer account, but the Model itself never has to agree to SS TOS and as such cannot complain about breaking it since she was not involved in the first place. But this is just my interpretation of the argument...
I think you are right. If you read the "universal model release" the model signed it does not seem to prohibit such uses (I think the model release many stock photographers use prohibit certain uses that this one does not). Also, the model was 21 when she signed the release...an adult. I think the model is claiming the verbal agreement (if there was one) should supersede the written release, but it seems impossible to prove there even was a verbal one.
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Perhaps the photographer and the model were both naive for believing that Shutterstock would take action against such blatant violations.
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Perhaps the photographer and the model were both naive for believing that Shutterstock would take action against such blatant violations.
From what I can tell it doesn't look like they are complaining that Shutterstock didn't take any action, the complaint seems to be that Shutterstock licensed images to the companies that violated the TOS in the first place. It seems impossible for Shutterstock to know which companies are planning to violate the TOS in advance.
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I looked at some of the case documents on PACER.
This is what Shutterstock is arguing:
Plaintiff also alleges -- and thus also admits -- that, later she signed a "Universal Adult Model Release for all Agencies" that does not limit use of the photographs and in fact instead expressly authorizes unrestricted use of them.
While Plaintiff generally alleges breaches of Shutterstock's Terms of Service, she was not a party to those terms; does not and cannot allege that she was; and, does not allege -- and cannot in good faith allege -- that she is an intended third-party beneficiary of them.
To me, it sounds like Shutterstock is saying that unscrupulous buyers can throw out parts of the license terms if the model release is written in a certain way. It probably isn't what they mean, but it how its coming across.
I suppose they mean that violations of the ToS are up to the agency and maybe an image's copyright holder to take care of. However, has Shutterstock or the photographer taken any kind of action against the porn and escort sites, who VERY CLEARLY violated the terms?
I would interpret this as saying the model has no case against Shutterstock and no right to demand they take any action regarding violations of their TOS that aren't covered in the release she signed with the photographer. This is legal hair splitting; model's release to the photographer says one thing, photographer's agreement with the agency says something more restrictive. That asserts the agency's obligation to protect the photographer, perhaps, but says nothing about any obligation to the model who signed a less restrictive document.
By the way, I have had two situations where photos of mine appeared on escort sites. I assume they were purchased, but I was able to have them removed with DMCA requests (the sites were in the US) since the claim that the model was the escort in question was defamatory and therefore a violation of the release and the agency's TOS. So it does work, at least in the US.
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Perhaps the photographer and the model were both naive for believing that Shutterstock would take action against such blatant violations.
From what I can tell it doesn't look like they are complaining that Shutterstock didn't take any action, the complaint seems to be that Shutterstock licensed images to the companies that violated the TOS in the first place. It seems impossible for Shutterstock to know which companies are planning to violate the TOS in advance.
I meant in the context of the photographer and model's interaction. He told her that she wouldn't appear on escort sites because it was against the ToS. That was naive. Did Shutterstock do anything?
I don't agree with the model's argument that Shutterstock is at fault for customer violations, but at this point the ToS seem like mere suggestions. I see them violated all the time and the agencies do nothing.
Well, Bigstock did take action against this person:
https://kdp.amazon.com/community/thread.jspa?threadID=213169
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How else are you going to use adult-oriented lingerie shots if not in an adult-oriented manner? Still, it's always the buyer who is responsible for breaking terms of the CLA.
If it is so obviously and self evidently a "glamour" image then surely any publication of it violates the terms of the licence ? If the image can have no other meaning. In which case why are the stock sites accepting and selling these images without a special model release which recognises and acknowledges the context in which they are likely to inevitably be used ?
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Maybe the agencies should just drop the pretense and loosen the terms overall. That way, photographers and models would know what they're really getting into.
Perhaps microstock is too big to police, and people who want protection should do RM.
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How else are you going to use adult-oriented lingerie shots if not in an adult-oriented manner? Still, it's always the buyer who is responsible for breaking terms of the CLA.
If it is so obviously and self evidently a "glamour" image then surely any publication of it violates the terms of the licence ? If the image can have no other meaning. In which case why are the stock sites accepting and selling these images without a special model release which recognises and acknowledges the context in which they are likely to inevitably be used ?
The IS CLA says you can use the image to the extent the model is portrayed in the image. So you can't use a smiling child on a porn cover, but an adult in lingerie on a bed certainly depicts a ... Woman in lingerie in a bed.
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What career? She has become a walking time bomb, no photographer would want to shoot her anymore, risking to be sued. Great publicitiy, she is now getting more focus on the adult shots, more focus on the porn ads and more focus on here being a liability. Bad publicity is still publicity but obviously not the one you want in this case. Unless she expects to lose the case and just wants to jump start her 15 minutes of fame.
True. She is out of business.
No worries. In the (unlikely, I hope) event she wins all these lawsuits, she is going to get a big payday. With a quick change of hair color and style, she can start whatever business she wants, and no one will probably even know, or even care.
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It is disappointing to see how many of you were so quick to judge the image in particular and glamour images in general. There are numerous usages for glamour images that would not violate SS's TOS. Sad to see so many of you have such a limited vision of what a lingerie (a fairly tame one at that) is only good for an escort ad.
It seems to me that the real point of this issue is a photographer using standard and accepted business practices without any subterfuge or malice is facing a federal lawsuit that he will have to submit a REAL defense for. It seems very clear to me that the photographer was acting in the same manner that many of us here do when shooting models for stock. We should not get bogged down in the content and jump to this photographer's defense. The provocative nature of the photo in question, in my opinion, is not relevant. Images twice as revealing are available on micro stock and at the same time images that are half as revealing are pirated for the same purposes complained about here.
