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Author Topic: model might try to sue me  (Read 26310 times)

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« Reply #150 on: December 10, 2014, 11:58 »
+2
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.


ShadySue

  • There is a crack in everything
« Reply #151 on: December 10, 2014, 12:25 »
0
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.

« Reply #152 on: December 10, 2014, 12:59 »
0
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?

« Reply #153 on: December 10, 2014, 13:50 »
0
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.

« Reply #154 on: December 10, 2014, 14:28 »
0
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. 

« Reply #155 on: December 10, 2014, 16:09 »
0
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


Quote
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.


Quote
(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.

« Reply #156 on: December 10, 2014, 16:10 »
0
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.

« Reply #157 on: December 10, 2014, 16:21 »
0
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)

Tror

« Reply #158 on: December 10, 2014, 16:24 »
+2
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)

« Reply #159 on: December 10, 2014, 17:01 »
0
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. 
« Last Edit: December 10, 2014, 17:13 by tickstock »

« Reply #160 on: December 10, 2014, 17:31 »
+3
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.

Shelma1

« Reply #161 on: December 10, 2014, 18:01 »
+3
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.

« Reply #162 on: December 10, 2014, 19:36 »
+2
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>> newbielink:http://ia802500.us.archive.org/0/items/gov.uscourts.ohnd.209347/gov.uscourts.ohnd.209347.2.1.pdf [nonactive]

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 >> newbielink:https://www.facebook.com/nikkie.nicole.18 [nonactive]
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 OShea, 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>> newbielink: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 [nonactive]
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 Plaintiffs 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 Resnicks 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 Resnicks 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.
« Last Edit: December 10, 2014, 20:04 by f0l3y0li3 »

w7lwi

  • Those that don't stand up to evil enable evil.
« Reply #163 on: December 10, 2014, 19:37 »
+3
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.

« Reply #164 on: December 10, 2014, 20:09 »
+1
Quote
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."

« Reply #165 on: December 11, 2014, 00:46 »
+3
The whole case seems a little bit too thin to me, but let's see what the court decision will be.

gillian vann

  • *Gillian*
« Reply #166 on: December 11, 2014, 01:45 »
+1
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.


Tror

« Reply #167 on: December 11, 2014, 06:31 »
0
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....
« Last Edit: December 11, 2014, 06:35 by Tror »

stockuser

« Reply #168 on: December 11, 2014, 07:01 »
+1
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!

ShadySue

  • There is a crack in everything
« Reply #169 on: December 11, 2014, 07:03 »
+1
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 Photographers heirs, legal representatives and assigns, and all persons acting under the Photographers 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.

Tror

« Reply #170 on: December 11, 2014, 07:16 »
0
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 Photographers heirs, legal representatives and assigns, and all persons acting under the Photographers 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?

Shelma1

« Reply #171 on: December 11, 2014, 07:16 »
+3
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.

Tror

« Reply #172 on: December 11, 2014, 07:28 »
+3
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.

« Reply #173 on: December 11, 2014, 13:16 »
+3
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


Quote
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.


Quote
(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.   

« Reply #174 on: December 11, 2014, 17:54 »
+3
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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