Video model release?

by philg

I’ve been enjoying a Canon EOS 5D Mark II for some weeks now, but have not yet figured out what to do with its video capability. Today it hit me… why not use the video to get a model release? Before taking someone’s picture, ask them, on-camera, “Is it okay if I use your image in magazines, advertisements, and Web?” This avoids the awkwardness of asking them to sign a paper model release with a lot of fine print and I would think that legally it might be just as good. The paper document, with its fine print, would have a longer list of acceptable uses, but a person could deny having signed the paper or say that coercion was involved. With video it is easy to see that the environment was friendly, that the subject was free to say yes or no, and that the subject was definitely the person who appeared giving the release on video.

The Statute of Frauds does not list “model release” as one of the things that must be in writing. What’s wrong with video?

Comments from anyone with a law background would be welcome.

11 thoughts on “Video model release?”

  1. Not a lawyer; just MBA-level law (which means “not much; more drinks please”)

    It seems to me that just asking would be insufficient, as there is no mutually beneficial transfer, which is one of the foundations of a contract.

    “If I e-mail you a copy of the picture, is it okay…” would be stronger, as they are receiving something for giving you something. I’m not sure, however, if doing this as an all-digital TFP would work – you could end up needing to argue your standing as a “photographer whose work has value by the market,” which of course, being Philip Greenspun, you could do, but that’s actually requiring you to actually go to court.

    “If I mail you a print of the picture…” would be standard TFP, and there’s enough precedent for that.

    “If I give you a dollar…” would be a ten second trial: “See, watch the video; they were paid and they accepted it. Contract.”

    As begun, IANAL.

    PS: Anyone got a company I can wreck and then get money from the government? I’m getting sick of the 16-hour coding days.

  2. Cute idea. Remember to set 640×480 mode. The HD mode is 40 megabits which is a bit of a hog. Mind you the video is very good quality, in part because you put a better lens in front of it compared to camcorders.

    But the coolest thing about the 5d mark 2 is the high ISO modes.

    If you are getting one, buy it in Canada, save about $300 at today’s exchange rate on the kit with the 24-105L, then sell the lens and save even more.

  3. I am not a lawyer, just a law student, so please don’t construe anything I say below as legal advice; for a legal answer, consult a licensed attorney.

    That out of the way…

    The Statute of Frauds does restrict goods over a certain value, e.g. $500, mandating written agreements for those. Arguably, a particularly successful model release form could be worth more than $500, though whether it qualifies as a good is another question. But on a practical note, the ancient engines of the law are not built to handle the sort of video-consent arrangement you’ve described — they’re built to handle paper, just like they’ve been doing for hundreds of years.

    From what I’ve gathered of the practice of law, good lawyers tell their clients how to reduce exposed risk; thus, video, while perhaps gaining in efficiency, introduces uncertainty and risk. A crafty opposing counsel could doubtless find arguments to invalidate a video agreement, perhaps by advancing the value-over-$500 theory above, or perhaps by saying that the video recording didn’t afford the model the same opportunity to reflect that the model would have had before signing a paper contract.

    But the law is a changeable thing. This idea does improve efficiency, especially for photographers who have a relatively high volume of model agreements. You could try contacting your local legislators and asking them to pass a bill enabling some sort of form of video-consent. It’d be unlikely that they’d do so just based on you alone, so perhaps you could reach out to other photographers and form an interest group to lobby for the passage of such a bill — a big enough effort might catch the eye of enough legislators to get it off the ground. But a big enough effort might also catch the eye of any interest groups claiming to represent the interests of models, who then might do their part in lobbying to oppose the bill. Such is the democratic process.

  4. Darren: In the old days model release forms had $1 listed as the consideration. Now they typically just say “for good and valuable consideration”. Maybe the consideration is that the person gets to enjoy appearing in an ad? Having them accept $1 on camera would probably be good, though.

    Dominik: The alternative to a video release is not going to be a 3-page document, signed and notarized. The alternative is probably going to be nothing because people are intimidated by having to sign a legal document and you don’t really have anything to offer them (except maybe $1).

    Lobby for a new law? I don’t think that there any existing statutes regulating photographic model releases. Statues and cases refer to “consent” but don’t say how that consent may or must be proven. It seems awkward to demand that video be deemed explicitly okay, but not say anything about a paper release.

  5. I am not undertaking to provide you with legal advice, but here are a few thoughts:

    1) In principle, I see no reason a video release wouldn’t be as effective as a written release.

    2) Courts are more used to dealing with written documents than video, which means that they may be more willing to entertain questions like “How do we know this wasn’t faked?” — even though it would be far easier to forge a document.

    3) Video releases include a lot of extraneous information that paper releases don’t. For instance, someone may say, “Just look at the video — I was clearly drunk! You disagree? Well, that’s for the jury to decide.” As a practical matter, it would be harder to raise that issue with a paper release, because there’s less information available.

    4) Keeping in mind the points above, it is certainly true that any release is better than no release, and if the alternative, practically speaking, is no release, then there’s no downside I can see to getting a video release.

  6. The claim that a model release is a contract doesn’t make sense to me. A model isn’t signing a contract promising to do X if you do Y. The release is needed because state laws create a right to privacy/publication right ( http://www.publaw.com/rightpriv.html ), and those laws require permission from the model, which you get with a statement: “I, Mr. X, give you permission to publish my likeness” or words to that effect.

    Whether a taped release would have the same effect as a written release is beyond my pay grade. It reminds me a lot of a holographic will. And the term “writing” has expanded over the years to include things that were never actually written on paper (email and electronic documents for instance). What really gets hairy is that this whole area of law is state law, which changes from one state to the next — and the definition of a written instrument changes from one state to the next.

  7. Nevada’s law (where I currently live) regarding right of publicity (notice section on “consent” not “contract,” also notice “written consent” is not defined in this statute): http://www.leg.state.nv.us/Nrs/NRS-597.html#NRS597Sec770 . It looks like other states make a distinction between the right of publicity (for famous people) and the right of controlling a person’s likeness (for everybody, including famous people).

  8. Thanks, Max. It looks like Nevada does require “written consent”. The other statutes that I’ve seen require only “consent”.

  9. Even so, “written” isn’t defined, and I haven’t had any luck finding a general definition for generic laws. It sounds kind of obvious, but I know some things that I wouldn’t consider “written” have been accepted at the state and federal level (one of the more colorful lawsuits in recent history comes from dispute between a Christian video company and their distributor — http://www.ca5.uscourts.gov/opinions/pub/03/03-10837-CV0.wpd.pdf — notice the fact that the “writing” is only email is nearly irrelevant to the appeal, instead the appeal turns on the fact that the email wasn’t addressed to the distributor so can’t be any kind of “agreement”).

  10. The VeggieTales lawsuit turns out to not be as clear as I had hoped, because it refers to a “memorandum” instead of an email (although I understand the memorandum was an email).

    Federal Rules of Procedure 34(a) ( http://www.law.cornell.edu/rules/frcp/Rule34.htm ) defines “document” to include “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.” Problem is, as a nonlawyer, I can’t say if document is the same as writing, and I can’t say if this rule is similar to what the states use, and I can’t say if this rule only applies to the discovery phase of a trial or if a similar definition holds for other phases of a trial.

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