Having A Model Release Might Still Get You A Lawsuit

One of the first things you learn as a photographer is to get a proper model release when considering to sell your work commercially. However, simply having a model release still might not prevent you from litigation. A law firm recently published an ad looking to represent firefighters who were affected by the federal James Zadroga Act. The advertising agency used by the law firm photoshopped a stock image of Robert Keiley who was modeling as a firefighter. They then created a scene where it appeared as if he had been at Ground Zero on 9/11. The argument is how much can a stock image be altered before it becomes false advertising (the ad did clearly state that the image was a depiction of a 9/11 firefighter)? In this Fox News story, two attorneys give two different sides of the argument. I think the law might fall in favor of the law firm who hired the ad agency; what do you guys think?

April 6, 2011

Patrick Hall

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http://www.rlmorris.com Lee Morris
Wow, this is a really strange situation… I’m not even sure which side I take.
http://profiles.google.com/pixelwaster Michael Turcotte
No release covers “”in a bad light” use. This is why you never use stock images and always shoot what you need. It was a big law firm, and would you really want to hire a law firm that cheaps out on advertising?
http://www.rlmorris.com Lee Morris
After finishing the video, I don’t think this guy has a case. He did sign a waiver. The ironic part is that he actually did join the fire department which is the only reason this is a issue. The whole point of stock photography is that you don’t know what the pictures are going to be used to advertise.
The fact that the ad says “this is an actor” is more than enough to cover their tails in my opinion.
http://www.rlmorris.com Lee Morris
What is so bad about this though? Like the guy in the video said, every guy in Viagra ad doesn’t have ED. Plus, those ads don’t even say “this is an actor” in them.
http://profiles.google.com/wickman3 Eric Wuichner
Wow. I can see both sides. I’m not very familiar with the wording of actual model release forms but I’m guessing that’s what it’s going to come down to from a legal standpoint. I think the one lawyer in the interview nailed it – morally wrong but not legally.
http://twitter.com/shootlove ShootLove
If you sign a release that was written up by a lawyer it should hold up in court. If you sign a release YOU SIGNED THE RELEASE. A release holds the photographer, designer and client free of recourse from the subject.
http://profiles.google.com/smokindevil Douglas Wyrick
There’s no accounting for good taste. However, if the photographer used a well written model release, he has nothing to worry about. Joey Jackson is a criminal lawyer, not a copyright one, and it shows in shocking claims of “photoshopping” and “you can’t just use the image however you like…” Actually you can (depending on the release of course.) Silly Fox news…
Anonymous
Like Lee said, the only reason this is an issue is due to the fact that he chose to become a fireman. Yes it is morally distasteful, but without viewing the release that he signed, it’s tough to say whether he has a case or not. If the release was left wide open, then no, I don’t think he does. If the release says anything about not altering the image then of course he does!
http://www.rlmorris.com Lee Morris
I think we can all agree that the guy in the pink tie is a douche.
http://nowheremanphotos.wordpress.com/ mike wilson
I’d have to disagree with you there. He’s the only one who knows what he’s talking about in this “debate”. I do love how every time he opens his mouth the presenter and the other lawyer interrupt him.
http://nowheremanphotos.wordpress.com/ mike wilson
I’m not a copyright lawyer and I haven’t read the release in question, but my understanding is that pretty much anything short of defamation of character is going to stand up in court under a standard contract.
This is the way stock photography works and both the designers and the lawyers used the image fairly. I understand that this has created problems for this fireman and he has to explain what this all means to his fellow firefighters, but as a model who’s doing stock photography work you should have an understanding of the ramifications of how the images could potentially be used and once you put the image out there as stock you have little say in how it’s used.
http://www.rlmorris.com Lee Morris
I do agree with him but 3:18-3:22 and 6:16-20 was douchey
http://profiles.google.com/evantidelc Aaron Nelson
contract contract contract… That’s all a judge is going to see when he makes a judgement. Did it or did it not break the contract? Lee, Mike is right, pink tie guy is the only who seems to understand that.
http://www.rlmorris.com Lee Morris
Exactly… I think this is the whole definition of “stock photography”. You are taking pictures that can be used for ANYTHING and there is no particular ad in mind. If they put the actors name on it and made it about him then there would be a problem but this ad does the same thing every ad does… puts a human face on something to sell a product or service.
http://profiles.google.com/mi1stormilst Garrett Graham
lol I will agree just because Lee said so and his profile pic looks like he might kick my ass if I said otherwise ;-P
http://www.facebook.com/yangminghao Minghao Patrick Yang
Don’t know much about the copyright law or the attorneys in this debates. I just wonder if the attorney on left side could state his point of view in a more calmly manner?
