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Author Topic: model releasing the deceased  (Read 6256 times)

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« on: October 04, 2010, 13:18 »
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Hello.

My question relates to model releases for the deceased and specifically the question of who can sign on their behalf.

Various sites and web resources seem to slightly disagree. Broadly there are 4 possible answers: Some say that the release should be signed by the "next of kin"; others say a "close relative"; others say that it should be the "heirs"; others say that it should be the "executors of the estate".

Hence my question. Clearly the "next of kin", the "heirs" and the "executors" may be different people. And there may be many close relatives (however closely close is defined).

So how to begin to decide who has ultimate priority (also potentially taking into account the possibility that the laws of the jurisdiction in which the image is finally used may also be a factor) ?

Eg - would hierarchically equivalent 2nd, 3rd, 4th etc cousins have to sign for some shared ancestor ?

Eg - suppose the "next of kin", the "heirs", the "close relatives" and the "executors" are different people. Do they all have to sign ? Who has ultimate say ?

Whilst these are obviously ultimately questions for a lawyer skilled in international rights law, I am hoping to crowd source some opinion and perhaps links here - if only so as to know what questions to ask if and when the time comes for me to talk to a lawyer.
« Last Edit: October 04, 2010, 13:21 by bunhill »


« Reply #1 on: October 04, 2010, 13:34 »
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Good question!

Say I want to upload a photo of my deceased grandfather but I am not the only grandchild. What if I signed the model release and my cousins later come to protest?

« Reply #2 on: October 04, 2010, 14:41 »
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I have also wondered about this question. I have a lot of 100+ years old pictures of my relatives. As far as I can tell, the photographers rights expire 70 years after his death in my country. But if I have to get written permission from all the living relatives, I can just put the pictures back in the drawer. My ancestors were prolific, I'm sure I have several hundred cousins who are direct ascendents from the people in the pics. (Not counting the ones outside marriages).

« Reply #3 on: October 04, 2010, 14:52 »
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An executor acts in the best interest of the estate, they can sign stuff but it has to be within the scope of the intent of the will, if people are arguing then it becomes an asset of the estate and will be involved in the legal mess.

I would go with the strictest of the sites, some sites have very restrictive standards and if your going for a document with the proper i's and t's then go with the strictest standards. Close relatives do not inherit unless stated in the will. First the heirs, then next of kin, the executor handles distribution and legalities associated with the deceased estate, the executor can not assign rights to you that are not present in the will. If there is no will and your an only child its all yours by default. If you took the photo of grandpa you would need the signature of the heirs all of them with signing rights to use the image.

The laws in your country will fluctuate as estate law varies.

I am not a lawyer take the advice for what its worth, lol

donding

  • Think before you speak
« Reply #4 on: October 04, 2010, 14:54 »
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I have also wondered about this question. I have a lot of 100+ years old pictures of my relatives. As far as I can tell, the photographers rights expire 70 years after his death in my country. But if I have to get written permission from all the living relatives, I can just put the pictures back in the drawer. My ancestors were prolific, I'm sure I have several hundred cousins who are direct ascendents from the people in the pics. (Not counting the ones outside marriages).
Shutterstock and Bigstock will accept them as long as your have a property release showing you are the owner of the pictures. iStock and Dreamstime require both property release as well as model release signed by next of kin. I'm referring to photo's from the 1800's, not recent ones. You can also submit them under editorial at the sites that accept them as such and not have to worry about it.

« Reply #5 on: October 04, 2010, 15:03 »
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If you took the photo of grandpa you would need the signature of the heirs all of them with signing rights to use the image.

it is more like great great grandpa, so 2-300 signatures; that's just too much work. I think Dondings suggestion about editorial sounds good.

BTW: Who signs the PR? Me? I have no proof of ownership, it is a family heirloom that happened to fall my way. Wills are not common here, we usually split things evenly between all the heirs. No lawyers get involved. 

donding

  • Think before you speak
« Reply #6 on: October 04, 2010, 15:08 »
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If you took the photo of grandpa you would need the signature of the heirs all of them with signing rights to use the image.

it is more like great great grandpa, so 2-300 signatures; that's just too much work. I think Dondings suggestion about editorial sounds good.

BTW: Who signs the PR? Me? I have no proof of ownership, it is a family heirloom that happened to fall my way. Wills are not common here, we usually split things evenly between all the heirs. No lawyers get involved. 

You'd sign the property release since it is in your possession. Really it is out of copyright being over a 100 years old, but they still require that stuff. All they gotta do is look at the photo to tell it is from the 1800's.

