Sunday, April 22, 2012

Model Releases and Watermarking

Here's an email thread regarding the age-old question of model releases. I threw in the topic of watermarking since I feel it's on the same page.

Q: Do I need to bring a model release for the models at the workshop?

A: As you'll find via working with modeling agencies and their models, there are no releases to sign. The unsaid rule is that you do not profit monetarily directly from the sale of the images. Self-promotional purposes like magazine submissions and your own websites are fair game. In fact the models will almost always appreciate the additional press/publicity/exposure from magazine submissions.

You can bring one for her to sign. I'll have to read through it first. In the event that the magazines ask for signatures, that should be the time to turn around and ask them to sign the release because it's the magazine's release (and not your self-worded and often "skewing in favor of the photographer" release). But signing paperwork during or immediately after test shoots is usually a red flag to models... good models don't work with photographers that request release signatures for shoots.

Q: Understood.

When you say “signing paperwork during or immediately after test shoots is usually a red flag to models... good models don't work with photographers that request release signatures for shoots”, you are referring to agency models, right? This is because their agency has arranged the test shoot and my agreement is with the agency, true?

Freelance models I would never shoot without a release.

A: Correct. The agreement is with the agency. You don't need the model's permission for that arrangement.

But when I shoot agency models outside the agency, I still follow the same guidelines. The way I see it at the end of the day, no single picture/set/shoot is critical to me. Out of 3+ years of shooting, I have only had 1 model ever say, "Hey can you untag those pictures of me?" No model has ever asked me to take the images down. And if they did, I would do it in a heartbeat. Done. No questions asked. Those images aren't even relevant anymore. There simply isn't any point arguing over the rights to images. They aren't worth anything. If they were, don't you think I'd be selling them? And certainly no model I know will go to that extent (to fight over rights to images). But occasionally I see those discussions on MM and I laugh to myself. If you're sweating any single picture/set/shoot, you aren't shooting enough. And you're definitely not shooting with the right models.

How really are you protecting yourself with those releases? Chances are that the model doesn't have wherewithal to create monetary gain with your images. They are models after all. Not MBAs. And if she did then shame on you for not being able to sell them first. And even if that happened, how much money are we talking here? $100? $500? Am I going to go to court for $500? Do I really think anyone is going to pay $500 for a single image? Or even a series of images from 1 model? Nope. And even if you did get a signature on a release, that doesn't stop the model from doing it anyway. Then what are you going to do??? Take her to court? Send a Cease and Desist letter? Sue the magazine/company that paid her? Makes no sense if you ask me. Unless of course I'm missing something here, which is totally open to debate. But every which way from Sunday I play this out in my head says that the releases (agency or not) simply aren't worth the trouble.

I have printed model releases. Haven't used them in years.

It's the same argument with watermarking. People think too highly of themselves when they think that someone's going to steal their image and profit from it. It happens, yes. Occasionally. But rarely. I haven't watermarked anything in years and no one has stolen from me. You'd think that maybe my images would be good enough to steal? Sadly, it hasn't happened yet. Maybe I think too highly of myself? LOL! But again, even if it did happen, how much are we talking about? A couple hundred? Certainly not enough for me to fight over because I am busy with much larger contracts.

But you argue, "That's not the point. It's the principle that matters!" Wrong. This is a business. Unless for you it's a hobby and then you can argue and sue until the cows come home. But as businesspeople we pick and choose our battles. Why fight the ones that aren't worth fighting? And why lump yourself into the "watermarked" group when it consistently consists of amateur photographers? Interestingly, I once had a lively discussion about watermarking with the department head of the Photography School at NYFA. In front of an entire class of students at that! He argued that the one great benefit for watermarking images is that when art directors and prospective clients are sifting through images (deciding on photographers for their campaigns), they can easily identify your images and subsequently contact and hire you. This is because during the decision making process photographers' images are often downloaded from the internet, printed, and then passed around the room for review.

But when asked if he watermarked his own images, he promptly replied, "No".

When asked why not? Kind of sheepishly he said, "Because it looks amateurish".

Oh the irony.

