... it's an employment contract and therefore can be written in many different ways with varying stipulations, the problem is people like you read a few guidelines given out by stock agencies and get the wrong end of the stick and think that info is law, and what's worse is that as a reviewer on a microstock agency you're actually advising people on these things!!!!

A model release is not nor ever has been an Employment Contract.  It is astonishing to hear that from anyone who has any experience with law or the photography industry. 

A model release is not nor ever has been an Employment Contract.  It is astonishing to hear that from anyone who has any experience with law or the photography industry. 

Wow you better let all the legal minds that compile the law dictionaries know then  

Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary page 471 (5th ed. 1979).

RT is absolutely right.

Model release is an employment contract between you and model.
Property release is an employment contract between you and property.
Model release for minor - you'd better never use it in civilized country!

(I was told couple times that even for obvious ones I have to add  )

Quote from: RT on March 11, 2010, 09:12

Wow you better let all the legal minds that compile the law dictionaries know then  

Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary page 471 (5th ed. 1979).

Again, that is not, nor has it been a standard that applies to model releases.  Just because you empty the bins at a law firm does not make you a legal scholar.  

The industry never thought of a release as an employment contract and never would.  Model releases are specifically intended to outline the rights being granted to the photographer and his reps for licensing purposes.  The subject/model is pre-approving the designated future uses (usually anything and everything in the case of stock) and releasing the licensor and licensee from liability.  It is titled very aptly - it is a release of rights and liability, plain and simple.

It is more akin to a licensing or royalty agreement than any kind of employment contract.  In fact, several modeling agencies create contract documents that specifically state that models are not employees. Similarly, when I shoot an assignment for a magazine or advertiser, I am not an employee nor do I sell my photography to them.  I license the use of my photographic product, usually for a fixed period of time and specified usage.

Seriously, if you do not understand this distinction you might want to reconsider your activities in both law and photography--at the very least refrain from littering discussion forums with misinformation.

I'll refrain from any personal insults because I don't want to come down to your level.

Apart from the fact your definition of a model release and what it does is wrong, neither you or the industry can change or make legal definitions, and whether you or anyone in the industry who chooses not to accept that a model release forms part of an employment contract does not detract from the fact that it does.

As I tried to explain earlier there is no specific legal definition of a model release, however you seem to know otherwise so please rather than give your opinion and insults share with us your knowledge of the law and prove me wrong, show me where in law a model release is defined.

I'm at a complete loss at to why you have such a problem accepting this, or why you want to make a big issue over it, it's no big deal really 'model release' is just a generic term used for the form.

As for this: "Similarly, when I shoot an assignment for a magazine or advertiser, I am not an employee nor do I sell my photography to them.  I license the use of my photographic product, usually for a fixed period of time and specified usage."
Why did you bring that up in the discussion over a model release?  Interesting though that even then you don't know what you're doing.

Out of interest I notice your username is new here and you've only made two posts on this subject, you wouldn't happen to be someone already registered here who's trying to pretend to be another person would you, I only ask because you've the same characteristics i.e. lack of knowledge and eagerness to make everyone think you're an experienced photographer despite your own trip ups. I wonder who you could be

Let me know when you've found that law.






 

Quote from: FD-amateur on March 11, 2010, 09:08

Correct. If it would be an employment contract, in a collectivist country like Belgium you would have to follow the vast social security legislation and associated red tape pertaining to hiring employees. One of the smaller consequences is that you as an employer are responsible for all accidents on the way going to and returning from "work".

You might want to check into that statement, I think you'll probably find there's a minimum specified number of hours a week an employee has to work for you before that and other considerations like sick and holiday pay become applicable.

Correct, that's what I meant by the social security and social laws' red tape. There is also a minimum wage. Perhaps the UK labour laws are more liberal after Thatcher, but a few continental countries still have very tough employment laws. You certainly don't want to hire a model there as an employee. Laws are so though that for house personnel and job students, they came up with a different arrangement. A (semi-)professional model (in Belgium) is hired, as a far as I know and by the commercial model agencies, as a free-lancer, performer, artist or consultant. The person is not employed but rather her services are paid by an all-inclusive fee, and she has to take care of her own insurance and her own taxes etc... The legal status is totally different and I checked that with a friend that runs a (professional) agency in Antwerp. Of course, laws in other countries may be totally different.

