Best Business Practices for Photographers [174]
The photographer was almost certainly required to secure a release under the obligations to the client, since it was purported that the images would be used in marketing or advertising. Following the conclusion of that project, Burwell did what he had the right to do (provided he didn't sign a contract with his client precluding this)—generate additional revenue for the duration of his copyright to his creative works by placing the images with a stock library. Revenue can come in many forms. If no release existed, he still could have licensed the image for editorial purposes, provided no libel was involved. With a release, a broad scope of licensing opportunities is available. In this case, he licensed the images through Jupiter Images, now a part of Getty. As a part of his submission to them, he likely was required by Jupiter to submit a copy of his model release or to certify to them that he did in fact have a release. An important point is to be made here. This chapter includes an example of a release that includes language like this:
"permission to copyright and use, re-use, publish, and re-publish photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations"
Further, and to really drive home the message, the releases that I have used here include this language:
"I hereby waive any right that I may have to inspect or approve the finished product or products or the advertising copy"
Now, I don't know if this language was in the releases that Burwell received, because every release is different. Some releases are extremely specific—for example, on assignments where I was photographing a celebrity, the model release was several pages long, with all sorts of restrictions and caveats. In other cases, a release could be as short as "For the sum of $5, I agree that you may use my photograph for whatever you want forever," and it could be on a napkin, handwritten and signed. The question, first, is the extent of the release.
Whatever the extent, it is the final responsibility of the end user to affirm that the release he has does, in fact, cover the uses being planned. And, for most responsible businesses, it is required to confirm not only the validity of a properly executed release, but also that the content of the release covers the intended use.
In the lawsuit filed, the farmer's complaint alleges that Burwell licensed the image "knowing they did not have a release" and then suggests that because they "represented to the world on the internet…that [they] had a signed release," they were guilty of "statutory conspiracy."
All of this because of a single stock sale of an image for a greeting card, which then resulted in a $7,500,000 lawsuit. Fortunately for Burwell, he is a smart businessman who has business insurance that covers this type of liability, and as such, his insurance company is defending him—otherwise, he likely would be bankrupt.
It is my sincere hope that not only do you get model releases wherever possible, but that they are as ironclad as possible and that you have insurance to cover you for lawsuits like these. Lastly, this is why stock photo agencies include language like this in their contracts that you sign to be represented by the agency:
"You agree to indemnify, defend and hold harmless [agency] from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable legal fees and expenses) arising from or relating to any material or content you submit… your violation of any applicable law, statute, ordinance, regulation or any third party's rights, including but not limited to, copyright infringement, harm to a third party's trademark or other intellectual property rights, or any claim of defamation, libel or slander."
Thus, when Marsinko sued, Getty Images and Jupiter Images would have every right to turn to Burwell, cited this clause, and say, "You're defending us, too, and paying the costs