The Court Of Public Opinion

Photographers often follow certain legal practices to protect themselves, but cannot be sure that they will work when challenged. One such example is using a model release to obtain a models permission to use photographs taken of him or her in specific ways. The good news is that the standard model release was recently put to the test, and it passed with flying colors.

In 2002, Russian tennis player, Anastasia Myskina, who then was 20 years old, posed for photographs by Mark Seliger. Seliger first photographed Myskina for the Gentleman’s Quarterly’s 2002 Sports issue and then photographed her topless. Myskina had signed a model release that said she consented to the use of her name and the pictures by the magazine and by others it may authorize, for editorial purposes.

After winning the French Open in 2004, a Russian newspaper published the topless photos. Myskina filed an $8 million lawsuit against the publisher, Conde Nast Publications Inc., Gentleman’s Quarterly and Seliger alleging emotional distress and economic injury.

The New York judge who presided over the case held that Myskina’s rights were not violated despite her insistence that she did not understand the signed model release and was not fluent in English at the time. Instead, the Judge stated that, absent allegations of fraud, duress or some other wrongdoing, Myskina’s claimed misunderstanding of the release’s terms does not excuse her from being bound on the contract. Nor can she avoid her obligations under the release because of her purported failure to read its contents.

Even though the photographer allegedly told Myskina that the topless photos were for himself, the Judge found that the oral agreement contradicted the plain language of the written agreement and was not admissible. The Judge then dismissed the case.

As a photographer, it is important to protect yourself as much as possible. Fortunately, the model release is one way that has been proven to be effective.

Take my advice; get professional help. PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved

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True Story:

A photographer recently settled for $275,000 with the Dallas Cowboys after the Cowboys used one of his pictures on clothing and other merchandise without permission. But after the settlement was reached, the Cowboys barred the photographer from ever working in Texas Stadium where the Cowboys play.

The photographer had given a digital file of a photograph to the Cowboys who considered it for use on season tickets. The Cowboys then bought only 250 copies to resell as prints to the public. Later, the Cowboys used the same image on clothing and other items, without getting permission from the photographer for the additional usage. The photographer had not registered his photo with the U.S. Copyright Office.

When the photographer discovered the infringements and inquired about it, the Cowboys offered him $1,000 in merchandise gift certificates. After trying to negotiate a settlement on his own for about a year, he hired a lawyer. Three years later, a settlement was reached.

Morals of the story:

-Many infringements come from uses beyond that agreed to. The infringements can come from uses on different products, for longer terms, in extra forms such as print or electronic, in other locations, etc.

-Watch your clients use of your work closely.

-Register your images with the U.S. Copyright Office before you give, or within three months of giving, them to a client.

-Even if you havent registered your photographs with the U.S. Copyright Office, you are entitled to actual damages from infringements. They can be hard to prove, but sometimes they can add up to substantial sums.

-While you may be a good negotiator, it can help to have a lawyer to give weight to your position.

-If you have to sue a client, you probably wont get work from that client again.

-Legal matters can take time; be patient for your rewards.

Take my advice; get professional help.

PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved PhotoAttorney

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