http://profiles.google.com/janne.aavasalo janne aavasalo
I think this wouldn’t be an issue anywhere else besides USA.
Here in Finland I don’t think the model would have a case even if he was “shopped” in with a midget and a donkey.
I think the lawyer on the left side was worked up because he had $ – signs running up and down in his eyes…he didn’t know much anything, but he sure did assume a lot.
http://profiles.google.com/janne.aavasalo janne aavasalo
I think this wouldn’t be an issue anywhere else besides USA.
Here in Finland I don’t think the model would have a case even if he was “shopped” in with a midget and a donkey.
I think the lawyer on the left side was worked up because he had $ – signs running up and down in his eyes…he didn’t know much anything, but he sure did assume a lot.
http://www.patrickhallphotography.com Patrick Hall
I’m just glad Fox is showing content like this…CNN is all Libya and Japan; both are important stories but geez, other stuff is going on too.
http://www.patrickhallphotography.com Patrick Hall
by douchey, do you mean clean and in order?
http://profiles.google.com/cboydrun Chris Boyd
I completely disagree. He made his point, and I think made it well. He was getting two on one’d and defended his side well, without getting so inflamed as the other lawyer. As for my opinion, if he signed a waiver and the ad says its an actor, and realistically what about the image is in bad light? He represents an injured firefighter from the WTC, who cares if he was there or not. If someone asked a simple “thats from my modeling days” is all thats needed.
http://www.patrickhallphotography.com Patrick Hall
When I first saw this video I was reminded of all the stock images that have people holding blank cards, frames, signs, etc where you can add anything you want to it later. To me, adding a photo to a blank prop or photoshopping a helmet out and adding another prop is pretty much the same thing.
This guy should just be happy that he’s a model and a firefighter…I’d kill to have both on my resume in a social situation :)
http://www.facebook.com/profile.php?id=675614191 Blake Beus
Does anyone even use stock photography without photoshopping it in one way or another? More often then not, the image purchased from a stock agency gets altered, and I’d bet money that the original intention of this picture was to be able to photoshop it onto any sort of background the ad agency might want to use.
http://www.patrickhallphotography.com Patrick Hall
I’m sure there is a midget and donkey act somewhere about to sue for defamation….
http://www.facebook.com/profile.php?id=22607792 Michael Santini
Just to say it up front, I’m on the ad’s side in this case. Like Lee said they put a disclaimer at the bottom stating it’s an actor. However I want to know if the waiver (and I know we can’t be sure unless we read the waiver he signed) does give the right for the agency to use it however it pleases. If they took only his head and put a naked body underneath it, is that okay just because he signed the waiver. I’m going to assume we all agree it’s not okay. There probably is some sort of clause for defamation of character for the model within the waiver. So now, is it harming his character/reputation is the question. That’s why he’s upset. If they put him in front of a burning building only he wouldn’t be threatening to sue. He claims he’s embarrassed. Does he have a LEGAL case because he was offended?
http://www.rlmorris.com Lee Morris
Haha… ok ok I’m the only one who thinks he is a douche. I personally think he could have acted less like an A hole and gotten his point across (since I think he is right).
http://profiles.google.com/sdickinson Sam Dickinson
Without seeing the release in question we can’t actually say if he has legal grounds on this or not. But if it’s like most releases, then he doesn’t have a leg to stand on. There’s no defamation of character here, so in reality it comes down to a moral choice.
http://pulse.yahoo.com/_TVNKCSI46LR62PX6HGM3T32T4Y Gary
Pink tie is right. The model was paid to pose in a uniform that was not his. He signed the release to get his pay check. Did he stipulate any potential use or restrictions or have his attorney look it over? We know better. Quoting the New York Post “”He really signed his rights away,” said Kim Tracey, an account director at the agency. “[The release] allows for use in ads, promotional usage, really anything you want.” He was paid $350.
The ad is in poor taste but the guy is embarrassed, not injured. But I love lawyers arguing about lawyers suing lawyer. Sheez, no honor among thieves?
http://pulse.yahoo.com/_TVNKCSI46LR62PX6HGM3T32T4Y Gary
Actually, the ad agency apologized and pulled the ad. The lawyers get tons of free publicity.
http://pulse.yahoo.com/_TVNKCSI46LR62PX6HGM3T32T4Y Gary
Actually, the ad agency apologized and pulled the ad. The lawyers get tons of free publicity.
http://twitter.com/philhoyt Phil Hoyt
I shutter stock images and replace items in peoples hand all the time at work. Since when was that illegal.
http://www.facebook.com/people/José-Carlos-Li-Ho/673540180 José Carlos Li-Ho
This feels just like a way for the ex-model to get some money.
It´s a shame, now every model and actor who pose for anything will sign and then sue?
It is illogical.
I hope the company wins. They paid and sign for that picture.
http://twitter.com/LayeredLife Daniel Enloe
I think the Lawyer on the Left was on Fox News’ payroll. He was, after all, in the building…Tag teaming sux for the douche
http://profiles.google.com/tty007 Ghislain Leduc
