Model Release Form Question

[Hamster]

I have had a search and I can't see my specific questions answered so I hope this is new and adding to the pool of knowledge.

The scenario is, I suggested that I take some pictures of an acquaintance, they get some pictures, I get to try out new things. So far so good.
Pictures are taken. I would like to make sure that these pictures are available to me to use commercially should someone, for example say, hey, that photo is great, let me pay you lots of money to use it in my international advertising campaign. Unlikely but ......
I would say that since I said "how about I take some pictures of you" that I haven't been "commissioned". Also the Arts Law link re copyright in the sticky above says
"Some commissioned works: If someone is paid to take or make a photograph, portrait or engraving for the private or domestic purposes of the person paying (the "commissioner"), for example wedding photographs, the commissioner owns copyright in the work even though the artist or photographer is not an employee.The commissioner owns copyright in a film or a sound recording made for remuneration or some other form of payment."
and I haven't been paid anything.

First question is, does commissioned mean some kind of payment has to occur? That's how it reads to me.

But irrespective of the technicalities of the word commissioned the model could claim otherwise later, and another model may want to go into a TFP arrangement with me, and so a model release form is the way to go.

The AIPP has a model release form which I could use (http://www.cpsinc.org.au/photographer%20rights/model_release.pdf).

OK, I change the wording from "I understand that I do not have any interest in the copyright to the photograph(s) norshall I receive any further payment." to "receive any payment" and it seems to be pretty good to go.

From my side, I'd like to make sure the model doesn't sell the images and when using them credits me (really, I'm not that fussed re credits right now, but lets say I am).
My question is, what if my model says, "hey I read something about a model suing a photographer for using a photo in an advert where she was depicted as having HIV, and there was another one about porn sites. This form you're giving me to sign says you can use this photo how you like."

I'd say she's got a point. So what assurances can I/do I give the model? Are all model releases the same and the model just has to take the risk? How do I respond to that question from the model? I can see how, from a non professional model's perspective this could be a bit scary and she might shy away from me coming at her with a model release form.

[ricktas]

'commissioned' does not relate to payment. Commissioned in this context, means asked to do, requested, contracted. Similar to "I was commissioned to clean my room'. It simply means someone has asked, requested, told you to do something and you agreed. Payment, monetary or otherwise would be a different clause in the contract.

What you do have to be careful about in changing the wording of a pre-existing contract is that you do not breach legislation by doing so. Things like 'the photographer retains copyright' can be an issue in Australia. Cause under the copyright act, domestic portraiture, copyright belongs to the person(s) who paid for the photo session, photos. So a photographer cannot 'retain' copyright, when it was not theirs to begin with.

If you are going to amend a pre-existing contract you probably need to seek the services of a copyright lawyer, to check it. And having a copyright lawyer you have been in contact with, means that if a model does sell the photos, you have someone already, to contact regarding any dispute that arises.

Once you start taking payments for photography and doing photoshoots for clients, remember you are classed as a business and subject to all business laws etc. It is amazing how often someone who calls themselves a 'hobby' photographer ends up with legal issues cause they do not seem themselves as professional photographers, but to the client, who contracted, paid and got photos, that is exactly what they see it as, a business arrangement.

[Hamster]

OK, so if I said "lets do some photos" I own the copyright and if she says "can you take some pictures of me" then she does. Like I say though, later on, either of those original statements can turn into a "he said she said" argument, so having a signed model release is the way to go. Plus many places won't even display a photo without this, since they can't be sure you're telling the truth when you say you own copyright etc.
It sounds like you're saying that taking an online model release form and altering the wording (if necessary) is not a good thing to do, yet everything I read says that grabbing a standard model release form is the way to go. I take your point re the wording of "retain" versus "transfer", and I've see another person talk about how copyright is ownership and licensing is usage, all good points. In my example where I say I asked if she wanted to do some shots I have the copyright and so the wording of that AIPP form is reasonable and would literally just be taking out the word "further". If I kept it as is (implying that she has already been paid) is it OK to use it then. Does this work because giving her files in a TFP arrangement counts as payment?
Still not a good idea? Does everyone on here who uses a model release form have their own bespoke and lawyer generated form? if so, do they have one that covers paid, unpaid, commissioned and non commissioned?

