Best Business Practices for Photographers [176]
Consideration could also be a print or an agreement for you to provide rights for them to use the image for their own benefit. It could be a lot of things, but it must be something of value. Wherever possible, you should be paying models with a trackable form of payment, such as a check or money order.
To ensure that there are no questions that the model was paid, releases are best written with the language "for good and valuable consideration herein acknowledged as received," so that the release is not only a release for the use of the photo, but also a written acknowledgement that the payment was made.
On one commercial shoot I was hired for, where we were photographing individuals on the street and the client wanted releases, the client instructed me to give out gift cards, and I was instructed that the value of that gift card was to be $5. This got me to thinking—I could use Starbucks gift cards in this same manner, it wouldn't come across as insulting, and it would look better than the passing of a $1 or a $5 bill. On occasion, I have given Starbucks gift cards valued at $5 in exchange for a model release.
Your Release Form or the Client's?
Often a client will have a release that their legal department drafted, and that release releases just the client and may not cover you. Since we are the ones who are licensing the right to the client, it stands to reason that we should be the ones securing the release to us and then, in turn, transferring that right to the client (upon full and complete payment, of course.) Yet more than one client has insisted that the release be theirs and has provided it to us. We request the release in the form of a word-processing document so we can insert any language we need into their document, and in some cases we have the subject sign two releases. In as many cases as possible, you should secure your own releases, which serve to protect you the most.
Other Release Issues
There are certain issues that arise where releases may be invalid or called into question. One area of concern is images made in a hospital. A 2002 article in the Journal of the American Medical Association titled "Commercial Filming of Patient Care Activities" points out some concerns in doing this: "[P]atients may feel obliged or compelled to appear at the behest of those who are in charge of their care and welfare. Filming in the emergency setting poses particular problems because patients may either lack capacity to consent or may feel under duress to give consent. Another vulnerable setting is the operating room, where an unconscious patient undergoing emergency surgery might not have the opportunity to consent to filming in advance." The article goes on: "To preserve patients' rights to control their privacy during filming, a priority is to obtain informed consent from an individual with intact decisional capacity under conditions of nonduress. Under informed consent, patients may accept a certain risk, usually in exchange for some hoped for benefit, but it is not clear whether patients always understand the risks and consequences of filming and freely agree to accept them."
One other area of significant concern is the use of images in which a government official or government employee (especially one in uniform) appears. Government officials in their official capacity are expected to remain impartial and not appear to endorse a product or service. As such, the ability for you to secure a legitimate model release from a government official, whether elected or a career employee, in their capacity as a representative of the U.S. government or a state, county, or local government is not likely to ever occur. While a government employee may sign a model release for their likeness to be used when made not in conjunction with the government, were they to do so in their capacity working for the government, government ethics rules would suggest that they were therefore using their public office for personal gain, and as such, this would be