For the record, agency models like Kate would be skeptical to sign a release even if the shoot were booked outside the agency. It throws the red flag that, "This photographer isn't seasoned. He probably doesn't know what he's doing. Because I've NEVER signed paperwork with any photographer I've tested with through the agency". I don't want to offend anyone here but typically releases and watermarks are for amateur photographers.

I posted my answer to the model release question on Facebook a while back and got this response from an agency model,

Thank god [you don't use one]. I think they're weird for tests, will usually make me not work with the photographer, and if for some reason I do, it makes me nervous while shooting. Its like having a pre-nup. If we really need one, we shouldnt be together.

Hell, one time I was at Malibu shooting with a model. And I happened to run into another model I had previously tested. She was there with another photographer on their shoot. We said hi. They went on their merry way. 10 minutes later she comes crying to me and says "OMG, you won't believe what just happened. The photographer was being all demanding and asking me to sign this release and the release was all weird saying that he had all the rights and could do anything he wanted with it. I didn't want to sign it. I mean what if it winds up on the cover of a porno? It totally ruined the mojo for the shoot. So I just said "I don't think I can do this then" and walked off.

True story.

Funny thing is that I think this highlights the differences between amateur photographers and industry models. Amateur photographers are completely out of touch with how they are viewed by their models. They think that they need all this paperwork and watermarking to protect themselves because they're typically older, better educated, and simply trying to limit their liabilities by making sure they don't get blindsided by a potential legal issue. But in reality all they are doing is pigeon-holing themselves into the weekend-warrior/amateur-hour crowd. Because the good models might refuse to test with you based upon this fact alone.

Does that mean I don't believe in Limited Liability Companies (LLC), business insurance, contracts, etc.? Of course not. But there's a time and a place for risk management. The problem with all the watermarks and the model releases is that you're preemptively striking at... NOTHING. Think about it. You actually have to have something to lose before you can actually lose anything.

And most of us aren't good enough where we actually have anything to lose. I challenge any of you to try and sell my images. But don't blame me if you wind up wasting hours for no monetary reward!

Now if you're talking about paid tests. That's a TOTALLY different story. There should be contract AND release. And it sounds like you've got that part down pat. So good on you. You do need to protect yourself when there is monetary exchange.

Q: Okay, but what if your image is stolen to advertise an event? Like a concert. And that concert stands to make a lot of money?

A: Just send a simple C&D and be done with it. Few people have the time and money to fight over this kind of stuff.

Or... you could look at it this way. This is a fantastic opportunity to make some money! If that event rakes in tremendous profits, you can actually sue (with enough to pay lawyer fees) and potentially make tons of money from it. A lot more than you would if they hadn't stolen your image.

I'd say it's a win! :)

You guys should check out The Stolen Scream (above) where a photo was stolen and reprinted and distributed around the world multiple-times over without the consent of the photographer. The photographer's conclusion however is that without the picture being stolen, he'd still be a nobody.


  1. Silly. What happens when you sell an image of a model to a company and then the model decides to sue that company? Actually do you sell at all? What companies buy from you if they are aware that you don't have clear and legal arrangements with the models?

    1. I never sell my unpaid test images. It's part of the unsaid agreement with modeling agencies. Unless of course you want to be blacklisted. And no company would buy from you unless they knew you had the rights. But I don't do stock photography.

  2. So without model release the model is protected from porno? And that is professional and good for her career?

  3. Of course not. But if the photographer wants to sell pictures to porno companies I don't think the release would stop him anyway (especially not one written in the photographer's favor). The release would have to be pretty specific about what the photographer is and isn't allowed to use the pictures for. But based upon your argument the photographer would need to provide an ironclad release that favors the model in order to prevent a situation like the porno submission. Such a release might require the model's written consent for each upload/submission/sale on a case-by-case basis.

    No photographer wants to deal with that.

    Which is why most photographers ask models to waive all rights to the images in the model release. But that's a no-no. For unpaid tests where there is no monetary exchange, the parties involved each own a fraction of the profits of that image. The photographer should not be waiving the model's rights to those claims.