Honestly, the problem is not with the release here, it’s with the sensative way his pictures was used. The release is fine, and legaly, I don’t think he has a case BUT the company who did the add is really in my hubble opinion quite stupid. you do not make an add with such a title on such a sensitive subject as 9/11 with an actor.. Plain and simple and that’s what the problem is. Fire Fighter have bigger Ego than Policemen… don’t mess with those guys, it’s worst than the army I think :)
that’s where the problem is… not with the release.
http://profiles.google.com/hamtons junyang chen
I dont think the issue is the photograph. He signed a waiver for that.
The issue is that the text suggests that he endorsed the use of his face as a representation of the heros of the fire department at 9/11. which isn’t true
Its an identity theft. The ad firm stole the identity of the heros and placed it on the model without his consent
http://www.facebook.com/serhan.mehmet Serhan Mehmet
Both Lawyers were on the Fox payroll, do you think they would sit there and bark at eachother for 7+ min without billing Fox ???
http://www.facebook.com/robert.zembrzycki Robert Zembrzycki
He was a tiny bit douchey, agreed – it’s the slicky-sly-kind-of-a-lawyer-guy which suggests he might actually be a good one. The point, however, is that he is right in my opinion.
There’s nothing wrong in taking a stock photography and altering it for AD purposes – this is exactly what these are for! (Plus, it’s not cheaping out, because full size good stock pics are often just as expensive as shooting the whole shoot, if you already have a studio (which I bet the ad agency has))
There’s nothing wrong in using a stock photo for an advertisement utilizing EVEN such a sensitive topic as 9/11…
The model/firefighter guy now has a problem, because of an unfortunate coincidence but this is in no way intended by the company and both on moral and legal grounds, they shouldn’t even be concerned about it.
And removing his pic, withdrawing all the printed materials etc – that would cost them a fortune, and would be a punishment for a crime they didn’t commit. Something that firefighter probably can’t comprehend….
http://www.facebook.com/robert.zembrzycki Robert Zembrzycki
He was a tiny bit douchey, agreed – it’s the slicky-sly-kind-of-a-lawyer-guy which suggests he might actually be a good one. The point, however, is that he is right in my opinion.
There’s nothing wrong in taking a stock photography and altering it for AD purposes – this is exactly what these are for! (Plus, it’s not cheaping out, because full size good stock pics are often just as expensive as shooting the whole shoot, if you already have a studio (which I bet the ad agency has))
There’s nothing wrong in using a stock photo for an advertisement utilizing EVEN such a sensitive topic as 9/11…
The model/firefighter guy now has a problem, because of an unfortunate coincidence but this is in no way intended by the company and both on moral and legal grounds, they shouldn’t even be concerned about it.
And removing his pic, withdrawing all the printed materials etc – that would cost them a fortune, and would be a punishment for a crime they didn’t commit. Something that firefighter probably can’t comprehend….
http://www.facebook.com/kidyosh ‘Sa Jamil Hogan
I see no case here. The model is angry because his old job came back to bit him in his ass.
He signed a waiver for stock photography which (from the releases I’ve seen) allows the photo to be edited and shown in anyway as long as that way isn’t pornographic or demeaning. If he’s so upset about being misrepresented then he should of never posed as firefighter.
There is no defamation of character anywhere in this ad.
http://profiles.google.com/jacopo.tarantino Jacopo Tarantino
Legally he can’t sue and win. Sadly, it doesn’t matter what they do with the photo as long as he’s waived any right to the image and what’s done with it. I agree that they should have done everything to correct the situation once they heard that they had damaged his reputation but i still believe that he doesn’t have the right to protest. He did sign a binding agreement that he has no right to that photo and what’s done with it. Period. Regardless of the present controversy, can we just agree that Kelly is a poser and emotionally unstable?
http://www.facebook.com/MikePiercePhotography Mike Pierce
I think the model liked “playing” a firefighter so much, he became one. And the ironic thing is he faked it til he made it. Now he can’t fake the fact that he wasn’t a firefighter when 911 happened. I think he lost all his firefighter cool points for playing fireman before actually becoming one. I can’t wait to hear the news that he has a firefighter calendar coming out! LMAO……
http://www.facebook.com/andreassahl Andreas Dalum Sahl
If they had kept the helmet and kept the print as it is, everyone of his co workers would still ask if he was there or think that he took credit for it.. The frame does not make any difference in my opinion. To bad he ended up as a fireman, if he had been a pilot now, he would’t have a problem..
http://www.facebook.com/litobro Thomas Litobro Dang
I feel the need to agree with Chris and the guy in pink here. Does anybody else think that the waiver probably has a clause that specifies the image can be modified in non-degrading manner? I know all of my waivers do, and I don’t even sell my shots! I just shoot for fun on my blog! This professional ad agency would VERY LIKELY have a clause for allowing them to modify the image and photo that is not in violation of the constitution and anything blatantly trying to slander him.

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