Anyone got any thoughts on the question re MY use of the photos and responding to worries that the model may have?

[ricktas]

OK, so if I said "lets do some photos" I own the copyright and if she says "can you take some pictures of me" then she does.

NO! Domestic Portraiture, under the Copyright ACT, the photos belong to the client. Now domestic is deemed portraiture that is not Commercial. So say you were doing them for a magazine, then the magazine is the client, they are commercial, so the contract would need to stipulate who owns what. But for domestic, the client owns copyright by default.

[Hamster]

NO! Domestic Portraiture, under the Copyright ACT, the photos belong to the client. Now domestic is deemed portraiture that is not Commercial. So say you were doing them for a magazine, then the magazine is the client, they are commercial, so the contract would need to stipulate who owns what. But for domestic, the client owns copyright by default.


Sorry, I don't understand this. Copyright is with the creator, except in some circumstances, one of those being when someone commissions work.

Some commissioned works: If someone is paid to take or make a photograph, portrait or engraving for the private or domestic purposes of the person paying (the "commissioner"), for example wedding photographs, the commissioner owns copyright in the work even though the artist or photographer is not an employee. The commissioner owns copyright in a film or a sound recording made for remuneration or some other form of payment.

If I say to you, "Hey Rick, you're a good looking bloke and I've got some new flash gear I want to try out. How about I take a few shots of you and I'll let you have the files afterwards.

You haven't commissioned me to do anything. There's no payment in monetary terms, but if you want to talk "other" payment then you've paid me in time for some prints, so you've commissioned me if anything. This is the "lets do some photos" scenario.
What part of this am I mis interpreting, because it sounds like you're saying that in this situation you STILL own the copyright of the shots I take of you.

[ricktas]

Which is why I said in my first post that if you are going to amend a pre-existing contract with your own words, seek the advice of a Copyright Lawyer. You need to be sure for you that your contract is worded correctly, such that you do not end up in a legal dilemna. Getting information from a forum is good, but if you end up in court, you cannot argue that 'someone on Ausphotography told me'. You need to get proper legal advice.

Re your scenario of me being a good looking bloke..I could sue you for that untruth alone :D. You need to note that verbal contracts if they can be proven, have been upheld in court. And yes in most instances you will not have an issue asking someone if you can take their photo, but you need just one person to dispute a verbal or written contract and your love of photography and $$ go flying out the door.

So again, if you are altering existing contracts, get legal advice.

[Hamster]

Thanks. I agree that a verbal agreement isn't really worth the paper it's written on, hence my wanting to sort out a model release and, really, the issue of whether something was truly commissioned or not is a moot point.

So is there a source of a suitable model release form I can use for commissioned, domestic work that leaves the copyright with the model, but limits their use and allows me to sell said images.
Can I use that AIPP one I linked to earlier if I don't alter it?
Again my question to all is, are you using an off the internet standard form, or a bespoke copyright lawyer created form that you paid for. I can see this being an interesting poll to set up....

[ameerat42]

...I agree that a verbal agreement isn't really worth the paper it's written on...
A good joke:D:D:D


Again my question to all is, are you using an off the internet standard form, or a bespoke copyright lawyer created form that you paid for. I can see this being an interesting poll to set up....
Interesting? What would it show?

Am.

[Hamster]

Interesting? What would it show?

Am.

Who is taking domestic/non commercial portraits and:
Has no idea a model release is a good idea
Knows the implications of not having a model release but doesn't care.
Uses a standard form off the net
Has got a copyright lawyer to draft them up a model release.

I'm not certain if this is his opinion, but I'm getting the vibe from Rick that his opinion is anything not drawn up by a lawyer is likely to not be good enough.

[DinaStudio]

So what assurances can I/do I give the model?

When we did TFP we usually said it our contract that none of the parties can sell the images or profit from them directly. This is portfolio only work.
When the opportunity came about to sell the images, we just contacted the model and said "Wonna make some money?". You discuss all the specific details at that point. It is much easier for the model to make the informed decision at the time.
Then you get your model to sign another release paper specific to the transaction and clearing you from any responsibility once the image is sold.
This is simple way.

The right way would be to get a layer. :)

Dina

[fillum]

Not my area of expertise by any stretch, but we's on the interwebs...:D, so...

