355 PROTECTING THE MODEL'S RIGHTS
November 21, 2000
For those applying technology to business, "speed and ease of use" are the prime
motivators. Everything else is secondary. Technologists insist that every sales
transaction must be fully automated and human interaction must be removed from the selling
process. At first glance this appears to reduce costs and provide greater customer
service, but in stock photography it may lead to a great disservice to the models -- and
by extension, photographers and everyone else in the selling and buying chain.
One fact implicit in most photographer/model relationships is that in exchange for being
allowed to use the model's photograph the photographer agrees to make his or her best
efforts to see to it that the images are not used in a way that might be damaging to the
There may be a release that offer the photographer some legal protection, but seldom is
that release so air tight that flagrant
violations of the model's human rights are not protected. The courts get to decide what
In the past protection against such misuse has been provided by the dialogue that took
place between the seller and the prospective purchaser.
It seems a very small step from a sales person questioning the buyer about the potential
usage to fully automatic transactions. But automatic transactions open a very wide door
to the potential for misuse. Photographers should be concerned about both the legal and
moral issues such a change raises.
Uses That Could Be Problems
Suppose you take a photograph of a loving father and daughter in the park -- warm, family
feeling. Dad signs a release. In everyone's minds, this is a "family" photo that
portrays a positive feeling and healthy family relationships. Then along comes a stock
buyer who attaches a totally bogus caption about incest or abusive families to the image.
Suppose you take a picture of a professional financial planner at work in her office.
This person signs a release allowing use of the picture as stock. She might be very upset
if the picture is used in a brochure of a competitive financial planning company leaving
the impression that she is their employee. Maybe this is a reason for always using
professional models who are not involved in any way in the occupation being illustrated,
but is everyone doing that?
What if a photo of a wholesome young woman is used in an HIV drug campaign, on in
connection with drug addiction, alcoholism, sexually transmitted diseases, or illiteracy.
Any use in connection with prescription drugs, tobacco, or liquor can present problems if
that was not the original intent for which the photo was produced. Imagine a couple of 19
or 20 year old Baptist girls from Texas showing up in an ad for a lesbian travel resort.
Use of a photo of a senior citizen could lead to embarrassment if it is used in relation
to incontinence products, or implies that the person's life has been changed by taking
certain vitamins. The copy attached to any photograph can dramatically change the
original intent the photographer had when producing the image.
Celebrity photographers have a different, but no less important, control problem. Many
are given access to their subjects on condition that the images will only be used in
positive ways. Usually there is a blanket prohibition on selling such images to the
tabloids. Some may consider this manipulation of the press, but the subjects have a right
to exercise such control if they are allowing access to their private lives.
What about non-people pictures? Car photographers get access to the newest models on
condition that they agree to certain rules. Most car companies will sign a property
release for a specific use
not a blanket license. In other words, if Mobil Oil (advertising their superior oils) or
Union Bank (advertising their car loans) wanted to use a shot of a Corvette for a national
print ad campaign, Chevrolet would be happy to sign a property release for each of those
campaigns. And Chevrolet would not charge the photographer or the client anything for
their time. They like the publicity but they have to make sure that images of their
vehicles are used in a positive way.
The list could go on and on. It is almost impossible to develop a definitive list of all
uses where "sensitive issues" may be involved. Uses need to be examined on a case by case
basis. Often it is the text connected with the image, not the image itself, that makes
the use objectionable. Thus, when the buyer says, "I want to use image XXX," it is
important for someone representing the seller to ask a few questions about how the image
will be used, and be prepared to say NO.
Without such an intermediary, sellers who make their images available through automatic
transactions must have in their possession model and/or property releases that allow then
to license rights for ANY USE WHATSOEVER to all available images.
While obtaining model releases has been standard practice among photographers for years it
is questionable whether most of these releases would allow the images to be used in ways
that would embarrass the model or damage his or her reputation. The most innocuous photo
can be used in ways that will upset the model.
An iron clad release can still be challenged in court. The plaintiff may not win ... but
legal fees can be staggering.
Not only do photographers have to worry about legal ramifications to themselves, but I
believe they also have a moral obligation to try to protect the interests of their models.
This is particularly true when you are using amateur models who have little understanding
of the wide variety of uses that might be made of their image.