If you want to hire your models under an employer-employee contract, you will have your reasons. Perhaps that you have a much higher volume than a modest microstocker, or perhaps you work very regularly with the same models.

But a simple minimal release as required by the agencies is not a contract in the usual sense, as there are no obligations from both parties mentioned. It is just an authorization from the model, a promise that it will safeguard the photographer and his licensees from liability concerning (commercial) use and alterations, and a recognition that the photographer has the copyright. If it were a contract, the obligations of both parties would be mentioned (like to show up on time and perform as agreed) and each party would have a copy. In principle, a Release just comes in one copy: a simple release/authorization/recognition from the model to the photographer. The photographer promises nothing, not even to use the photos. Protection from slanderous use is not even required (although safer).

Whatever your compensation or contract with the model might be (TFP, free-lance with an independent model-contractor, employee), it is independent from the release itself. It's not the agent's business. I really hate to disagree with you respectfully on this one.

FTR there is no legal definition for 'model release' anywhere in the world, it is a contract between two parties. When you shoot a model they are in your employ and under your direction, if they have an accident it is you they will sue under employment law, if they damage any property belonging to a third party it would be you the employer who would be liable. Like it or not it's an employment contract.

First of all, it's not because it's not a standard thing that a release can't be valid. You can agree/allow anything as long as it's not illegal nor immoral. A Hire to Kill contract can't be used in court if the killer runs away with the money. You can also argue that our case is a cooperation between two artists/independents that work together to produce a result. A good model sometimes takes the lead in free posing or insists on some concepts to be done. In that case the photographer just follows.

Correct me if I'm wrong, but I guess that what you warn for is that any release not intended as an employment contract can and will be deemed like that in a labour court in case an accident happens to the model. I know this happened (in Belgium and in the construction trade) in case of fake-subcontractors deemed employees of the main contractor, that wanted to avoid the high taxes on employment. A key element was the sub-ordinance of the employee vs the independence of a subcontractor. So the verdict will also depend on whether you use a model occasionally or very regularly. A clown with a daily act in a theme park will probably be deemed an employee, while a guest or occasional clown will not.

Thanks for cautioning against this.

Actually that language comes from a litigator in the rights & clearances department of one of the largest law firms in the world--not from myself.  They confirm what countless people who actually work in this industry practice every day.  And yes, I work in the industry as a professional fashion and commercial photographer and work with model releases on a constant basis.  And no, I don't need to create a double identity to contrast your intellectual errors.  This user name is the same I use on iStock--and after all, isn't this what the thread is all about?

And to remind...you made the statement that model releases are 'employment contracts' an assertion without attribution.  I think that the burden is on you to site a case where a MR equals a employment contract, not me. 

Your emphatic stance almost make me think that you are trying to bring up the argument wether models are employees.  More of an argument can be made in this avenue and debate has been made on either side.  But, and this is the important part, a model release is NOT the document that has any bearing on this.  If you have an ounce of legal experience you should realize this salient difference.

I must apologise I had searched for you on google with no avail and because of the lack of knowledge you displayed in your previous posts and the way you versed you replies I came to the conclusion you were someone else who also often gives opinions on things they know nothing about. But I see now that you are indeed a different person and have some nice photos on iStock that would indicate you've been shooting models for a while, which judging by your previous comments surprised me.

Now you say that this statement:

Model releases are specifically intended to outline the rights being granted to the photographer and his reps for licensing purposes.  The subject/model is pre-approving the designated future uses (usually anything and everything in the case of stock) and releasing the licensor and licensee from liability.  It is titled very aptly - it is a release of rights and liability, plain and simple.