I think you may be getting two things crossed...a contract for photographic services, and the model release. My understanding is that a model release is typically used where the photographer owns copyright but wants to use the images for commercial purposes. It is also my understanding that "commercial" under copyright law has a particular meaning that relates to promotion/endorsement, not merely about making money off the image. So if I take a photo of someone and I retain copyright I can sell that image but I can't use it to advertise a product. I can even sell it to a magazine (otherwise the 'paps' would be out of business). Obviously it's better to have a release in place for any usage to avoid 'misunderstandings' later.

The contract for photographic services should cover everything about the shoot including (but not limited to)...
- identification of the parties involved
- payment details
- deliverables (album, cd, etc)
- who gets copyright
- usage rights (for both photog and model)
- timeframes (for delivery etc)
- whatever else I've forgotten (basically anything that could turn into an argument later)
You could also include 'get out of jail' clauses that cover failure to deliver (sickness, equip failure, etc)...

Even though the contract may state that commercial use of the images is permitted, it's probably a good idea to get a separate model release form that you can submit when required, rather than send a copy of the contract which may contain details you don't want to make public.

Anyhoo, the 'take-away' from a thread like this is that this stuff can be extremely complex so you need to get 'proper' advice. Maybe some of the members here that regularly shoot TFP will be along to offer some details of their experience...



Cheers.

[ricktas]

if you are using one of the net, make sure you get an Australian sourced one (like the AIPP one), that has at least some possibility of being vetted by a copyright lawyer at some point. No use using a USA one cause their laws differ to ours and clauses may not be correct under Australian Law.

[Hamster]

You know what, I'd even say that AIPP one looks a bit suss. It says "description of date of photography", which I suspect should be "description AND date of photography"

Also "No changes to the terms of this model release are accepted unless agreed in writing by the photographer, his/her assignees or licensees or myself."

It says "or myself" not "and myself". So the photographer or model can agree in writing to a change by writing to him/herself and not involving the other party. But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law.

Plus the "I do not have any interest in the copyright" part sounds as flawed in its wording as one saying the photographer "retains the copyright" if the situation is that the model owns the copyright.

[ameerat42]

Can you please provide a link to this form so we may check the context of the excerpts.
Am.

[Hamster]

Can you please provide a link to this form so we may check the context of the excerpts.
Am.


A link is in the original post.

[ameerat42]

(Ta. Didn't see it.)

Well, you're right! It is an unfortunate document in regards clarity and therefore intention, ie, not just cumbersome.

Maybe there's a better one from them???

Am(not signing unless agreed to by me or myself or any other suitably confused party:D).

[ricktas]

Who is taking domestic/non commercial portraits and:
Has no idea a model release is a good idea
Knows the implications of not having a model release but doesn't care.
Uses a standard form off the net
Has got a copyright lawyer to draft them up a model release.

I'm not certain if this is his opinion, but I'm getting the vibe from Rick that his opinion is anything not drawn up by a lawyer is likely to not be good enough.

Not true. But if you are going to change who owns copyright etc, from what the Copyright Act has, then you need to cover your arse. I don't take portraits that I change copyright for. I tell my clients as per my contract that under the Copyright Act they own the copyright. I request usage rights to promote my photography, but that does not include posting them to AP or facebook etc. In fact I state that I will not post photos taken under contract onto forums or social media sites. So my contract is fairly standard as I am not trying to change anything in the Copyright Act. Some wedding photographers I know, specify that they are taking copyright back from the client and that they own copyright exclusively.

It all depends what you want to do, or how you want to use the photos.

Last week I took a pile of photos for a vet surgery. For their website. I have not used those photos anywhere and will not. They had me take them for them, for their website. That is what the contract states and they have the rights to use those photos on their website, brochures, emails or anything else they want to use them for. I will not use them at all. So my contract is fairly straight forward. I take them, the client owns them to do what they wish with.

[Mark L]

You know what, I'd even say that AIPP one looks a bit suss. It says "description of date of photography", which I suspect should be "description AND date of photography"

Also "No changes to the terms of this model release are accepted unless agreed in writing by the photographer, his/her assignees or licensees or myself."

It says "or myself" not "and myself". So the photographer or model can agree in writing to a change by writing to him/herself and not involving the other party. But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law.