Unfortunately I have fielded calls from models upset upon finding one of their photos in print. The case that is most clear in my mind was from a plus-sized model who was featured in a full-page ad for a diet pill. She was actually not complaining about the association with the product. Her (not-so-professional) agent got her thinking that it was a multi-thousand $$ model fee missed where upon I emailed her back a copy of the plain language iStock model release not only she signed but her sister witnessed.
The acknowledgement of the signed model release SHOULD have ended this suit. It is unfortunate that the NY Post and UK Daily Mail have gotten ahold of this story and presented it in the most salacious manner possible. I do hope that the photographer has taken good council from a qualified IP attorney and possibly even filed a counter-suit. I further hope he prevails because it will benefit us all. What would be amazing would be to have Shutterstock stand up strongly behind the photographer and defend this frivolous lawsuit.
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I consider a glamour shot one in which a woman dresses up, has her hair styled, makeup done, and, well, looking glamorous. Beauty, poise, elegance, and classy might be words i think of when i see a glamour shot. I don't consider the images in question "glamorous". I consider them sexual in nature. Nothing to do with glamour. I am guessing a male photographer has given the title "glamour" to these shots in order to make them seem more mainstream and acceptable. I can see Victorias Secret using these shots because their business revolves around sex. JCPenney sells lingerie but i bet you wouldnt see it in one of their ads.
Is there a market for that type of photography? Sure! Clearly the image has been used in ways that it relates to!
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I further hope he prevails because it will benefit us all. What would be amazing would be to have Shutterstock stand up strongly behind the photographer and defend this frivolous lawsuit.
They're not the only defendants. The model is also suing Playboy, Amazon, Wallsheaven, erotica authors, pick-up artist gurus, strip clubs, radio stations, escort sites, UPROXX, Model Mayhem, and porn sites.
I'm interested in finding out if this case defines erotic fiction as pornography or not. The porn and escort sites, however, blatantly violated the license--I mean the ones who didn't just steal the pic.
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I consider a glamour shot one in which a woman dresses up, has her hair styled, makeup done, and, well, looking glamorous. Beauty, poise, elegance, and classy might be words i think of when i see a glamour shot. I don't consider the images in question "glamorous". I consider them sexual in nature. Nothing to do with glamour. I am guessing a male photographer has given the title "glamour" to these shots in order to make them seem more mainstream and acceptable. I can see Victorias Secret using these shots because their business revolves around sex. JCPenney sells lingerie but i bet you wouldnt see it in one of their ads.
Is there a market for that type of photography? Sure! Clearly the image has been used in ways that it relates to!
In the UK, "glamour" modeling can mean "page three" topless stuff. It's a term. Jordan is a "glamour model."
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Thanks Ava,
Clearly Cathyslife is not aware that her individual definition of the term 'glamour' photography differs from a more widely accepted genre of photography that has a definable market. No insult intended, but clearly she did not have a wider view of this market when she responded. Again, the issue should not only be about the content of the image when the professional workflow that this photographer exhibited which has come under attack. We should all be concerned.
As purely an aside, the term of glamour photography, from what I understand, is also referred to as charm in the UK which I have always found a little funny. The difference is that I am not deriding it as a viable market.
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As purely an aside, the term of glamour photography, from what I understand, is also referred to as charm in the UK w
I've never heard of it called charm in the UK, but I've never heard of a lot of things.
Clearly, this UK company hasn't heard of it in a 'glamma' context either:
http://www.charmphotography.co.uk (http://www.charmphotography.co.uk)
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Thanks Ava,
Clearly Cathyslife is not aware that her individual definition of the term 'glamour' photography differs from a more widely accepted genre of photography that has a definable market. No insult intended, but clearly she did not have a wider view of this market when she responded. Again, the issue should not only be about the content of the image when the professional workflow that this photographer exhibited which has come under attack. We should all be concerned.
As purely an aside, the term of glamour photography, from what I understand, is also referred to as charm in the UK which I have always found a little funny. The difference is that I am not deriding it as a viable market.
This photographer has the same idea of glamour photography that i have.
https://www.creativelive.com/courses/glamour-photography-sue-bryce (https://www.creativelive.com/courses/glamour-photography-sue-bryce)
:-)
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"Glamour Shots" in the US were popular in the 80s and 90s. They were glamorous photos of regular women. This is what Sue Bryce is trying to update.
http://www.buzzfeed.com/whitneyjefferson/12-ways-to-get-the-best-glamour-shot (http://www.buzzfeed.com/whitneyjefferson/12-ways-to-get-the-best-glamour-shot)
Except there appears to be significantly less hairspray in Bryce's video.
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While I didn't write the book on it, I did shoot the cover...
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Thanks Ava,
Clearly Cathyslife is not aware that her individual definition of the term 'glamour' photography differs from a more widely accepted genre of photography that has a definable market. No insult intended, but clearly she did not have a wider view of this market when she responded. Again, the issue should not only be about the content of the image when the professional workflow that this photographer exhibited which has come under attack. We should all be concerned.
As purely an aside, the term of glamour photography, from what I understand, is also referred to as charm in the UK which I have always found a little funny. The difference is that I am not deriding it as a viable market.
This photographer has the same idea of glamour photography that i have.
https://www.creativelive.com/courses/glamour-photography-sue-bryce (https://www.creativelive.com/courses/glamour-photography-sue-bryce)
:-)
She has women posing nude and in lingerie.
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Seems they ignored the TOS at SS.