 "comes from a litigator in the rights & clearances department of one of the largest law firms in the world" which totally surprises me, I find it hard to believe that a someone in the legal profession would make such a sweeping generalised statement and I'll explain why -
 As I mentioned earlier there is no set legal standard for a model release but there are common clauses set in the releases supplied by most agencies, the legal definition of a release is that it's a contract, whilst the releases supplied by most of the sites mention the site by name it is not a legal requirement to do so and all the sites accept a release that does does not name them individually so for now lets deal with this general release, when a model and photographer sign a release it is a contract between the model and the photographer only the contract will most likely then contain a clause that allows the assigning of rights to "his reps"  or 'assigns' as most model releases refer to them but those are clauses the "reps" are defined by law as having signed or formed the contract.
 The model does not "pre-approve the designated future uses" because the model at the time of release does not generally know what the future uses are and the possible uses are not designated on the release instead there are some suggested possible uses normally including the phrase "amongst others" which is deliberately added exactly because the future uses are not designated.
 But the biggest surprise in that statement is "...releasing the licensor and licensee from liability" no it doesn't it only releases them from certain liability claims as listed in the clauses contained in the contract, which is why as I said earlier I would be very surprised that someone in the legal profession would make such a general definition of a release.

Now onto the 'model release' itself, as i stated earlier it is a contract that for simplicity the industry has named as a 'model release' which is fine you can call a contract whatever you want, however whilst this contract does indeed contain release clauses it also contain clauses relating to property, identity, data protection,privacy & payment so unknowingly you see it is so much more than just a "release of rights - plain and simple"

Now onto the employment side of things. Do you understand that when you shoot a model you are employing that person? or am I right in assuming that you're having trouble with understanding that, which I could understand because employment law is one of the most complex things there is. You need to understand that you can employ someone without that person being an 'employee' for the purposes of employment law and employee rights.
The most basic definition of employing someone is when you control the work of another, to put that into the context of shooting models, when you shoot a model it is you the photographer that directs/controls what that model does for the purpose of obtaining the product in this case the photo (I can see you know how to shoot a model and what's involved so I won't go into anymore technicalities) and in some shape or form you then reward that model be it financial, tfp, bananas or whatever and at some point be it written or verbal you have made a contract with the model, in the case of licensing the photos for commercial stock you get the model to sign a legal contract (model release) and that contract relates to the period of time and work the model did (the shoot) which by definition of employment means it would be defined by law as being (or part of) a contract of employment. Now I'm not going to insult you because you clearly understand why you need a release and the whole point of the exercise in getting them to sign one but I still don't understand why you can't accept that it is more than just a simple release.

Law is defined by interpretation or stated cases, there are no stated cases that I'm aware of that legally define a model release, the generic model release issued by most agencies is simplified to cover most worldwide usage but it is not a definitive contract as each country has varying laws and intricacies, my interpretation is that it forms the basis of an employment contract for the reason I've explained above, if you can find any legal definitions to defy that then please do so.

Do you understand that when you shoot a model you are employing that person? or am I right in assuming that you're having trouble with understanding that, which I could understand because employment law is one of the most complex things there is.

I figured that you were trying to fold the issues of modeling and employment into the issue of model releases.  I fear that it shows possibly too much experience with the law and not enough experience dealing with models.  Models can be 'hired' with or without a release.  Model releases exist for many situations where there is no issue of employment.  Any attempt to cement those issue together is folly.

This grandstanding has taken this thread too far away from the OP's original question and thrown too much misinformation into the air.  I'm sticking to the issues with iS going forward.

Hey FD we must have crossed over posts, were going off topic a bit here but where did you get the information that a contract has to mention obligations of both parties and that there has to be two copies?

From my brother on Yahoo Messenger having his daily lunch chat. He studied law but he is a politician now. So I don't know if he can be trusted. His message was also that the existence of an employer-employee relation or rather a freelancer/contractor relation between model and photographer would have to be tested in a court. One element is sub-ordinance/authority, second is regularity or frequency. I can image that a judge would rule for freelance/sub-contractor status if you don't own a professional studio and if you infrequently shoot models, and in favor of employee if you are a full-time model photographer with an established studio. But this is just guesswork.

A contract can be anything you want, it doesn't have to be written it can be verbal, it doesn't have to mention obligations of both sides and there doesn't have to be two copies either, the things you mention would indeed make the contract more watertight but they're certainly not a must have as far as the law is concerned, same goes for witness signatures.

Yes but the burden of proof in case of a verbal contract renders it useless in case of a dispute. It's one word against another.

Anyways bringing up the employee point was useful, even if off-topic, since I didn't find it at any forum.