« Reply #7 on: October 04, 2010, 18:00 »
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This topic is just another example that lawyers control sites. I'd like to ask a lawyer where has there been a lawsuit brought by heirs over a 100 year old picture. In my experience heirs can never identify pictures just 2 or 3 generations old of their ancestors let alone anyone else. That's why there are so many old portraits in the antique shops and flea markets.

« Reply #8 on: October 04, 2010, 18:45 »
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This topic is just another example that lawyers control sites. I'd like to ask a lawyer where has there been a lawsuit brought by heirs over a 100 year old picture.

My question was not about 100 years old pictures.  It was a practical question about who can model release the deceased :) I was thinking about the much more recently deceased when I asked the question.

But since we are also talking about old photographs - is there some cut off meaning that photographs taken before some date do not need to be model released (or some period of time after a person has died) ? I do see old stuff from various stock sites which is available to licence either RF or RM (apparently released - not editorial) and I cannot believe that all of the surviving relatives have signed.

(Focusing on model releases here if possible rather than property releases or issues of copyright).
« Last Edit: October 04, 2010, 18:47 by bunhill »

donding

  • Think before you speak
« Reply #9 on: October 04, 2010, 18:52 »
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But since we are also talking about old photographs - is there some cut off meaning that photographs taken before some date do not need to be model released (or some period of time after a person has died) ? I do see old stuff from various stock sites which is available to licence either RF or RM (apparently released - not editorial) and I cannot believe that all of the surviving relatives have signed.

(Focusing on model releases here if possible rather than property releases or issues of copyright).



Shutterstock and Bigstock will accept them as long as your have a property release showing you are the owner of the pictures. iStock and Dreamstime require both property release as well as model release signed by next of kin. I'm referring to photo's from the 1800's, not recent ones. You can also submit them under editorial at the sites that accept them as such and not have to worry about it.

If they are 100 year old photos the copyright would be expired, but the stock agencies still require a property release and some require model releases if you don't submit as editorial.

« Reply #10 on: October 04, 2010, 18:56 »
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Thanks. Yes I am only asking about model releases.

Not about property releases or copyright issues.

donding

  • Think before you speak
« Reply #11 on: October 04, 2010, 19:03 »
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Thanks. Yes I am only asking about model releases.

Not about property releases or copyright issues.

If it is a recent photo and there isn't an estate involved and the person is recognizable in the picture and you are the only child, then you'd sign it as a child or his spouse would if still living. If there are more than one of you then all children or spouse need to sign it. It depends on how old the photo is.

« Reply #12 on: October 04, 2010, 19:12 »
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It depends on how old the photo is.

Why does it depend how old the photo is ? Is there a cut off period with respect to model releases ?

donding

  • Think before you speak
« Reply #13 on: October 04, 2010, 19:38 »
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I'm referring to who would sign the model release based on the age of the photo. I'm assuming you are related to the individual. I also assume you took the photo. If you did not take the photo then you need a property release as well as a model release.

The cut off period for a model release would be determined by the stock agency. They have the right to request a model release on a photo that is 10 yrs old or 100 yrs old. So I guess the answer to your question would be no there is no cutoff date for a model release.

« Reply #14 on: October 04, 2010, 19:43 »
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Thanks

10 Print "So then I'm back to my original question really"
20 Goto 10

:)

« Reply #15 on: October 04, 2010, 21:40 »
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FRom what I understand of this. The executor of the estate is the only one who can sign a model telease of someone who has died after 1923. If it was a photograph that was taken before 1923 it has now passed into the public domain.

Many images are protected by copyright, the same as textual works, for a set period of time. For information on when art images would customarily fall out of copyright and enter the public domain, visit Cornell University's Copyright Term and the Public Domain in the United States.

Art work "published" (made available for public viewing) before 1923 is generally now in the public domain. Even digital reproductions of these works (though the reproducers may claim copyright on their reproductions) can be considered in the public domain to the extent that the reproduction is true to the original and cannot claim any originality. This would be particularly true of photographs of paintings, or digital renderings thereof.

Some significant challenges arise in determining the public domain status of a work:

a) Photographs of scupture or architecture, where the photographer could claim originality in the photo itself, may still be copyrighted if the photograph was published after 1923. Library staff can provide you with more information on this. Only an attorney can offer legal advice, however.

b) Some works created prior to 1923 were never published (made available for public viewing) until recently. These could include, for example, photographs from a private collection never released to the general public prior to digitization. Further investigation with the owning institution may be needed to determine when the images were first "published" for copyright purposes.

RacePhoto

« Reply #16 on: October 05, 2010, 00:49 »
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FRom what I understand of this. The executor of the estate is the only one who can sign a model telease of someone who has died after 1923. If it was a photograph that was taken before 1923 it has now passed into the public domain.