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Makes perfect sense why you would be defending "glamour" shots, danhowl :) .
Shelma, i did see the lingerie shots...didnt see the nudes. i think the term "glamour" applies to the bryce shots. Not so much to the shots in question here. Just my opinion (i am allowed to have one). Clearly someone in the photography world has decided to use the term "glamour" loosely here.
Back to the issue at hand, I think both sides made mistakes and no one should be held accountable. Basically its a frivolous lawsuit.
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She's getting a lot of publicity out of it. It was in my local paper two days ago. Nudge, nudge, wink, wink.
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What career? She has become a walking time bomb, no photographer would want to shoot her anymore, risking to be sued. Great publicitiy, she is now getting more focus on the adult shots, more focus on the porn ads and more focus on here being a liability. Bad publicity is still publicity but obviously not the one you want in this case. Unless she expects to lose the case and just wants to jump start her 15 minutes of fame.
because she's reacting emotionally and not rationally.
besides, maybe she's done with modeling and she already planned to settle down, after all her reputation is compromised and there's nothing she can do to clean it up.
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Lets just say that I won't be using those images on my grandma's Christmas cards.
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Lets just say that I won't be using those images on my grandma's Christmas cards.
Your grandpa might appreciate one tho. ;)
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So a photographer took a photograph and got a signed model release. Someone else either stole the photograph and/or used it in violation of its license. Now the photographer gets sued?
If someone steals your property and uses it in a harmful way, how can you be held responsible?
This should terrify all of us. It could happen to anyone regardless of the content.
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Now the photographer gets sued?
in an ideal world the agency would be liable, not the photographer, but ...
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.
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Now the photographer gets sued?
in an ideal world the agency would be liable, not the photographer, but ...
Not sure how the agency can be liable.
In an ideal world the end user would be liable, unless the tog allowed 'sensitive use'.
In response to an earlier post, the model was not naive. She was plenty old enough to think for herself about this.
She seems cluelessly mercenary and/or (as suggested above) just wants her moment of infamy in the spotlight.
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I'm very sorry for your situation developing like this. I'm being sued as well on very similar terms as you.
Like I said before, I was never planning to satisfy model's requirements without hearing it first from a judge. Firstly, because I did not publish or sell anything to anyone on terms of "for pornographic purpose", and no one has yet proved the "bad websites" even obtained images the legal way (from me or from agency). I don't consider myself guilty of anything. Secondly, because I'd have to close my business since every model would think she can break a Model Release just like that.
I am currently in a final stage of awaiting the order. I suspect the outcome will mean a lot for stock photographers, at least in my country. So I'm very curious how our judge (and yours) will rule.
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I've never heard of it called charm in the UK, but I've never heard of a lot of things.
It's called charme in France. The same style which Britain calls glamour.
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From Wiki:
Glamour photography is a genre of photography in which the subjects, usually female, are portrayed in erotic or exciting ways ranging from fully clothed to nude but in ways that either may conceal or may otherwise not especially draw attention to the subjects nipples and vulva. Glamour photography is typically less explicit than pornography and erotica although the term may also be used as a euphemism for erotic photography.
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I'm very sorry for your situation developing like this. I'm being sued as well on very similar terms as you.
Like I said before, I was never planning to satisfy model's requirements without hearing it first from a judge. Firstly, because I did not publish or sell anything to anyone on terms of "for pornographic purpose", and no one has yet proved the "bad websites" even obtained images the legal way (from me or from agency). I don't consider myself guilty of anything. Secondly, because I'd have to close my business since every model would think she can break a Model Release just like that.
I am currently in a final stage of awaiting the order. I suspect the outcome will mean a lot for stock photographers, at least in my country. So I'm very curious how our judge (and yours) will rule.
I am very sorry to hear that. Indeed it will be a very important decision from the court for all stock photographers. Im do not think that this is related directly to the style of photography (glamour in the OPs case), but a general legal situation.
You are from the Netherlands, right? It will be also interesting to compare the US vs the NL decision.
Yesterday I checked some of the "Escort" and alike sites and I found tons! of stock photos. Surprisingly most of them the "harmless" ones...e.g. normal Portraits. For example one mature woman, maybe in her late 40s or early 50s, making a phone call with the wedding ring on her hand visible - with a subtext like "F**k married women in the neighborhood" blablabala. This is an issue for all stock photographers.
It will also be very interesting how Shutterstock reacts during the whole case. If SS does not protect the photographer at all it will be highly disapointing to me and should make us all rethink our relationship to them. Same, obviously, goes for any other "Agency" that fails to act in the interest of the photographer as long as they comply with their rules.
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I am very sorry to hear that. Indeed it will be a very important decision from the court for all stock photographers. Im do not think that this is related directly to the style of photography (glamour in the OPs case), but a general legal situation.
You are from the Netherlands, right? It will be also interesting to compare the US vs the NL decision.
Thank you! Yes, NL.
As far as I understand this, an agency is basically not really required to "protect" anyone until it is actually proven an image was purchased from that agency. Especially if a photographer is not exclusive. At least I've been selling her images exclusively on iStock for past years, so one can safely assume a bigger chance iStock could be involved (or not). However, with easy "copy-paste" on the Internet and model having her laptop been stolen in the past we really don't know how images got to adult sites. There are millions of possible ways.
It is very regrettable that even normal portraits are mis-used like this all over. Every job on this planet has risks. I believe we all should educate ourselves and models about our risks, because they won't go away any time soon. Not like you start a shoot with a mention of pornsites :) , but...
The lnternet laws are still making baby steps (if any at all), and the publishers just get away with anything. It makes me angry, even more so when I'm put on a stand instead of an actual criminal.