Plus the "I do not have any interest in the copyright" part sounds as flawed in its wording as one saying the photographer "retains the copyright" if the situation is that the model owns the copyright.

And you know more about the law and how it relates to photography than them? Words are different in law than in forums.

- - - Updated - - -


(otherwise the 'paps' would be out of business).
They take photos from public space (generally). If I'm standing on a public road and see someone famous having sex in their bedroom (oops, forgot to close the curtain), I can pretty much do what I want with the photo. This has not much to to with the OP's question.:)

[Hamster]

And you know more about the law and how it relates to photography than them? Words are different in law than in forums.



Hence my comment
"But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law."

I work in a world where I translate my expertise into a form that the client can understand and use, unfortunately lawyers seem to work in a world of their own, deliberately created to confuse their clients, probably so they can charge extra for their continued translations.


Edit - Like you say this doesn't really relate to my original question, but this is the interwebs so I'm forced to point out that you may be incorrect with your second point.

The Summary Offences Act 1988 (NSW) outlines a number of circumstances where a person’s privacy must be respected. For example, it is an offence punishable by a fine or imprisonment to photographa person to provide sexual arousal or gratification if the person is undressed or engaged in a private act in circumstances where a reasonable person would reasonably expect to be afforded privacy, and he or she has not consented to being filmed. A private act includes using the toilet, bathing and engaging in sexual activities not ordinarily done in public. Similarly, the Surveillance Devices Act 1999 (Vic) and Surveillance Devices Act 1998 (WA) make it an offence to photograph a "private activity" without the consent of the subject. - See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#headingh33

[fillum]

This has not much to to with the OP's question.:)Was response to Rick's comment in post #4 (although on re-reading I see it was a different sense of "commercial").


Cheers.

[ricktas]

In the end, what each and everyone of us wants in a contract, as to what conditions of use, who owns what, how much, etc is our own decisions. There is no perfect contract that covers all of these. Yes you can get generic basic contracts on the net from a range of places, some of which may have been looked over by a copyright lawyer, or other lawyer, some will not have been.

Whilst in the vast majority of cases, parties to a contract abide by it, and it is never tested in Court, it is good to ensure your specific contract is well written, with wording that is unambiguous, is not breaching Law/ You cannot contract out of the laws of Australia - how often do we see companies in court for breaching fair trading cause they had a sign that said they would not refund/exchange? Just cause you have sign you cannot cease to abide by the law. Having a good contract just in case you end up with that one client, who decides they want to dispute the terms, is a good start. It is best to be well prepared with a good contract wording to start with, than to have to argue in court the meaning of a sentence. Most of us will never end up in this situation, but there is always someone who does.

So as I said at the beginning, if you are going to write your own contract, or change a pre-existing one, make sure you have it worded well (legally) such that it will not be picked apart in court. There are probably thousands of variations of photographic contracts out there, some will be good, others less so. Why risk ending up having to pay compensation etc, simply cause a sentence in your contract was argued to be ambiguous, or not allowed under Law.

The other thing is professionalism and planning. If you act professionally (even if you are not a professional photographer), if you communicate with your clients well, and ensure past clients are always welcome to contact you, then if you keep those communication lines open, are honest and act in good faith at all times, you lessen your chances of being held legally accountable. In the end the contract is about 5 minutes of what (for a wedding) can be 40 hours or more of work. Even with a badly worded contract your chances of ending up with an issue are low, if you adhere to being professional, and act within the spirit of the contract.

In some states you are required to explain major points of any contract, thus for domestic portraiture you need to also tell the client that they own copyright, and that you are seeking to regain that, in the contract, not just have it written as a clause. But are you going to get in trouble if you don't, most likely not.

All we are doing, on an internet forum, is making you aware of what can happen (worst case scenario) and making sure you understand what is required to ensure a contract is well worded and sound. What you choose to do with all this information is your choice, cause you, as a signatory to the contract are legally responsible to uphold it, not us. So it is in your best interest that it is worded well.

I suppose in the end you have to ask yourself, are you 100% positive that your contract, in your words, is good enough for a judge,magistrate and lawyers, not to pick to bits and get you on a technicality? Cause if there is one, they will! But if you are 100% happy with the wording of your contract, go for it!