Many images are protected by copyright, the same as textual works, for a set period of time. For information on when art images would customarily fall out of copyright and enter the public domain, visit Cornell University's Copyright Term and the Public Domain in the United States.

Art work "published" (made available for public viewing) before 1923 is generally now in the public domain. Even digital reproductions of these works (though the reproducers may claim copyright on their reproductions) can be considered in the public domain to the extent that the reproduction is true to the original and cannot claim any originality. This would be particularly true of photographs of paintings, or digital renderings thereof.

Some significant challenges arise in determining the public domain status of a work:

a) Photographs of scupture or architecture, where the photographer could claim originality in the photo itself, may still be copyrighted if the photograph was published after 1923. Library staff can provide you with more information on this. Only an attorney can offer legal advice, however.

b) Some works created prior to 1923 were never published (made available for public viewing) until recently. These could include, for example, photographs from a private collection never released to the general public prior to digitization. Further investigation with the owning institution may be needed to determine when the images were first "published" for copyright purposes.


Right, right, more right...

Only small disagreement would be that "Art work "published" (made available for public viewing) before 1923 is generally now in the public domain." Generally? Can you give an example where the law saying ALL works published before 1923 are now out of copyright, is not true?

You last line about things which were not "published" may now be released to the public and be covered, is really a complicated issue, however there is a nice clean answer. Works created before 1890 which is 120 from the year of creation for an unpublished work.

Last of all, not a disagreement either, the agencies make up their own rules, sometimes on the fly. They require releases for things that don't need releases, like property releases for buildings before 1990, which don't require them. (stupid but true) Also for old photo postcards (just one example) from before 1923, which are Public Domain. But they still ask for property release or claim there's a model release needed. No There Is Not!

Cornell Link, since you mentioned it: http://copyright.cornell.edu/resources/publicdomain.cfm

For the OP, throwing out a vague question with multiple correct answers and expecting some reasonable solution, isn't going to work. Neither is arguing whenever someone suggests a possible answer, by changing the situation, specifics and conditions.

Here's the answer and I can guarantee it's right.

It depends on who owns the rights, and if there is an executor or if there is an estate and who owns the image as well as who took the image.

See what I'm trying to say? It's impossible to answer your question. Each situation and image is an individual problem. That's not saying that if you have a box of photos, that they can't all be controlled and released under the same conditions and legally be released to an agency. I'm saying that depending on the subject, the photographer, the date, the ownership, and probably some other things. You can't just say who needs to sign a release for a shot of my deceased relatives, and get a reasonable, simple answer. :D

Lets start at the easy beginning and you can work from there. Who owns the photographs? If it's a group ownership, you have a can of worms. If it's just you, there's some hope. Is there an executor who controls the estate? If yes, there you go, they can release the images, if not, you have to find out who has the legal authority over the images. Did the will mention the photos? If not they might be owned by whoever holds them. Who legally owns the photos in question, would be a great place to start.

That's your second part of the answer. It depends on who is legally responsible and has the right to grand the release. It could be any of the many first solutions listed, it may be someone else. There's isn't one easy, straight answer, and that's the problem.

Want one that's just as much fun and probably impossible to answer? I have a photo of myself, that a professional photographer took about 50 years ago. I have the original and the hand colored framed version. He's dead. His studio closed 40 years ago. I own the photo and it's myself. Who owns the rights? Or like the situation here, can I legally sign a release for it, and submit it to a stock agency, since it's me?


RacePhoto

« Reply #17 on: October 05, 2010, 00:51 »
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Very short answer to your dilemma.


My question relates to model releases for the deceased and specifically the question of who can sign on their behalf.


It Depends.

ShadySue

« Reply #18 on: October 05, 2010, 02:20 »
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FRom what I understand of this. The executor of the estate is the only one who can sign a model telease of someone who has died after 1923. If it was a photograph that was taken before 1923 it has now passed into the public domain. <snip more info>
Best be totally clear you're talking about the US only.

« Reply #19 on: October 05, 2010, 04:14 »
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Want one that's just as much fun and probably impossible to answer? I have a photo of myself, that a professional photographer took about 50 years ago. I have the original and the hand colored framed version. He's dead. His studio closed 40 years ago. I own the photo and it's myself. Who owns the rights? Or like the situation here, can I legally sign a release for it, and submit it to a stock agency, since it's me?

You could sign a model release yourself assuming you are not posting from the beyond.

Ownership of the rights to represent the image would be a separate issue AFAIK.