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I think there's a lesson here. Photographers need to change their releases to be more explicit. They need to explain to models that their photos will be made publicly available on such and such sites or similar sites, and that it's possible the images will be misused. If I were a glamour photog I would get a few of us together and pay an attorney to write a much more encompassing release form. Have a section where the model can decide whether she want to allow sensitive use. Then the photographe sticks to that agreement. It won't stop lawsuits, but it will certainly help the photographer be released from the suit if the model understood from the beginning that the end users were the ones breaking the terms the model agreed to....not the photographer. Don't give verbal reassurance you can't back up. Protect yourself. Put it all in writing.
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I think there's a lesson here. Photographers need to change their releases to be more explicit. They need to explain to models that their photos will be made publicly available on such and such sites or similar sites, and that it's possible the images will be misused. If I were a glamour photog I would get a few of us together and pay an attorney to write a much more encompassing release form. Have a section where the model can decide whether she want to allow sensitive use. Then the photographe sticks to that agreement. It won't stop lawsuits, but it will certainly help the photographer be released from the suit if the model understood from the beginning that the end users were the ones breaking the terms the model agreed to....not the photographer. Don't give verbal reassurance you can't back up. Protect yourself. Put it all in writing.
I agree. After a recent issue I had, I will be changing mine. Releases seem to indicate the photographer can offer some level of protection of the use of the images, when that is actually impossible for anyone, and finding the photographer responsible would basically negate the entire industry.
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The cases like this are the reason why I almost stopped uploading images with people, especially glamour and with children, to microstock. I think that with a very large diffusion and all kind of customers, often with very low budget, the risk that images are used in a way that my model, who trusted me, will not like is too big. I don't think that in RM the risk is the same. Companies who spent hundreds on one image are usually more serious.
Loose a friend or being sued for for 0.28-0.38 is not worth for me.
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Loose a friend or being sued for for 0.28-0.38 is not worth for me.
I agree. I do shoot 90% of the time People, including underwear shots. If the photographer will be held liable despite having done nothing wrong I may consider changing my strategy for microstock. His promise to the model that the photos won`t appear on such sites (porn and alike) was based on the TOS of Shutterstock which indeed forbid such usage (please see the original post of the photographer. I assume he told the truth and did not opt in sensitive use as an option to his benefit).
The question now is:
1. Does the court recognize the "verbal agreement" despite not being written down in the release and how will it be interpreted since his promise is based on the TOS of SS .
2. If so, if the photographer can be held liable for the breach of the TOS of a client of SS despite not being personally involved in any transaction.
3. If SS finds or wants to find a way to pass all responsibility through to the photographer.
# 1 is the least interesting point to me. I never promise any model anything specific. Usually if a newbie Model asks me where the images appear I tell them frankly that nobody can really know. #2 and #3 may have a high impact on my long term strategy and may change the business and its legal fineprints ultimately.
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Now the photographer gets sued?
in an ideal world the agency would be liable, not the photographer, but ...
Not sure how the agency can be liable.
In an ideal world the end user would be liable, unless the tog allowed 'sensitive use'.
In response to an earlier post, the model was not naive. She was plenty old enough to think for herself about this.
She seems cluelessly mercenary and/or (as suggested above) just wants her moment of infamy in the spotlight.
I don't think sensitive use on SS would allow the kinds of things the model is objecting to. There are prohibitions specifically against it: "The Premier License prohibits the use of all Content in a fashion that a reasonable person or applicable law would consider pornographic, obscene, immoral, infringing, defamatory or libelous in nature, notwithstanding the context of such Content."
I think the model may have a valid complaint against those companies that did use her image in a way that is against the TOS. The question is can the photographer and Shutterstock be responsible for putting images up on Shutterstock knowing that those images could be used by those kinds of companies (although against the TOS).
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Loose a friend or being sued for for 0.28-0.38 is not worth for me.
I agree. I do shoot 90% of the time People, including underwear shots. If the photographer will be held liable despite having done nothing wrong I may consider changing my strategy for microstock. His promise to the model that the photos won`t appear on such sites (porn and alike) was based on the TOS of Shutterstock which indeed forbid such usage (please see the original post of the photographer. I assume he told the truth and did not opt in sensitive use as an option to his benefit).
The question now is:
1. Does the court recognize the "verbal agreement" despite not being written down in the release and how will it be interpreted since his promise is based on the TOS of SS .
2. If so, if the photographer can be held liable for the breach of the TOS of a client of SS despite not being personally involved in any transaction.
3. If SS finds or wants to find a way to pass all responsibility through to the photographer.
# 1 is the least interesting point to me. I never promise any model anything specific. Usually if a newbie Model asks me where the images appear I tell them frankly that nobody can really know. #2 and #3 may have a high impact on my long term strategy and may change the business and its legal fineprints ultimately.
I'm not a lawyer so I can't say for sure but I think a verbal agreement is just as binding as a written agreement, although in this case there will probably be some argument over what the exact wording was. I doubt anyone would want to promise that they have any real control over what people do with images once they go on the internet, if that kind of promise is even possible. If the court finds the document was fraudulent then I doubt Shutterstock would stick up for the photographer at that point.
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Loose a friend or being sued for for 0.28-0.38 is not worth for me.
I agree. I do shoot 90% of the time People, including underwear shots. If the photographer will be held liable despite having done nothing wrong I may consider changing my strategy for microstock. His promise to the model that the photos won`t appear on such sites (porn and alike) was based on the TOS of Shutterstock which indeed forbid such usage (please see the original post of the photographer. I assume he told the truth and did not opt in sensitive use as an option to his benefit).
