Tag Archives: legalese

Permission to Shoot: When to Use Model Release Forms

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©Jaimee Todd 2012

 

As I’m sure you’ve noticed, there are a lot of photography contests out there and many of them these days are requiring entrants to have a model release form if they submit an image with a person in it. All of these requirements compels the question: Is it always necessary to have a model release form when photographing someone?

Well, as with most things in life, it depends on what your purpose is.

First of all, a model release form is a liability waiver that the person who is the subject of the photograph signs, granting permission to the photographer or publisher to use their image.

When you’re using someone else’s image for commercial gain, you’re going to want to use that release form to be legal. This would mean images used for brochures, websites, catalogs, ads, tradeshows, kiosks, etc. Because model release forms pertain to privacy, using one for commercial purposes protects you from civil liability.

In contrast, if your  image is appearing in an art exhibition, a trade publication, magazine or newspaper,  a model release form isn’t necessary because those contexts are considered to be for educational purposes. It’s also unnecessary to use a model release form for casual photographs, such as for street photography. There’s no expectation of privacy when you’re out in public so there’s no need for the form so long as you’re not taking that picture to specifically promote a product or service.

Additionally,  if you’re a photographer and want to publish such an image on your website that is for sale, you still don’t need to a model release form. As of this blog post, whether it’s required to get a model release form for publishing an image on the internet is being debated in 9th Circuit Court of Appeals. I’ll be sure to post an update when there is a decision.

In the meantime, if you are going to use a model release form, it’s helpful to have one exclusively for adults and one for minors. You can get a very simple sample release form right here.

So if you’re ever unsure whether or not it’s okay to shoot people, get a form for it. Wait…that sounds really messed up.

But in all seriousness, if you’re unsure, always err on the safe side and get the release form.

Happy photographing!

Beware the Bite Off

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1. Bite off: (verb)-Term used to describe someone copying something or someone else.

Example: Aw, I know you aint wearin the same turtle neck I got on right now. Daiyam, quit BITING OFF me, dawg! (source Urbandictionary.com)

Today I got an email newsletter from fellow New York artist, TMNK (The Me that Nobody Knows), about his own experience with the bite-off, or as he alleges, possible copyright infringement. TMNK,  with whom I had the pleasure of doing a group show a few years ago in the East Village, recently wrote about an upcoming documentary called Art as a Weapon which was directed by Jeffery Durkin and features a logo designed by Shepard Fairey that looks eerily similar to TMNK’s. In addition to the logo, the documentary title is also pretty close to his slogan “art is my weapon”, which I remember  being part of his mystique ever since I worked with him nearly five years ago. TMNK also goes on to question whether Fairey also bit off of his style in several of his paintings as well. According to him, he was never contacted by the movie director nor Shepard Fairey regarding his artwork or how he uses his work as a vehicle for youth mentoring and outreach. To read more about this, you can visit TMNK’s blog here.

Several months ago, in an post on the art blog The Abundant Artist, Cory Huff  artist talks about how artists are pretty much left out in the dark when it comes to protecting their copyright. In short, he  cited several examples of artists whose work literally got jacked by big-wig corporations, such as Urban Outfitters, and the lengths they tried to go to defend their copyright. Essentially, the artist gets left out in the cold because they really can’t protect themselves when it comes to copyright due to the high costs of litigation.

Also, as Cory notes, another aggravating factor is that copyright law is pretty inadequate. It’s vague and often ill-defined and subject to interpretation that can be difficult to apply to mediums that are themselves intangible and also subject to interpretation.

Add to that, when it comes to creating visual art, a lot of it is built on “stealing” ideas. Artists often look to other artists for inspiration and frequently build upon and re-interpret an idea, which compels one to ask, where do you draw the line? Copyright law regarding fair use and derivative work tries to answer that question, but as I just stated, that can be a grey, vague area.

So what’s an artist to do?

One option is to do as TMNK and some other artists have done and raise a big stink via social and other electronic media in the hopes that loyal followers will get the word out and shame the offending party into behaving properly.

Another option, as Cory writes, is to find a way around the inadequacies of intellectual property law  so that artists don’t have to worry about constantly protecting their copyright and people don’t have to worry that they’re ripping someone off.

Either way, copyright protection and use is a very important topic that  we artists have to address and work around because sometimes slapping a copyright symbol on all of our works and sending a threatening letter signed “Esquire” aren’t always enough.

What are your thoughts?

Painting from Photographs: Derivative Works & Copyright

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my watercolor onion sketch of a photo courtesy of Lulu

Recently, a fellow artist on Twitter asked me if painting from photographs taken by someone else constituted copyright infringement. As with many legal issues, it depends on how you use the image.