At the very least, it is important that legal language be attached to all photo licenses,
and be made prominent in the on-line selling process, that clearly obligates the buyer in
the event there is a misuse and says something like, "No model releases or other releases
exist for any Content unless the existence of such release is specified in writing by the
Rights Holder." Most who favor technology solutions don't want to do this because they
view it as not being a "customer friendly" act. They want to place the liability on the
photographer and the model.
(In fact it might be a "customer friendly" act because they would be helping to keep the
customer out of future messy legal problems.)
Nevertheless, many agents are looking to simplify their lives. They can accomplish this
by only handling images for which there are no restrictions. They want to be able to sell
anything they have for any purpose and not have to worry about it. They are also opposed
to obligating the buyer through the license and requiring the buyer to indemnify the
agency and photographer unless they have obtained a copy of the release with specific
permission for the intended use. The easier alternative is to require the photographer to
provide the protections and require the photographer to indemnify the agency and the buyer
if the model happens to complain.
The lawyers at Getty and Corbis (and maybe other agencies) have developed releases they
believe will fully protect them in the event of a misuse. No model in their right mind
would sign these releases if they fully understood the implications. What is hoped is
that the model will sign the release without a careful reading of understanding, or that
the photographer will be able to con the model into agreement. Is this the kind of
relationship photographers want to have with their models?
If photographers have trouble getting releases, it makes no difference to the agency
because they have nothing invested. They just limit the images they will accept to those
that are accompanied by releases that will protect them and their customers.
Problems Are Rare
Problems with inappropriate uses are rare and only occur in a small percentage of uses.
But a small percentage can cause big legal and ethical problems.
The process of checking on uses is not an absolute guarantee that legal problems will not
arise. Photographers should always get the best release possible and clearly explain to
their agent any restrictions they want to place on the image.
Are Fully Automatic Transactions Necessary?
The fundamental problem is the belief that in order to be e-commerce enabled you must be
able to offer fully automatic transactions - start to finish.
If this is necessary then the only alternatives are to revove your images from the market
or to do what you can to protect yourself from legal liability.
However, there is a big question as to whether this is really necessary. Buyers of rights
protected images want on-line search and on-line delivery. They also seem to like to talk
to a human sales person rather than purchasing automatically. If that wasn't the case
Getty Images wouldn't need more than 665 telephone call center personnel (more than
one-quarter of their total employees) to handle sales transactions.
If we accept that currently many buyers want to talk to a sales person, in the future
won't they insist on being able to complete transactions without negotiations? I don't
think so. I can't prove it, but consider the following.
There is a lot of evidence that the reason buyers embraced RF was because it made
delivery, and searching (now that it is possible on-line), easier, because it was cheaper.
Many traditional stock agencies missed the boat in the early 90's because they weren't
prepared to deliver images digitally, and because the didn't market as agressively, not
because they wouldn't sell at low prices.
The recent failure of SuperStock's Express Pricing is a notable example that a simple
pricing structure is not enough to bring in customers. Another indicator is that recent
price increases instituted by the RF producers have not reduced the number of customers.
Price is not the issue.
The number one thing buyers want is choice. When they figure out that a "no negotiation
rule" reduces the number and quality of models who are willing to let their images be
licensed as stock, they will look for other options rather than just buying the limited
choices available with automatic sales. In order to compete sellers will need to provide
digital search and delivery, but they won't have to give up negotiations.
I believe buyers will be happy to spend a little time discussing their project, and
supplying information about the potential usage, rather than accept limited choice. In
such conversations buyers can also learn about other pervious uses of the image.
Even if it turns out this is not the ideal situation for some buyers, can photographers
afford to take the financial risk, and risk of their models reputations to offer an
automatic pricing systems? The liability issues make our product different from the vast
majority of other products that will be sold effectively through automatic pricing
Interestingly, technology can provide a route to greater protection for the sellers and
the models, but not via automatic sales. As we move more in the direction of on-line
search and the tracking of sales there are some neat and simple technological solutions
that provide for easier tracking of restrictions.
In the past each seller had their own separate database of information. Large agencies
might have fifty or more sub-agencies selling the same image around the world. Not only
was it necessary to supply dupes of these images to every office, but the information
about each image also had to be duplicated and kept up to date, if every office was to
remain current on usage restrictions. Without centralized databases this was an
impossible task so everyone headed in the opposite direction of requiring absolute control
and absolute protection upfront.