The question now is:
1. Does the court recognize the "verbal agreement" despite not being written down in the release and how will it be interpreted since his promise is based on the TOS of SS .
2. If so, if the photographer can be held liable for the breach of the TOS of a client of SS despite not being personally involved in any transaction.
3. If SS finds or wants to find a way to pass all responsibility through to the photographer.
# 1 is the least interesting point to me. I never promise any model anything specific. Usually if a newbie Model asks me where the images appear I tell them frankly that nobody can really know. #2 and #3 may have a high impact on my long term strategy and may change the business and its legal fineprints ultimately.
I'm not a lawyer so I can't say for sure but I think a verbal agreement is just as binding as a written agreement, although in this case there will probably be some argument over what the exact wording was. I doubt anyone would want to promise that they have any real control over what people do with images once they go on the internet, if that kind of promise is even possible. If the court finds the document was fraudulent then I doubt Shutterstock would stick up for the photographer at that point.
Regarding the verbal agreement: yes, I think you are right. But still a bit of muddy waters to fish in...lets see what the court says.
The affected photographer who got sued says this in his original post:
She expressed concern about her images ending up on a porn site, I told her shutterstock does not allow images to be used for pornographic purposes, which she seemed relieved about. All well and good right?
I assumed many of us would tell something like this when shooting for stock. And believe so as well. Are all those photographers now liable for any damage by breach of the SS TOS? Thats the big question!
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I agree. After a recent issue I had, I will be changing mine. Releases seem to indicate the photographer can offer some level of protection of the use of the images, when that is actually impossible for anyone, and finding the photographer responsible would basically negate the entire industry.
That's interesting. A person can sign away their legal rights in the USA ?
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I agree. After a recent issue I had, I will be changing mine. Releases seem to indicate the photographer can offer some level of protection of the use of the images, when that is actually impossible for anyone, and finding the photographer responsible would basically negate the entire industry.
That's interesting. A person can sign away their legal rights in the USA ?
What?
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I agree. After a recent issue I had, I will be changing mine. Releases seem to indicate the photographer can offer some level of protection of the use of the images, when that is actually impossible for anyone, and finding the photographer responsible would basically negate the entire industry.
That's interesting. A person can sign away their legal rights in the USA ?
???
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What?
It's a question: Whether something written and signed in a contract necessarily trumps existing legislation and / or legal protections.
Personally I doubt that it necessarily always would.
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What?
It's a question: Whether something written and signed in a contract necessarily trumps existing legislation and / or legal protections.
Personally I doubt that it necessarily always would.
Of course a contract wouldn't always trump laws. You can't have contracts for murder or slavery for example that trump laws.
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What?
It's a question: Whether something written and signed in a contract necessarily trumps existing legislation and / or legal protections.
Personally I doubt that it necessarily always would.
It doesn't in the UK but it may be different in the US.
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I think what is getting lost is that it is not the nature of the shot that is at issue. The model is not UNHAPPY with the photos. She was actively using them to represent her, though she does not, in my professional view, have any great potential in the field. It seems quite likely that the images were stolen/pirated from a free-stock site or used outside of SS TOS. I have had both happen to me (pirated and SS download exceeding TOS). Neither of which are the photographer's fault. If her suit succeeds it would have a profound chilling effect on model shots/microstock.
Has the photographer set up a defense fund? How can we help?
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What?
It's a question: Whether something written and signed in a contract necessarily trumps existing legislation and / or legal protections.
Personally I doubt that it necessarily always would.
How does acknowledgement of risks and release of the photographer from liability "signing away rights"? I mean, that's the purpose of releases - to sign away rights in some cases. Like my right to sue in a court in many places is signed away to become the right to arbitration.
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I think what is getting lost is that it is not the nature of the shot that is at issue. The model is not UNHAPPY with the photos. She was actively using them to represent her, though she does not, in my professional view, have any great potential in the field. It seems quite likely that the images were stolen/pirated from a free-stock site or used outside of SS TOS. I have had both happen to me (pirated and SS download exceeding TOS). Neither of which are the photographer's fault. If her suit succeeds it would have a profound chilling effect on model shots/microstock.
Has the photographer set up a defense fund? How can we help?
First she's claiming the release is not valid. If I understand it correctly she's saying that the photographer promised that there was no way someone could get the photos to be used at adult sites and by uploading them to Shutterstock he knew someone could take them and use them at adult sites.
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http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/ (http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/)
http://www.plainsite.org/dockets/download.html?id=184883944&z=0ad4dce6 (http://www.plainsite.org/dockets/download.html?id=184883944&z=0ad4dce6)
The Amended Complaint makes it unambiguously clear that written document that was signed by Plaintiff for Defendant Resnick (referred to in the Amended Complaint as the "Resnick Document") is NOT a contract at all because it was executed AFTER the oral agreement (as alleged in the Amended Complaint) was negotiated and completely performed.
(1) the Resnick Document is not a contract;
(2) that even if the Resnick Document was a contract,
it was procured by fraud; and
(3) even if there were no fraud, the Resnick Document
is only part or a larger oral/written agreement
between the parties to that agreement.
This is what the model's lawyer is arguing about the model release.
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First she's claiming the release is not valid. If I understand it correctly she's saying that the photographer promised that there was no way someone could get the photos to be used at adult sites and by uploading them to Shutterstock he knew someone could take them and use them at adult sites.
Yes, but how does she know that the image wasn't lifted from her Facebook posting? Again, if this succeeds in her favor we will have to re-look at every release we have signed from a model.