When I was taking watercolor classes back in college, my instructor always reminded us that creating paintings from the images we saw in the National Geographic magazines constituted copyright infringement because the photographer owned the copyright  (or at least National Geographic did since it was likely a Work For Hire) Instead, my teacher had use reference works from photographs that he personally took.

A painting made from a photograph is known as a derivative work. A derivative work is “art that is based on the work of another artist or school of art, or uses all or part of another artist’s work in it, is known as derivative art”. (http://painting.about.com/od/artglossaryd/g/defderivative.htm) This lovely definition also extends to photographs, so if you do intend to use someone’s photograph as a basis for their painting, you should get their permission first. US Copyright law makes it clear that “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work”, so unless you want to get a nasty letter from someone’s lawyer, ASK FIRST. Don’t rely on the fact that you snatched it off the internet and hope to Sweet Minty Jesus that no one will notice. It’s not worth the risk. There are places where you can get free reference photos, but personally, I like to take my own shots so Lulu tends to come in pretty handy. (Speaking of which, I know she happens to get really pissy when people try and steal her work so I’d highly suggest you’d get permission first if you like to make use of her handiwork).

Also keep in mind that just because someone’s photograph or work doesn’t have a copyright symbol underneath or nearby that it’s not copyright protected. In fact, copyright  immediately exists upon completion of the work. Add to that, you also need to remember that copyright exists during the life of the author PLUS seventy years, so if you see a copyright ©2007, know that the rights still exist, so hands off!

For more useful information about copyright and derivative works, I highly recommend visiting the topic on About.com.

Happy painting!

Artist Beware!

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I was about to submit one of my designs to H&M’s T-shirt design contest, but like a good little lawyer, I decided to go through and read the terms and conditions of entry. Man, I’m glad that I did. I was all set to enter when I read the following provisions:

3.7 Submission and Ownership of Content:

(a) The website will enable entrants to submit to H&M the form of the original artwork (the “Content”) for display on the website and potential use by H&M in connection with the sale of its products, whether as a Submission in the Contest or otherwise. Upon submission, the Content, whether or not protected by copyright, will be the sole property of H&M. [emphasis mine]

Yes, my dears, that means whether or not your artwork is selected as a winner, once you submit it, it belongs to H&M, meaning that they can use your art however and whenever. Is this legal? Yes, indeed, thanks to the Work For Hire Doctrine. Just read a little further in the contest rules:

b) All results and proceeds from the Content (or in connection with any ancillary, subsidiary, supplemental, promotional or derivative work relating to any version of the Content), and all other materials of every kind whatsoever created by an entrant if relating to any version of the Content (or relating to any ancillary, subsidiary, supplemental promotional or derivative work relating to any versions of the Content) (collectively, “Work”), are a “work made for hire” (as that term is used in the United States Copyright Act) for H&M, prepared as a work specially ordered or commissioned for use by H&M; of which H&M is to be deemed the “author” within the meaning of the United States Copyright Act. All such copyrightable works, as well as all copies of such works in whatever medium fixed or embodied, will be owned exclusively by H&M upon their creation and entrant will have no interest in any of them. Without limiting the foregoing, if any of the Work, or any part or element of the Work, is not deemed to be a “work made for hire” for H&M, the entrant irrevocably and exclusively grants and assigns to H&M (or, if any applicable law prohibits such assignment, entrant hereby grants to H&M an irrevocable royalty-free license of) right, title and interest in and to such Work, throughout the universe, in perpetuity, in any and all media, whether now or hereafter known or devised. [Emphasis mine]

Sorry for all the extra emphasis but I only do it to drive home the point; when you are submitting art to contests such as these, it means your artwork forever becomes property of H&M. So let’s say later on you decide that you want to use your work to design your own line of T-shirts or something else; according to these provisions you can’t do that without permission of H&M because your artwork isn’t yours anymore; it belongs to H&M. Unfortunately, a lot of artists aren’t aware of these provisions within copyright law and things can get so nasty that an artist can get sued for copying his own work.

Crazy, right?  It very well may be but it’s totally legal under copyright law. That’s why it’s always important to always read terms and conditions of art contests before you submit your works to competitions like these or enter into such an arrangement with an employer or someone who commissions you.

That said, the only way I could envision myself submitting to these kinds of set-ups is if I am getting paid substantially and deriving massive benefits for giving up rights to my own work. Being somewhat of a control freak, it would drive me crazy to think that I would have to ask someone else’s permission to use one of my own creations.While I’m intrigued by the idea of having my art on t-shirts, I’d rather do it through an agreement that I broker myself.

So, fellow artists, beware! You don’t have to be a lawyer to be cognizant of these things; just be sure to read the rules and conditions and fine print before giving your artwork up.

Click here to read more about H&M’s terms and conditions regarding their “Your Art Here”.