For the OP, throwing out a vague question with multiple correct answers and expecting some reasonable solution, isn't going to work. Neither is arguing whenever someone suggests a possible answer, by changing the situation, specifics and conditions.

Those seemingly potentially contradictory multiple correct answers about model releases are from the advice given to contributors at various stock sites.

My intention in starting this thread is to open a useful discussion focused as tightly as possible on the subject of model releasing the deceased. My sense is that the rights to represent images we did not take ourselves is a related but different question. If not answers then a good result would be, at least, some of the right questions.

Last of all, not a disagreement either, the agencies make up their own rules, sometimes on the fly. They require releases for things that don't need releases, like property releases for buildings before 1990, which don't require them. (stupid but true) Also for old photo postcards (just one example) from before 1923, which are Public Domain.

Surely for a different thread, but I believe there is sometimes confusion around 'property releasing' an old image (the object) vs 'property releasing' what is shown in the image. IE an old postcard is also an object.

RacePhoto

« Reply #20 on: October 05, 2010, 08:54 »
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Those seemingly potentially contradictory multiple correct answers about model releases are from the advice given to contributors at various stock sites.

My intention in starting this thread is to open a useful discussion focused as tightly as possible on the subject of model releasing the deceased. My sense is that the rights to represent images we did not take ourselves is a related but different question. If not answers then a good result would be, at least, some of the right questions.

Surely for a different thread, but I believe there is sometimes confusion around 'property releasing' an old image (the object) vs 'property releasing' what is shown in the image. IE an old postcard is also an object.

Absolutely true on all accounts. I like the old images as property subject and it could relate to yours, if there's a posed shot from a photographer in the batch.

You might have also added, multiple wrong answers from contributors and from agencies selling our images.  ;D

A real mess isn't it? But interesting if you just start at the beginning and go step by step with one kind of image, from one source, and with only one estate, and then divine the results in hope that you will get to a reasonable conclusion. If you have professional images, mixed with shots from Uncle Melvin and some taken by Aunt Martha, they could all have different legal issues and solutions.

I honestly think the easiest starting point for you and anyone else with the similar situation would be, asking yourself, "who owns the images". If your hypothetical was that multiple relatives own them, somehow, and there's no executor to control usage, it's complicated. However if you have possession and ownership yourself, it could be much easier, because you can write yourself a property release. :)

Trying to get every living relative to sign a release would be a real headache and probably impossible. I'd go with, whoever owns the images and has possession, as a good starting point. Funny things happen when someone sees money and wants a piece of the action. Very add things!

Maybe I should go back to school and get a law degree and specialize in copyright. Sounds like I could be busy for the rest of my life. First thing I'd have to do was set up a flat rate contingency fee for chasing down people violating rights on the web. I know that most of the time it's not worth chasing and the people "borrowing" images are mostly uneducated about the law, and mean no harm. Most will simply remove the image when notified. But when someone misuses a licensed image, say buys a Sub. and then uses it for a commercial product or something where an extended license was required, the artist might get $20 more. So at 20% I'd be getting $4 for chasing down and collecting that $20. Can I hear and Oh Wow for that one?  :-\

ps Ignorance of the law is no excuse. Someone stealing an image off the web and using it legally has no protection. But usually a cease and desist request resolves the problem and there's no reason to go further.

The microstock sites are more often overboard on requirements and ask for things they don't need. Keep this in mind. One of my best Micro sellers is Editorial and there's no way that anyone who ever bought it, is using it editorial, news or education. How's that? Well SS has it licensed properly, I uploaded it properly, and it's marketed correctly. The final user is the one responsible for correct usage! And oh, one other small detail, it's from the 1890s and shouldn't be listed at editorial in the first place! No matter, the end user would be responsible should anyone claim some improper usage. The agency and myself have a CYA policy in place.

Then spin around and ask yourself the easiest questions about your family photos. Who owns them? (not the subjects but, as you pointed out, the physical photos)

Good luck, it's always interesting.

« Reply #21 on: October 05, 2010, 09:51 »
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From what I understand of this. The executor of the estate is the only one who can sign a model release of someone ...

Thanks for that. This is the route which I am likely going to explore.

So I am beginning to work out the questions I will need to get answers to. I am beginning to work out what I will want a lawyer to establish for me. For example:

  • I am not clear whether (in this jurisdiction) an executor remains an executor after an estate has been settled.
  • I have no idea where to go if the executor is also deceased.
  • I wonder how to date a model release when the exact date the image was made is not known.
  • I wonder whether there needs to be a different release for each photograph in a collection of images of the same person taken on different unknown dates.

See this is partly about trying to shape the right questions to even ask.


 

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