    1. So you are claiming that hundreds of thousands of professional photographers who would never even shoot a model without a release are amateurs just because they don't do free model testing? And all this just because some legally incompetent girls owned by their agencies dream of making a fortune with their nude portfolios and were told it is scary to sign a release.

      Have you ever thought of a situation like the link given with a model shot by you and your pictures? How exactly are you going to help the model when you don't even have the full rights on the photo? And how is she going to protect herself? Her professional career can so simply be over with a single uncontrollable viral Internet abuse which you won't even be able to track. And all this "for a couple hundred" and because she thought she is safe from abuse without signing a release.

      As a professional you should inform yourself that all legal model releases include a clause that pornographic and defamatory context is not allowed. And this release serves for models protection too. Without this - you can neither protect your images, nor models' rights. And nobody would believe or really care if you call others amateurs and yourself a professional.

      As for the guy from the video - he is the same nobody as before. The only difference is that now he is robbed. People using his image will never even know his name. He can make a thousand videos like this but it will only show how stupid it is to miss a golden chance.

      In any case being somebody or having a label "pro" on your t-shirt won't save you from monthly bills. So better start asking for a signed release. Else the whole situation - shooting naked girls in a garage without legal document - is a porn by itself, no matter if the girls believe it is professional.

    2. A paid test is completely different from an unpaid test. Especially if your unpaid test is via the modeling agency.

      And honestly I don't know what to tell you. If you haven't worked with modeling agencies for unpaid testing then you won't know their MO (modus operandi). Which is fine. It is your prerogative not to shoot unpaid tests via agencies. But that's how it works for us photographers that *do* shoot or *have* shot unpaid tests for modeling agencies. If you're upset, feel free to take your issue up with them.

      In the situation above, I would help the model by sending the website a C&D letter. Because *together* the model and I have full rights to the images (assuming no one else was involved). And those rights exist *without the need of a release*. It would be up to the porno website to prove that they have the rights to the images. Because I can prove that I shot those images and that company can not prove they have proper licensing rights without documentation.

      And at the heart of the article is not that we *shouldn't* protect ourselves. It's that there is a flip side to releases and watermarks. One that most amateur photographers are blind to. Particularly that you can "nerf" yourself by being overzealous about the whole release/watermarking issue.

      And as for the guy in the video, I like the presidential candidate analogy. There are 2 candidates. One candidate will raise taxes *but* improve the economy a thousandfold. The other candidate will lower taxes but the economy will *not* improve. Strictly based upon financial sense, who should you vote for? Let's assume that you vote for the first guy. He raises your federal & state taxes to 99.99%. But lo and behold at the end of the year you are making $10MM (ten million) MORE than you did last year *after taxes*. Should you vote for him? Or should you vote for the guy that promises to lower taxes but won't change the economy. Under *that* guy, your tax rate will be lower but you might only make $10,000 more.

      Don't fight the battle only to realize that you've lost the war. Because that's what most of the amateur photographers are guilty of. They only see what they stand to lose now, versus what they stand to gain later.


  4. Coincidentally, I attended "Shoot LA" last weekend. The Editorial Director of 'Digital Photo Pro' magazine, Chris Robinson, was there. He stated that he likes watermarks on submitted images. Why? Because very often, he and others at the magazine will print out the photos submitted to them and bring those prints to meetings where everyone decides what images to include in the next issue.

    He related a story where everyone wanted a particular image for the cover. The problem was, someone had printed it out and there was nothing on the shot to identify where it came from. No one remembered who submitted it and in the end they just had to let it go.

    So, there you have it. Yet another perspective on watermarks.

  5. That's almost exactly the story I told above with the department head of photography at NYFA...

  6. My 2 cents... I agree with you 100% Charles. For me, my time is better spent securing new work, than trying to prevent or restrict anyone via contracts with the work Ive already done.

    In an industry that is built 100% on reputation ... you cant sell test images, nor, would you want to ... Id rather re-shoot an image & make it 10x better - with hired models, with an even more amazing team.

    As a side - I submitted some of my work to a local production company a while ago - first thing they said 'get that watermark off your work' we want to see the image, not your name.