[ricktas]

Hence my comment
"But no doubt, this being a legal document, the rules of English grammar cease to apply and that phrase is acceptable in law."

I work in a world where I translate my expertise into a form that the client can understand and use, unfortunately lawyers seem to work in a world of their own, deliberately created to confuse their clients, probably so they can charge extra for their continued translations.


Edit - Like you say this doesn't really relate to my original question, but this is the interwebs so I'm forced to point out that you may be incorrect with your second point.

The Summary Offences Act 1988 (NSW) outlines a number of circumstances where a person’s privacy must be respected. For example, it is an offence punishable by a fine or imprisonment to photographa person to provide sexual arousal or gratification if the person is undressed or engaged in a private act in circumstances where a reasonable person would reasonably expect to be afforded privacy, and he or she has not consented to being filmed. A private act includes using the toilet, bathing and engaging in sexual activities not ordinarily done in public. Similarly, the Surveillance Devices Act 1999 (Vic) and Surveillance Devices Act 1998 (WA) make it an offence to photograph a "private activity" without the consent of the subject. - See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#headingh33

See the photographer could then argue cause they left the windows/curtains open, they were being exhibitionist and not seeking privacy. When it says things not ordinarily done in public, this refers to private spaces, like toilets etc, with the door shut. So if I photographed from the street cause they where having sex in their backyard in full view of the street, they cannot expect privacy. If they were having sex in their backyard with a 10 foot fence around them, and I took photos through a small crack in that fence, then they could have reasonably expected privacy. But again, do you want to get into court and have to argue that out with their legal team etc?

[Hamster]

Yep, agreed Rick. Which is why the path I've already decided to go is the common sense, integrity and professionalism route rather than the form signing route. When I started the thread it was with a view to finding out if the was a relatively simple way of putting a few legally binding conditions in place, but since it's not "relatively simple" enough, and in my situation it's not that big a deal, I will stick with the above. Plus I like @Dina (http://www.ausphotography.net.au/forum/member.php?u=21273)'s approach and should someone want to licence something commercially I'll give my model a shout and see if she wants to make some money. If things ever get serious I'll add in a lawyer generated contract/release for future work, but that certainly isn't an issue now, and is unlikely to ever be.

As for you boys and your Bigmas. Where you point them and at who is between you, your conscience and your lawyer. "Honest guv, there was a lesser spotted tree warbler between me and your client" :D

[William W]

. . . First question is, does commissioned mean some kind of payment has to occur? That's how it reads to me.

I agree with Rick’s answer re the word “commissioned” in that Act.

I also agree that it is a poor business choice to self-amend contracts or Model Releases found on the WWW.

*


But irrespective of the technicalities of the word commissioned the model could claim otherwise later, and another model may want to go into a TFP arrangement with me, and so a model release form is the way to go.

Yes a signed Model Release Form is my advice for all such work be it TFP or otherwise.

*


My question is, what if my model says, "hey I read something about a model suing a photographer for using a photo in an advert where she was depicted as having HIV, and there was another one about porn sites. This form you're giving me to sign says you can use this photo how you like."

I'd say she's got a point. So what assurances can I/do I give the model? Are all model releases the same and the model just has to take the risk? How do I respond to that question from the model? I can see how, from a non professional model's perspective this could be a bit scary and she might shy away from me coming at her with a model release form.

and


Anyone got any thoughts on the question re MY use of the photos and responding to worries that the model may have?

I do.

I wouldn’t and do not use the template form that you cited. I suggest that you do not either.

At the bottom of that template is clearly advises that it is a generic form and to seek professional, legal advice to address your specific circumstances.

Our Model Releases are tailored to suit our requirements and place conditions on our usage. We find those conditions neither cumbersome nor restrictive. And suitable restrictions on (your) usage would address the concerns that you perceive prospective models will have.

Another consideration is one’s experience and the ability to show that to a prospect as one’s track record – you might not have that at the moment so quelling the Prospect's fears might best be tempered with a conditional usage Model Release.

Apropos the point about Solicitors speaking a different language -I have not found that to be the case. I have found that a good, experienced Contracts’ Solicitor will act upon clear and precise instructions provided to them and come up with a non verbose and very tight Contract and Model Release Form.