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How does acknowledgement of risks and release of the photographer from liability "signing away rights"?
I think I agree with the what you are implying - the gist.
(Guessing you typed that on an iPhone)
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First she's claiming the release is not valid. If I understand it correctly she's saying that the photographer promised that there was no way someone could get the photos to be used at adult sites and by uploading them to Shutterstock he knew someone could take them and use them at adult sites.
Yes, but how does she know that the image wasn't lifted from her Facebook posting? Again, if this succeeds in her favor we will have to re-look at every release we have signed from a model.
If the court rules that the Model Release is invalid every people photographer and every Agency selling People photography is in deep trouble ;-)
(I looked at it and it is pretty much a standard release)
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First she's claiming the release is not valid. If I understand it correctly she's saying that the photographer promised that there was no way someone could get the photos to be used at adult sites and by uploading them to Shutterstock he knew someone could take them and use them at adult sites.
Yes, but how does she know that the image wasn't lifted from her Facebook posting? Again, if this succeeds in her favor we will have to re-look at every release we have signed from a model.
If the court rules that the Model Release is invalid every people photographer and every Agency selling People photography is in deep trouble ;-)
(I looked at it and it is pretty much a standard release)
It would be interesting to hear from a lawyer (since obviously I'm not a lawyer) on this but the complaint says: "36. Prior to the commencement of the TP session, Plaintiff
conditioned her involvement in the TP session with an oral and unconditional promise from Defendant Resnick that none of the photos Defendant Resnick was going to take of the Plaintiff would be used, directly or indirectly, in any adult-oriented, pornographic, or obscene manner, and Plaintiff expressly conditioned her involvement in the photo shoot and with Defendant Resnick on this basis."
I don't see how he could reasonably use those photos for his portfolio and make the promise that the images wouldn't be used in any adult-oriented manner (how can he control what other people do?). If he wants to put them on his portfolio website then someone could just as easily steal from there and use them in that way. It seems he could only use them as prints and show them directly to clients but that seems very restrictive to me.
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If Resnick did indeed make the alleged promise verbally, then to me it seems he made a big mistake by doing so, since as a photographer, he must know that such a statement could never be fulfilled. He must know the inherent risks of posting anything on the internet, even on Shutterstock. If her attorney can prove that he made that statement verbally, and if spoken agreements are legally binding, then Resnick might be in deep do-do.
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According to the original post he told her Shutterstock didn't allow those uses, which is true. I think she may have a difficult time proving how the photo was distributed, since she posted it on Facebook. I'm sure that will be one of the defenses.
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Some people have already touched back on this but if you refer to Resnick's very first post he says this,
I shot a model last year for some glamour shots to use for stock. I told her it would be used for stock, and she signed a model release. She expressed concern about her images ending up on a porn site, I told her shutterstock does not allow images to be used for pornographic purposes, which she seemed relieved about. All well and good right?
He doesn't specifically say himself that he promised her anything other than stating that Shutterstock has TOS in place for such uses that she expressed concern about. I assume she read the release before signing it and there is a witness as well. If she had any real concern at all that the photos would be misused then she should have amended the release before signing it. So she's obviously aware that there could be misuse if she specifically asked if they could end up on a porn site. Here is a link to a copy of the release>> http://ia802500.us.archive.org/0/items/gov.uscourts.ohnd.209347/gov.uscourts.ohnd.209347.2.1.pdf
It's also obvious that she loved the photos. Immediately after the NY Post article she changed her profile picture to a picture taken by Mr. Resnick. Check it out >> https://www.facebook.com/nikkie.nicole.18
It's apparent she wanted the added publicity if you look at her comments. Having the article released itself is a direct contributor to her image being portrayed negatively. Here is a bit from the NY Post article, “She was mortified,” her lawyer, Michael O’Shea, told The Post." If she had any concern about her public image before, just go look at the comments people are leaving on the posting of the article on NY Post's Facebook page and other places like Daily Mail>> http://www.dailymail.co.uk/news/article-2864439/Glamour-model-sues-photographer-lingerie-pictures-used-advertise-porn-Swiss-call-girls-Horny-Housewives-Dubai-erotica.html
If Ms. Forni was "mortified" before then she just made it a whole lot worse. I suppose all the added negative attention is Mr. Resnicks fault as well. It's ridiculous to make a claim of embarrassment then become the catalyst of something that embarrasses you further.
Here is bit directly from the court document submitted by Ms. Forni's lawyer,
30. This case involves the fraudulent inducement and subsequent fraudulent and illegal use of the Plaintiff’s photographic images for profit, without the consent or compensation to the Plaintiff, and all of which has caused and will continue to cause vocational and/or professional damage to the current and future modeling prospects of the Plaintiff.
31. This Court has jurisdiction of this matter pursuant to 28 USC § 1331 and 15 USC § 1121.
32. This Court has jurisdiction of this matter pursuant to 28 USC § 1332, and the amount in controversy exceeds $75,000.00, and this Court has jurisdiction over all of the state law claims pursuant to 28 USC § 1367(a).
33. Plaintiff is a professional model who has been paid and
continues to be paid for professional modeling work.
34. On or about January 20, 2013, the Plaintiff was contacted by Defendant Resnick to see if the Plaintiff would be willing to work for what is called a 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.
35. Plaintiff agreed to and did travel to the Defendant Resnick’s photography studio in Columbus, Ohio to take the
photographs for the TP.
36. Prior to the commencement of the TP session, Plaintiff conditioned her involvement in the TP session with an oral and unconditional promise from Defendant Resnick that none of the photos Defendant Resnick was going to take of the Plaintiff would be used, directly or indirectly, in any adult-oriented pornographic, or obscene manner, and Plaintiff expressly conditioned her involvement in the photo shoot and with Defendant
Resnick on this basis.
