Best Business Practices for Photographers [175]
All of this for a single stock sale, and presuming that Burwell has a model release signed by Marsinko, he still has to spend the money defending himself and his right to license this image. The case, which was brought in September of 2007, was still ongoing in mid-2009 when this book was written.
Getting the Release Signed
Getting the release signed before the shoot is critical. However, how soon? I submit that you should get releases signed as soon as possible after you get the client to sign off on your contract. Surely, you need releases signed before you book airfare in the name of a model if you are traveling for the assignment. Years ago, a well-known fashion photographer in New York City recounted to me an experience where she had flown the models to the Caribbean and done the shoot, and after the shoot had been completed—but they had not returned home yet—the models balked and would not sign, while they were sunning themselves on the beach, on a trip paid for by the photographer. In all cases, you should secure a release before the first image is created.
For shoots where we are seeing the subjects for the first time as we are setting up lights, I usually task an assistant to secure the signing of the model release by the subject. This is almost always the case for editorial shoots, street photography, or low-production-level shoots.
On one commercial shoot I was hired for, we were photographing individuals on the street, and the client wanted releases. As we found someone we wanted to photograph, I would task my assistant with approaching that person to get his or her permission. Once the person said it was okay and signed the release, we photographed him or her with the assistant holding up the release alongside the subject, so we could later identify each subject with his or her name.
However, who should witness that the release was legitimately signed, and not under duress or a degree of incapacitation (such as inebriation)? The challenge of having an assistant witness it is that since the assistant is working for you, his or her impartiality as a witness could be called into question. A witness is better than no witness, though, and sometimes we ask the client or another party to witness the signing. In some instances, we'll take a photograph of the person signing the release, which not only serves to affirm they signed it, but also helps us cross-reference the subject and the signature. In the end, an impartial witness—or absent that, the least potentially biased witness available—should be the one to witness the release. And make sure they actually do witness it!
When the subject is a professional model, the release is almost always specific to the shoot at hand and has a duration as well. Just as we earn a living from licensing our images, models earn a living from licensing their appearance. If you secure a release for all rights from an unsigned model who is 19 and at the beginning of her career, and then that model signs a modeling contract and gets booked for a hair-care product line for a year, your release may legally entitle you to license that image to a competing line of hair-care products, and that would be the beginning of a huge lawsuit. Models license themselves for editorial, commercial, exclusive, nonexclusive, exclusive-to-industry, and most every other derivation of their likeness that we do of our photographs. You will want to send the release to the modeling agency and get the model to sign off on the release before you are on set. Presenting a model release to a professional model on set is a recipe for disaster.
Paying for Model Releases
For a contract to be binding, consideration must be exchanged. Consideration can be many things besides actual dollars. Photographers like to talk about always carrying dollar bills around with them on shoots, so they can pay for the model with a single dollar. When I tried that once, I felt like I was insulting the person I was photographing. Further, it's cash, so that might be one angle