But, not centralized databases are possible. Getty and Corbis have a single database for
all information about sales. All licensees will access the same database. Agencies like
Masterfile have all of their sub-agencies supplying updated sales information to their
master database on a daily basis.
If the usable image file is only available in one location and there is a single database
where sales information about the images is updated daily, it is easy to build into that
database the restrictions on any given image.
The simple rule is that if there are any restrictions attached to a particular image
number then that image can not be licensed automatically. In such a case the buyer would
have to call the appropriate office and negotiate the usage. The sales person for the
agency could input the image number and get a list of all restrictions placed on the
The vast majority of people images in stock agency files today should be tagged as not
released for "Sensitive Issues". At that point some human on the sellers side would have
to ask some questions about the use and make a judgement about whether it might be
sensitive, or not. Based on this information the sales person could then decide whether
the image could be licensed for the use requested, or not.
The default search would be to include all appropriate images and only after an image had
been selected would the customer learn whether or not the image could be licensed
automatically. Customers would also have the option to search only for those images which
had no restrictions on usage.
Some might suggest that customers should be given access to the "restricted use" database
so they could determine for themselves if the restrictions apply. I would not be
comfortable with this approach. I believe the buyers who want to use images in sensitive
situations are exactly the people who will say, "Why would anyone be upset at the way I
intend to use this image."
The big downside to this approach from the point of view of those favoring technology is
that they will continue to need human negotiators manning the phones who are knowledgable
and well trained. These are the people they had hoped to eventually eliminate and replace
with hardware and software developers.
FPG's New Policy
Recently FPG's announced a new policy on "Sensitive Issues" and the type or releases they
will require in the future.
Effective immediately, they have decided that they will no longer accept images unless
they are backed by a release that meets their minimum requirements for sensitive issue
uses. Use of these new images will be allowed for any purpose whatsoever without any
Their terms and conditions will continue to prohibit clients from using images in a
defamatory or pornographic manner, but they are amending their back office procedures and
revising their Online Licensing Agreement to eliminate the requirement that the client
obtain prior clearance for sensitive issue uses.
In a letter to photographers FPG says, "We have devoted a considerable amount of time and
resources to carefully examining this issue in order to arrive at a decision. The primary
reasons for retiring the policy are detailed below:
"The practice of going back to the photographer or the model for additional permission
calls into question the validity of the releases themselves.
"Having the Photographer sign off on a Sensitive Issue usage on behalf of a model may
place that photographer in a position of liability.
"Requiring the photographer to go back to the model for signature is cumbersome and
sometimes impossible when the release, if it meets our minimum requirements, is in place
to cover all uses, including sensitive issue uses.
"And additional special clearance step represents a considerable disadvantage in an
e-commerce environment where the client's experience must be as fast, easy and as seamless
as possible. As is true with any e-business; optimizing the client's on-line experience
They believe that since a release, in and of itself, represents the model or property
owner's specific consent, it is not judicious to ask them, or the photographer, to give
consent a second time.
Their lawyers believe that elimination of the sensitive issue policy not only streamlines
the licensing process, but it reinforces and protects the intent of the release as proof
of the specific agreement between the photographer and model or property owners.
Photographers have pointed out that this policy is unworkable from their point of view and
some have indicated that as a result of photographer complaints FPG may be backing away
from this new position and returning to the old strategy of checking with the
photographers and getting a specific release for each sensitive issue use.
In my opinion this is wishful thinking on the part of the photographers. FPG, TIB and
Stone will continue to push for releases that relieve them of all obligation, UNLESS Getty
Images changes its overall policy toward automatic sales. They may re-group, but they
will keep coming back with slightly different versions until they get enough photographers
and models to agree. They must have this protection if they are going to make images
available without any checking and that is their goal.
If photographers produce images and don't supply an "adequate" release, the images will
simply be rejected as not suitable for marketing. In my opinion this is a signal that not
many of the existing people images will be selected for the FPG or Gettyone.com sites.
Getty Images goal seems to be to remove all risk to the buyer, no matter how irresponsible
that buyer might be. Since they don't want to accept those risks themselves the only
alternative is to lay the legal liability on the photographers and the models. This is
basic fundamental issue for them unless they dramatically change their business model.
They may back off from their current position for a while, but they will keep coming back
to it because their business model demands it.