37. After the completion of the TP session but prior to the departure from Defendant Resnick’s studio, Plaintiff signed a “Universal Adult Model Release for All Agencies” written document (the “Resnick Document”) which did not memorialize the oral agreement Plaintiff had with Defendant Resnick and did contain an integration and/or merger clause. A copy of the Resnick Document is attached hereto and made a part hereof as Exhibit A.
38. Because of the lack of a integration and/or merger clause, all of the oral statements, representations and/or promises made by Defendant Resnick, are part of the complete contract between the Plaintiff and Defendant Resnick (the “Resnick Contract”).
39. Almost immediately after the completion of the photo shoot, Defendant Resnick, in complete violation of the Resnick Contract, began to sell the photos of the Plaintiff on the internet to various purchasers for adult-oriented and/or sexual purposes, including but not limited to Defendant Shutterstock, Defendant Playboy, Defendant Emma Nichols, Defendant Hunt, Defendant Griffin, Defendant Ray, Defendant Avery, Defendant Madison, Defendant
Armstrong, Defendant Lothario, Defendant BradP, Defendant Blush Pittsburgh, Defendant Blush Portland, Defendant Vegas Cabaret, Defendant Love Store, Defendant Red Radio, Defendant Clear Channel, Defendant MUZU, Defendant FVE, Defendant UPROXX, Defendant Model Mayhem.com, Defendant Clover, all of the John Doe Internet
Photograph Company defendants, the US Porn Companies and the Non-Us Porn Companies (all of these defendants being hereinafter collectively referred to as the “Adult Photo Companies”).
Lets tackle the first problem I have with this. I've read all the posts on this forum and Mr. Resnick wrote this,
I have texts, and paypal records proving I paid her. I actually paid her through her old agency, she even confirmed she got the payment via text and email.
Well that is definitely not "trade for portfolio" as her lawyer claims in the doc. She was clearly compensated plus he mentioned they would be used for Stock photography directly to her. Her lawyer goes on to mention the release and how the oral agreement was not added to the release by an amendment but is then considered part of a complete contract. The backbone of this entire lawsuit is based on "he said" "she said". The next problem I see is that her lawyer goes on to imply the he sold the images directly to the defendants that misused her images, rather than specifying that Shutterstock was the agency in control of all sales. This is severe misinformation. The outcome of this could affect any photographer who uses models for stock. Better reverse image search your portfolio for misuse because a model could make "baseless" claims of oral agreement, as Mr. Resnick's lawyer puts it, and sue you over the usage of the images. We assume the universal adult model release for all agencies would protect him. Better hope so.
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In the absence of proof to the contrary, this would normally be considered a "he said-she said" verbal exchange and, in the U.S. at least, the written contract would supersede the verbal statements. However, if the plaintiff can prove to the satisfaction of the court that such statements were made prior to her signing the model release, then the claim of fraudulently getting her to sign the release would likely stand up.
On any model shoot, I always explain to the model just how the images may be used, including the danger of uses outside of what I as the photographer, any agency that may represent me or she/he may desire. Only after this explanation and the agreement of the model is the shoot begun and release signed. I've lost a few models this way, but better they know up front the potential dangers of images that will be up on the internet. Also for this reason, I never shoot children except as work for hire specifically for a client. That's something I just don't want on my conscience.
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On any model shoot, I always explain to the model just how the images may be used, including the danger of uses outside of what I as the photographer, any agency that may represent me or she/he may desire.
Seems like verbiage to that effect should be also written right into the contract. Once the model signs, there is no he said, she said. The saying at one place i used to work was "if it isnt in writing, it didn't happen."
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The whole case seems a little bit too thin to me, but let's see what the court decision will be.
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We def need an updated MR that includes a paragraph stating they won't sue us if someone lifts their image (from wherever, including other sites that purchased the image) and uses it inappropriately.
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We def need an updated MR that includes a paragraph stating they won't sue us if someone lifts their image (from wherever, including other sites that purchased the image) and uses it inappropriately.
Yeah. Definitely. We could crowdfund here to pay a US lawyer to update/convert the existing getty release into a international one which excludes those risks. Should`nt be very expensive.
Anybody in? Someone from the US would have to take the lead, ideally with a good connection to a lawyer....
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We def need an updated MR that includes a paragraph stating they won't sue us if someone lifts their image (from wherever, including other sites that purchased the image) and uses it inappropriately.
Yeah. Definitely. We could crowdfund here to pay a US lawyer to update/convert the existing getty release into a international one which excludes those risks. Should`nt be very expensive.
Anybody in? Someone from the US would have to take the lead, ideally with a good connection to a lawyer....
If anyone should crowdfund / pay for this than the agencies!
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We def need an updated MR that includes a paragraph stating they won't sue us if someone lifts their image (from wherever, including other sites that purchased the image) and uses it inappropriately.
Shutterstock's MR says, "I hereby release, discharge, and agree to hold harmless the Photographer, the Photographer’s heirs, legal representatives and assigns, and all persons acting under the Photographer’s authority or those for whom he/she is
acting, from any liability by virtue of any use of the Content or any changesor alterations made thereto." which seems pretty all-encompassing to me, and on my non-legal reading seems to allow the 'tog to use them any way s/he wants. Caveat model.
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We def need an updated MR that includes a paragraph stating they won't sue us if someone lifts their image (from wherever, including other sites that purchased the image) and uses it inappropriately.
