Model Releases ADVISORY NOTE. What is a Model Release? What is its Purpose?

CANADIAN ARTISTS REPRESENTATION / LE FRONT DES ARTISTES CANADIENS ADVISORY NOTE Model Releases By Paul Sanderson for CARO (Canadian Artist Represent...
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CANADIAN ARTISTS REPRESENTATION / LE FRONT DES ARTISTES CANADIENS

ADVISORY NOTE

Model Releases By Paul Sanderson for CARO (Canadian Artist Representation Ontario) © 1985, except the long form Model Release, which is Copyright 1981 by AMPHOTO, a division of Watson-Guptill Publications. Reproduced with permission.

What is a Model Release? The Term "model release" is widely used in the arts community but is seldom defined and not always clearly understood. The word model is used here to mean "a person who poses for an artist," rather than a "precedent" (as was meant in CARO's 1982 publication Model Agreements for Visual Artists, by Paul Sanderson and Judy Gouin). A release is an agreement or contract, often just a simple one-page form that is meant to release an artist from legal liabilities. Sample releases are shown below. A release may be oral, or implied from the conduct of the parties. Although such oral arrangements may be legally binding, it's better to put it in writing. (For more about why agreements should be in writing, see Model Agreements for Visual Artists.)

What is its Purpose? The purpose of a model release is to clearly define the terms of the relationship between the model and the artist in order to avoid misunderstandings and minimize the possibility of lawsuits. The release functions as a licence. A licence gives someone the right to do something that may be wrongful or illegal without such consent. Licences are contracts, and the considerations involved in contracts and the advantages of written contracts are all-important when considering a release.

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When Should Artists Use Model Releases? Generally, an artist should employ a model release when using the name, likeness or other personal attributes of an individual. Model releases should be used by photographers, and by artists who create films, videos or even drawings of people. Whenever possible, artists should obtain model releases in writing. It's wise to get into the habit of carrying a pad of blank releases when doing fieldwork, and keeping them handy in the studio. A model release is needed when a model is engaged for the specific creation of a work of art in an artist's studio. It is also generally required when anyone's personality is used for commercial purposes. Although the exact meaning of the word personality is not legally well defined, it currently refers to a person's name, likeness, image and other personal attributes. The law is developing in this area and what constitutes a personality in the legal sense may expand in future. Generally, one shouldn't use anyone's personality without permission. But if you make unauthorized use of a celebrity's personality, it's obvious that there is a greater possibility of a lawsuit.

What Should be Included in a Model Release? Keep in mind that the contents of a release may be negotiated. For example, the model may agree to the use of his/her likeness only in black & white photographs, or may agree to a one-time use only in a particular magazine. Other parts of a release may be negotiated, such as the right of the model, particularly if a celebrity, to approve the image before completion of the artwork. Ideally, a model will agree to a blanket release, similar to the long-form sample reproduced below. This standard release allows the artist or anyone to whom the artist gives permission, to deal widely and broadly with the model's image for practically any purpose. If the model release form is changed the changes should be dated and initialized by both parties to the contract. If the significant changes are involved, the release should be retyped. Both short and long form releases should be irrevocable. This provides some certainty and attempts to protect the artist at a later date if the model has a change of heart. Consider also the use of a seal in both short and long form releases. A legal seal is a red dot affixed to the agreement beside the model's name. Legal seals are generally available from retailers of office supplies. Both short and long term releases should include a statement about the age of majority.

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Short Form Release A short form release, which may consist of only a single paragraph, should include at least the following: (i) the name and signature of the model (ii) the name and signature of the artist engaging the model (iii) the name and signature of a witness, preferably an independent third-party witness; witnesses can later testify in court about the understanding of the parties who signed the release (iv) the date (v) the consideration, which is typically the financial reward the model receives upon signing the release. It may be nominal (for example, $1.00), but it is significant because its effect is to make the contract between the parties binding (vi) a statement that the model is the age of majority

Long Form Release In addition to the items included in a short-form release, a long-form agreement should also include the following: (i) permission for the artist to make alterations to the image of the model (ii) the way or ways the image is to be used (iii) the right of the artist's agents, assigns and legal representatives to the use of the image; this allows persons other than the artist to benefit from the release (iv) some royalty arrangement if the artist intends to pay the model for subsequent uses of the image. Points (i) and (ii) above refer to the fact that, in certain circumstances, an image that distorts or misrepresents a person in the eyes of the community may amount to defamation. By obtaining the model's consent to use such distorted images, the artist is attempting to prevent a lawsuit.

Minors Minors, also referred to as infants, present a special situation for artists attempting to CARFAC ADVISORY NOTE: MODEL RELEASES

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obtain model releases, because there are specific laws dealing with minors' contracts. Essentially, the contract must be beneficial to the minor. Whether it's beneficial is usually determined by the amount of money being paid to the minor. Minors are also in a special category in that some contracts may not be binding on them. In an attempt to bind the minor, common practice is to have the minor's parent or guardian sign the model release. If the minor does not live up to the contract, then the artist may be able to sue the parent or guardian of the minor. It is not always easy to determine who is a minor. A minor in one province may be the age of majority in another. Find out the age of majority in your province. (It is usually 18.)