Just to pick a small point about words and usage – to simply highlight a point about why it a poor business choice to self-amend legal documents:

All written contracts are in fact: “verbal”.

The differentiation that you were probably seeking was that which is between an “oral” contract and a “written” contract. Although that is just a small point made on a casual forum, such a slip might be more costly to you if you choose the wrong word(s) to use in self-made or self-amened contracts.

WW

[TeamGlenny]

I wonder if things maybe got misinterpreted in this thread.

Forgive me for my two cents, and I'm not a pro, but I am very interested in copyright and photography.

Firstly, ownership of copyright in the commission of a photo shoot.

I agree that if a photog is commissioned to do a shoot that is considered to be for private or domestic purposes, that is they are requested to do some portraiture, a wedding, birthday party etc the copyright is with the commissioner:

Exceptions
There are several exceptions to the general principle stating that the author of a work or the maker of a subject-matter other than work owns copyright:
Some commissioned works: If someone is paid to take or make a photograph, portrait or engraving for the private or domestic purposes of the person paying (the "commissioner"), for example wedding photographs, the commissioner owns copyright in the work even though the artist or photographer is not an employee. - See more at: http://www.artslaw.com.au/info-sheets/info-sheet/copyright/#sthash.xArtCxu8.dpuf

However, from the beginning, it was the photog approaching someone and the photog commissioning them, that is either paying them in cash, TFP, goodwill or otherwise. In this instance, copyright remains with the author or creator of said work, with or without a model release:

Ownership of copyright:
General principle
Generally, the author of a literary, dramatic, musical or artistic work owns copyright in the work.
Generally, the maker of a film, a sound recording, or a television or sound broadcast owns the copyright.
- See more at: http://www.artslaw.com.au/info-sheets/info-sheet/copyright/#sthash.xArtCxu8.dpuf

Unless copyright is transferred by written agreement - this can occur both ways such as requesting a wedding shoot that the copyright is transferred to the photog by explicit agreement:

Contracts affecting ownership
The general principle as well as the exceptions can be modified by agreement. It is good practice to have written agreements with all the contributors involved in your publication project to ensure copyright ownership is clearly determined.
- See more at: http://www.artslaw.com.au/info-sheets/info-sheet/copyright/#sthash.xArtCxu8.dpuf


But lets be clear - providing it is in/from a public space a photog can take photos of someone with or without permission and as creators of that work a photog could then make a book of those people and sell it without needing permission or a model release (though there is risk of defamation or similar if publishing a book of say "Sydney's Fattest Arses"):

Photographing people
There are no publicity or personality rights in Australia, and there is no right to privacy that protects a person’s image. Existing privacy laws are more concerned with storage and management of personal information and are of limited relevance to the present issue.
- See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.eWfkfGOL.dpuf

Now that you have taken your photographs you need to be aware that their use or publication may also be illegal when carried out in a certain fashion. For example, the subject of a photograph may seek an injunction to stop the publication of photographs that are indecent, offensive or demeaning - See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.eWfkfGOL.dpuf

Almost there because now we're getting to the crux of it and asking someone to sign a model release which is required for the purpose of commercial photography. Note: even if you weren't shooting for commercial purposes it wouldn't be a bad idea to get a model release because who knows what opportunities come up:

Photographing people for a commercial purpose
If you are using your shots for a commercial purpose, such as for an advertising campaign, you should obtain a model release form signed by the subjects you are photographing to ensure you have authorisation to use their image to sell a product.
- See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.eWfkfGOL.dpuf\

I often see people confusing commercial photography as the photog makes money from selling the image which is not entirely accurate - it is about said image used for the commercial endorsement of a product.

The law of passing off and the Australian Consumer Law
Complications arise if your photographs are used for a "commercial purpose" and you don’t have consent from the persons in the photograph. "Commercial purpose" involves using the photograph to sell something other than the photograph itself. So if you have taken a photo of someone on the street for an advertising campaign and it appears that the person is endorsing the product or service (when in fact they do not), you may be liable.
- See more at: http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.GPu3TJlV.dpuf

So for that you definitely should have a model release. Artslaw also have an example model release, I myself do not not how good/bad/or otherwise it is:

http://www.artslaw.com.au/sample-agreements/sample-agreement/photographers-model-release/


So, in my opinion, to the Op's original question:



You can take photographs of someone and you will own the copyright unless they commission you or you have an agreement to the contrary.