Shutterstock's MR says, "I hereby release, discharge, and agree to hold harmless the Photographer, the Photographer’s heirs, legal representatives and assigns, and all persons acting under the Photographer’s authority or those for whom he/she is
acting, from any liability by virtue of any use of the Content or any changesor alterations made thereto." which seems pretty all-encompassing to me, and on my non-legal reading seems to allow the 'tog to use them any way s/he wants. Caveat model.
Thank you Sue! Sounds indeed good.
I worked so far with a custom, global release. A couple of years back I had cases where some agencies did not accept releases branded from other Agencies. Is this still the case?
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Maybe, maybe not. The court may find those terms too broad. For example, I was once asked to sign a non-compete agreement that would preclude me from working for the clients, competitors of the clients, and any potential client the agency talked to for a period of five years after leaving the agency (I refused to sign). A knowledgeable person assured me that it would never stand up in court because the time was too lengthy (5 years)...the courts had determined that 6 months to 1 year was reasonable, but longer than that would make it impossible for people to earn a living after leaving a job, and a corporation can't just make it impossible for people to work for five years.
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Maybe, maybe not. The court may find those terms too broad. For example, I was once asked to sign a non-compete agreement that would preclude me from working for the clients, competitors of the clients, and any potential client the agency talked to for a period of five years after leaving the agency (I refused to sign). A knowledgeable person assured me that it would never stand up in court because the time was too lengthy (5 years)...the courts had determined that 6 months to 1 year was reasonable, but longer than that would make it impossible for people to earn a living after leaving a job, and a corporation can't just make it impossible for people to work for five years.
It would be good then to hear a professional and legally backed up opinion from SS or any other big agency regarding the release situation.
I am very well aware that especially SS will not be able to say anything regarding this case in particular, but it would be great if they could jump in and shed some light on the legal situation regarding Model releases in general.
Beyond Mr. Resnick, at least two other people in this thread claimed to have had or have problems regarding legal situations with Models. I think it is long overdue to pay more attention to this subject.
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[url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url] ([url]http://www.plainsite.org/dockets/29guzro6v/ohio-northern-district-court/forni-v-resnick-et-al/[/url])
[url]http://www.plainsite.org/dockets/download.html?id=184883944&z=0ad4dce6[/url] ([url]http://www.plainsite.org/dockets/download.html?id=184883944&z=0ad4dce6[/url])
The Amended Complaint makes it unambiguously clear that written document that was signed by Plaintiff for Defendant Resnick (referred to in the Amended Complaint as the "Resnick Document") is NOT a contract at all because it was executed AFTER the oral agreement (as alleged in the Amended Complaint) was negotiated and completely performed.
(1) the Resnick Document is not a contract;
(2) that even if the Resnick Document was a contract,
it was procured by fraud; and
(3) even if there were no fraud, the Resnick Document
is only part or a larger oral/written agreement
between the parties to that agreement.
This is what the model's lawyer is arguing about the model release.
What a big load! A written document should be given much more weight than an oral agreement which there is no proof what was said, just one persons word against another. Nobody should sign any legal document without reading it, and anything not explicitly said on paper is not guaranteed.
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Late to this conversation. Just to share, I had a similar incident a couple years back. Some of the model's shots appeared on a softcore website and the model requested I remove the entire shoot from my agencies. I explained that our contract prohibited the photographer (me) from using the photos in any disreputable fashion and that I had maintained that covenant by marketing only through reputable agencies who also prohibit such usage. She needed to go to the end user and work her way back rather than start with me to move forward through the selling and reselling, posting and reposting of her (my) images.
Fortunately it never went further.
Since then I always inform models who pose in provocative shoots that, despite my best efforts to protect their rights, in this age of infinite and immediate reproduction the only 100% effective way to protect your images is not to pose in the first place. Just ask Jennifer Lawrence.
I wish this victimized photographer well but frankly I don't think the model has an ice-cube's chance in hell in a US court as far as getting a monetary judgment against the photog.
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I wish this victimized photographer well but frankly I don't think the model has an ice-cube's chance in hell in a US court as far as getting a monetary judgment against the photog.
Yes, you are right. No rational judge would hold the photographer responsible in this case. But the poor guy has to spend money hiring a lawyer and defending himself. Very unfair.
I am very happy I don't do glamour, and the couple times I found misuses a DMCA take down notice did the job.
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If he wins, does she need to pay the suit and compensate the spendings of the tog?
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The danger is that instead of getting a judgement in court, which I agree will not likely go against the photographer, the parties agree to settle. At that point anyone who ever posed for a picture will get the idea that they can sue the photographer and get a fat check in a settlement. The flood gates open...
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My guess is that Shutterstock would not make a settlement for that very reason.
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Usually a settlement comes with a non-disclosure agreement, which means nobody will know what the settlement amount is. It's also possible some of the parties may be dismissed from the lawsuit (hopefully). I think the trouble here is that the model expressed reservations before agreeing and the photographer reassured her, then her reservations turned out to be correct. That might be a sticking point. However, the real culprits here are the buyers, who (perhaps) broke SS's terms. The lawyers may negotiate and drop the photographer and SS from the suit because they acted in good faith.
But unfortunately, once you're sued you're forced to hire an attorney and respond, which sucks. I know...I was sued last year (it had nothing to do with micro stock). It took a year and thousands in legal fees before the suit was dismissed. Good times.
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-----UPDATE----
Please visit my new thread so I can update everyone on what is happening.
"http://www.microstockgroup.com/general-stock-discussion/being-sued-by-model-for-half-a-million-dollars-in-federal-court-please-read!/"