On the Validity of Model Releases and Compensation

[St Marc]

During my forays into the wild world of Internet photography, I have often chanced upon discussions of model releases and their presumptive validity. One frequently encounters an assertion along these lines:

"Models have to get 'reasonable pay' for a release: if the photographer doesn't pay the model a reasonable amount relative to the profit they make from the photograph, the release will be held invalid in court."

Today I was sufficiently irritated by the latest incidence of this declaration that I decided to investigate. For those of you who don't know, in my daylight incarnation, I am a corporate attorney specializing in intellectual property law. So I have a lawyer who works cheap and has unlimited seat access to Lexis/Nexis, the primary electronic legal research system.

I conducted a careful investigation into the law of my own home state, Illinois, as well as a more cursory investigation of the law of New York and California, which obviously comprise the lion's share of the photography market. If you went to *hire* somebody to do this search, it would have been four figures, easy. And the first figure wouldn't have been a "one."

My findings?

In Illinois, unless the release really sucks, or the client exceeds its terms (a lot of them are time-limited and dingbat clients keep using the pics) the model loses every time. Every Federal case cited, including those from other circuits and the USSC, is in agreement. As far as arguing to compensation, in one case, the compensation wasn't even set forth in the agreement, and the court still threw out the model's complaint.

I did not research other states exhaustively, mainly because, as I said, all the incidentally cited Federal cases were in agreement. If there were any major contradicting cases, they would have at least been *cited* by a plaintiff somewhere, and there weren't any. I looked up, briefly, the NY and CA right of publicity laws. They are substantially similar to the law in IL. The NYS Court of Appeals (the highest court in NY, long story) has even explicitly held that a model release need not even meet the minimal requirements of contract formation. It need only be reasonably construable as granting written consent to use one's likeness for the purpose at issue. There ain't *no* way to go from that to "if the model doesn't get reasonable pay compared to the photographer/client's profit, the release is no good." There was even a case where the model's *agent* signed a release that the model didn't agree to, and it was held binding.

The three biggest IP states are in substantial agreement. The Federal courts show no inclination to intervene. From now on, whenever anybody posts the idea that a model's compensation is somehow relevant to the validity of a release, I will respond as follows:

"Your position is not supported by any known case or statute law. Kindly provide specific citations to relevant statutes or legal precedent before making such a claim. Further posts which do not contain such citations should be disregarded by the reader."

While I am an attorney, the above should not be construed as legal advice, and persons with a genuine issue of law should consult a licensed attorney familiar with the question in their jurisdiction.

M