You can make money off the image itself, say by selling it in a gallery, or by putting it in a book, providing it doesn't defame their character (and they have a character to defame) without a model release - though getting one would probably not be a bad idea
If you want to offer the image for commercial purposes such as stock photos where there is the possibility the image could be used to sell a product or a service you need a model release. And in fact most online stock photo sites require model releases if there are people in photos that are identifiable.


My two cents, I'm not a pro, and while I read this stuff a lot you would do well to get proper legal advice if you are going to spin up a business.

More than happy to be corrected.

Team G

[William W]

A clarification comment stimulated by Team G post above:



Originally Posted by Hamster
But irrespective of the technicalities of the word commissioned the model could claim otherwise later, and another model may want to go into a TFP arrangement with me, and so a model release form is the way to go.’

Yes a signed Model Release Form is my advice for all such work be it TFP or otherwise.

*
There are two main reasons for my giving that as advice to the OP:

1. Although not totally future-proof it is very close.
The OP specifically mentions the situation should the images be valuable later. None of us has a crystal ball.

2. Perception is part of the reality.
If the Photographer has a packet of thirty nicely printed ‘Model Release Forms’ in the camera bag, (and a few completed from previous assignments) and I also implied that a new and upcoming business might include limitations on usage, then the Photographer will be way ahead of what might easily be interpreted as a fumbling buffoon attempting to explain what conditions will apply.

So, in addressing TeamGlenny's question regarding misinterpretation: I don't think that my response did - the question is essentially about best business practice and that's how I answered it.

WW

[TeamGlenny]

So, in addressing TeamGlenny's question regarding misinterpretation: I don't think that my response did
WW

Hi WW,

Please be assured I was not referring to your response, you obviously have much more experience in this area than I do (and I had to do a number of redrafts to try and make sure my facts didn't contradict themselves).

No my reference was more to the semantics of the photog commissioning a model, as opposed to was it the model commissioning the photog and ultimately where copyright ownership lay.

Team G

[ricktas]

You also have to be very careful with street photography. In that you take a lovely photo of a person on the street, but in the background is a large coca-cola sign. Incidentally at the time of shooting. You put that photo into a book, or publish it in some way. The viewer could perceive that the subject liked or endorsed coca-cola, which may not be the case. So whilst your intentions were not commercial, by association and photo elements, you have created that link.

Chances are you would win in court, but do you want to pay the legal fees to argue your case? Remember NSW is the most litigious place in the world. Yep NSW has a higher rate of suing, than states of the USA.

[William W]

. . . Please be assured I was not referring to your response . . . etcetera
No need to reassure me, but very kind of you to consider doing so.

I did not misinterpret your commentary.

If there is any error it is mine, so sorry for causing you any concern.

I read your very well researched, annotated and presented comments and used that as an hook to explain the rationale for my previous advice. Although I am not sure that the OP has read that advice, as no further comment has been forthcoming from him.

***

I was not actually directly commenting on the content of your post; but now I shall –

I think that you have in a nutshell “got it right” with the summary that you presented, but the point I was making is kind of like the conversation that I have had concerning the rules driving into round-a-bouts . . . it is one thing to know “the rules” but is often a poor choice to abide by them if the result will be a ‘prang’ with you being on the correct side of the law (prang = colloquial for Motor Vehicle Accident).

It’s just too much time effort and money: the same applies here.

It occurs to me that the OP wants to, or at least is thinking of starting a business – so the easy and safe and NON CONFRONTATIONAL path is usually the best to take in business.

On the other point that you make, I most likely do have more experience than you in this particular area – but note well that it was your several drafts and final commentary which stimulated me to further explain my opinion - and the combined effort of all contributors will hopefully assist he OP and also other readers.

WW

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You also have to be very careful with street photography. . . Remember NSW is the most litigious place in the world. Yep NSW has a higher rate of suing, than states of the USA.

Not sure who the “you” is to whom you refer- or if this is a general comment: the OP is in WA and Team G is in the ACT and I am in NSW.

In any case, I didn’t know that – so thank you.