Conclusion The above is only general advice, and in specific situations it's recommended that the artist seek skilled legal advice. In addition, the law can change and it's necessary to keep up to date.

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Sample Model Releases: The following are sample model releases only; it is not suggested that they are appropriate in all contractual situations which require releases. CARO does not recommend that it be adopted verbatim in all situations.

SHORT FORM MODEL RELEASE For consideration of ________, I, __________________, give __________________, his/her assigns, licensees, and legal representatives the irrevocable right to use my picture, portrait or photograph in conjunction with my name or a fictional name in all forms and media and in all manners, including composite or distorted representations, for advertising, trade or any other lawful purposes, and I waive my right to inspect or approve the finished product, including written copy, that may be used in connection with it. I am over the age of 21 years and have read this release and am fully familiar with its contents.

______________________ Date ______________________ Witness

_____________________________ Name _____________________________ Address

______________________ Address

I am the parent and/or guardian of the above and I approve the above release, signed by the infant model, with the same force and effect as if executed by me.

_____________________

_________________________

Parent or Guardian

Address

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LONG FORM MODEL RELEASE (This Long Form Model Release is Copyright 1981, by AMPHOTO, and is reprinted by permission of Watson-Guptill Publications.) For consideration of my engagement as a model by ________________________, hereafter referred to as the photographer, on terms or fee hereinafter stated, I hereby give the photographer, his legal representatives, and assigns, those for whom the photographer is acting and those acting with his permission or his employees, the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me, in which I may be distorted in character, or form, in conjunction with my own or a fictitious name on reproductions thereof in colour or black and white made through any media by the photographer at his studio or elsewhere, for any purpose whatsoever; including the use of any printed matter in conjunction therewith. I hereby waive any right to inspect or approve the finished photograph or advertising copy or printed matter that may be used in conjunction therewith or to the eventual use that it might be applied. I hereby release, discharge and agree to hold harmless the photographer, his representatives, assigns, employees, or any person or persons, corporation or corporations, acting under his permission or authority, or any person, persons, corporation or corporations, for who he might be acting, including any firm publishing and/or distributing the finished product, in whole or in part, from and against any liability as a result of any distortion, blurring, or alterations, optical illusion, or use in the composite form, either intentionally or otherwise, that may occur or be produced in the taking, processing or reproduction of the finished product, its publication or distribution of the same, even should the same subject me to ridicule, scandal, reproach, scorn, or indignity. I hereby warrant that I am over/under 21 years of age and competent to contract in my own name insofar as the above is concerned. I am to be compensated as follows: I have read the foregoing release, authorization and agreement, before affixing my signature below, and warrant that I fully understand the contents thereof. _____________________ Date

___________________________ Name

_____________________ Witness _____________________ Address

___________________________ Address

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I hereby certify that I am the parent and/or guardian of an infant under the age of 21 years and in consideration of value received, the receipt of which is hereby acknowledged, I hereby consent that any photographs which may be used by him for the purposes set forth in original release hereinabove, signed by the infant model, with the same force and effect as if executed by me.

__________________________ Parent or Guardian __________________________ Address

BIBLIOGRAPHY Canada Burns, Peter. "The Law and Privacy: The Canadian Experience" Vol. 54 Canadian Bar Review page 1. Gibson, D. " Common Law Protection of Privacy: What to do Until the Legislators Arrive" in Klar's Studies in Canadian Tort Law (Toronto: Butterworths, 1977). Mathieson, D. L. "Passing Off of Actor's Voice -- Appropriation of Another's Personality Without His Consent -- An Equitable Right of Privacy?" (1961) Vol. 39 Canadian Bar Review page 409. Percy, David R. "The Present Law of Infants Contracts" (1975) Vol. 53 Canadian Bar Review page 1. Sanderson, Paul and Judy Gouin. Model Agreements for Visual Artists (Toronto: CARO, 1982). Snider, W. Monte. "Releasing Your Rights" in Photo Life, January 1984, page 28.

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USA Crawford, Tad and Arnie Kopelman. Selling Your Graphic Design and Illustration: The Complete Marketing, Business and Legal Guide (New York: St. Martin's Press, 1981).

"Copyright & Model Releases In Photographic Work" The Working Arts (1981) Vol III No. 1 Bay Area Lawyers for the Arts, page 1, 6 (adapted from a talk by Robert M. Cavallo).

ADVISORY NOTES are produced by CARFAC as an informational service to provide a summary of issues of interest to practising visual artists. They are intended to be used as guidelines for the reader, not to replace professional advice, which may be required before taking action. Neither the authors nor CARFAC can assume liability for problems that may arise from their use or for any errors or omissions contained herein. Views expressed in ADVISORY NOTES are not necessarily those of CARFAC. Copyright, all rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in a database and retrieval system, without the prior written permission of CARFAC and/or the authors. Reproduction by CARFAC Regional Organizations (as defined by the CARFAC Constitution) is permitted, except where the author reserves copyright. In that case specific permission must be received from the author in advance.

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