I would like references if you could please supply: not because I am questioning the comment, but rather because I am interested in the statistics, especially as to WHAT TYPE OF litigation is most active. I guess that Workers Compensation Litigation might be in those stats ? ? ?

WW

[ricktas]

You = plural you..anyone who wants to know.

re litigation, just google 'is NSW the most litigious state'

[Hamster]

Although I am not sure that the OP has read that advice, as no further comment has been forthcoming from him.
WW

Yes, I read them (as acknowledged by the thanks). Sorry if I didn't do this fast enough but forum reading is usually reserved for when all the important stuff is done. No further comment needed really, it still boils down to, yes a model release is a good idea and getting a proper one from a lawyer is the way to go. All the clarification and comment around definitions etc just goes to supporting this.
I am not thinking of going professional, merely trying to find the best way to ensure no one feels aggrieved with any correct or incorrect future usage of the produced images and to, as you put it, future proof myself. Hopefully points made outside the topics of my original post will provide info to other members of the forum and hence are still of use to some and valuable contributions (e.g. refs to street photography).

[TeamGlenny]

I am not thinking of going professional, merely trying to find the best way to ensure no one feels aggrieved with any correct or incorrect future usage of the produced images and to, as you put it, future proof myself.

It's actually interesting (well I find it interesting cause of my copyright wonk) what can happen as a result of a model release and subsequently trying to sell the models image on stock photography site. Take for instance this article about incest and a girl marrying her father (http://www.news.com.au/lifestyle/relationships/genetic-sexual-attraction-18-year-old-woman-opens-up-about-marrying-her-father/story-fnet0gt3-1227188412830) on news.com.au. It features a stock image of a young girl embracing an older man. And while the caption does acknowledge that the photo is sourced from ThinkStock:


Outlawed ... The father and daughter (not pictured here) would need to move interstate to avoid laws that ban adult incest. Source: ThinkStock





The actual (not pictured here) part was inserted after the article was originally published.

I'm sure that girl signed a model release for it to be permitted to be used for unknown purposes, but it doesn't necessarily mean she gives up her moral rights (http://www.artslaw.com.au/legal/raw-law/what-are-moral-rights) as a performer. So there is the potential that she feels her reputation is being damaged by being pictured in an article about incest, regardless of the statement it is stock imagery, she may be able to do something about it.

Short version? A model release is not necessarily a catch-all for any possible future use, but it is still a damn good idea regardless :)

Team G - who likes to think too much

[Hamster]

It's actually interesting (well I find it interesting cause of my copyright wonk) what can happen as a result of a model release and subsequently trying to sell the models image on stock photography site. Take for instance this article about incest and a girl marrying her father (http://www.news.com.au/lifestyle/relationships/genetic-sexual-attraction-18-year-old-woman-opens-up-about-marrying-her-father/story-fnet0gt3-1227188412830) on news.com.au. It features a stock image of a young girl embracing an older man. And while the caption does acknowledge that the photo is sourced from ThinkStock:



The actual (not pictured here) part was inserted after the article was originally published.

I'm sure that girl signed a model release for it to be permitted to be used for unknown purposes, but it doesn't necessarily mean she gives up her moral rights (http://www.artslaw.com.au/legal/raw-law/what-are-moral-rights) as a performer. So there is the potential that she feels her reputation is being damaged by being pictured in an article about incest, regardless of the statement it is stock imagery, she may be able to do something about it.

Short version? A model release is not necessarily a catch-all for any possible future use, but it is still a damn good idea regardless :)

Team G - who likes to think too much

Yes, this is why I can understand a model being concerned about what she signs (or at least I would be if my modeling career ever takes off).
Contractually, it seems to me to be almost an impossibly thin line to walk such that a model's likeness is not exposed to some kind of inappropriate (in their eyes) use and a photographer can make money.

[William W]

. . . re litigation, just google 'is NSW the most litigious state'

Yes OK, thanks. I thought you might have had access to source documents, that's what I meant.

I did something like that within a few hours anyhow.

Also asked a couple of Solicitor friends. Seems that we uncovered that NSW has the highest divorce rate (as a % of Population) too, and the most bitterly fought legal cases in that genre . . . oh well . . .

WW

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Yes, I read them . . . No further comment needed really . . .

Thanks.

WW