Misconceptions on the Rights of Using Images

Jimmy
Thomas

I've been hearing from a few authors and cover artists that they've found male models online and have asked them if they want to be on their novel covers, or the male models had contacted them and said they can use their modeling images for free for their novel covers.... This is a huge copyright infringement lawsuit waiting to happen!

About 99.99% of the time, models do not have the rights to sell or publish the images they appear in. It usually takes a well-established veteran in the modeling business to know this, as so many models are just people who have their photos taken and post them online. Does that make them a model? Well let me ask you another question. If you take a photo of me, does that make you a photographer? They don't know the legalities of the modeling business, they think that because the image is of them that they are able to do what they want with it. Understand this, if I take a photo of you, that is my photo, I own the rights to it, not you. That doesn't mean I can do what I want with it, I need your written permission to be able to publicly post it, sell it or publish it commercially. That goes the same with you needing my written permission to do the same. This permission is called a "Model Release".

A Model Release is a written agreement/contract that releases the model's rights to require the photographer to get the model's permission each and every time they want to alter, edit, manipulate, post, sell, publish, use the image with other images, with the model's name or a fictitious name, in film, video, DVD, etc., etc. Not all model releases say the same thing, but most (a standard model release) do, and are always in favor of the photographer since they are the one writing up the document. They write their releases so that they have every option available to do anything and everything with the images from that photo shoot, without the model having to approve each and every use after the model signs the release. Most models don't read their releases. They email back and forth a few times with the photographer they haven't even met yet.  They think the photographer seems very nice, so why would the photographer ever do anything to screw them over *eyes rolling*.

In the online modeling world, photographers are photographing models left and right... for free. Whether to build their portfolios, to get hot models into their portfolio, or to gain experience, and since photography is a known profession, they also photograph people (aka models) to sell the images anywhere and everywhere, without the model even knowing. They are able to do this because the model release they created allows them to, which again, most models don't read, they just sign them and expect (assume) the photographer will notify them if they find a chance to sell and/or publish their images, and then split the profits with them. *Clearing throat*  Wrong! That is why they write up the model releases, so they won’t need additional permission or approval once it has been signed!

Model releases are typically beneficial to, and solely protecting the photographer. Photographer's don't write them up to give the model the advantage or help benefit the model. Modeling and photography are businesses, even if they may have started as a hobby for some. The hobby grows and improves, then various ways of making money from them is realized. So, photographers post their best images on their portfolios to advertise their talent for hire. They have full rights to do whatever they want with the images,  whether to sell them on stock image websites, to cell phones and instant messenger programs for background skins, or to various magazines as editorials for articles, etc., and the models may never even know about it or profit from it!  The photographer has their signature which allows them to do whatever they want with the images without having to inform the model.

You know those Terms and Conditions on social networking websites that you, without hesitation, check-off as "Read and Agreed", thinking they are just blah blah blah legal babble? Think again. Many say you are giving them permission to use any and all personal, private, even billing information, as they wish, even to sell it to other companies. Have you ever read the Terms of Service on Pinterest that is so quickly checked off as "I Agree"? Posting images on websites like Pinterest, allows others to take/save your images and use them. Even if the images were not yours to share, once they are posted, millions of others then have free access to them, and can/will take/save them and use them as they please.

Pinterest Terms of Service:
How Pinterest and other users can use your content...
Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users.


Back to the models... So many models think because they are in the image, that they can do what they want with them because the images are of them. They don't read model releases, they don't learn the business, they don't do their homework, they don't question model releases if they do read them, because the photographer told the model that it's a standard model release and that they are only going to be posting the images on their website to show the work they can do. Whether they honestly had those intentions from the start, or if they were just saying that to get you to just shut-up and shoot depends solely on the integrity of each individual photographer.  Down the road many have learned all the ways they can make money from the images they shot of you (while you don't make anything from it), even though the initial intention was just trade, or, “Time For Prints” (TFP). The photographers are looking out for themselves, protecting themselves, and giving themselves the option to just use the images on their portfolio, or to use and sell them as they wish.

In these standard model releases, there isn't a single thing benefiting the model, protecting the model, or even allowing the model to post the images anywhere publicly, that thought is just assumed,  or it may have been only verbally discussed that the shoot is pure trade - where both the model and photographer are doing the shoot to be able to post and display the images on their own websites to show their abilities in hopes of growing their profession. It's only your business-minded, well-established, veteran models who refuse to sign a photographer's standard release, as they know the harm, loss and risks it can cause them. They require the photographer to re-write their model releases or edit them, before they agree to shoot with them. They ask to see their model release prior to even setting up the photo shoot, so they know who has the rights to do what with the images ahead of time.

 As an author or cover artist who approaches models online, or who are approached by models online, you need to make sure that they have been given written permission by the photographer in the model release they signed. Do they even have a copy of it?  Can they legally sell and publish those exact images that are being desired for purchase and/or publishing? Without that, if you use the image(s), don't be surprised if the photographer sees the images they shot, on the model's website or a book cover, then sends you a cease and desist letter to remove all the covers with the images that they shot of that model on them, from any and all public websites, book store, etc., immediately.  Then watch for a copy of their lawsuit filing to be served, as they sue you for copyright infringement, for the profits you made from the book sales their images were on, damages, attorney and court fees, etc.

This is why I wrote my own Photo Shoot Agreement to take the place of photographer's model releases for whenever I did a TFP photo shoot in the past. In my photo shoot agreement, it covers the photographer as well as myself. It's so easy for a photographer to verbally say they'll give you images from your TFP shoot, then never follow through since it was never put down in writing. Or they'll send you really small images with their big, thick watermark copyright logo across them, and when you ask for the larger images with a smaller copyright logo, they say "Sure, no problem. Those are $10 each, $25 if I touch them up for you."

So, before you get all excited that a model you like is offering you their images to use on your cover(s), whether for free or pay, first assume that they do not have rights to sell them or have them published, and ask them if they have written permission in their model release to sell and/or publish those images, from that photographer, and if they are able to provide you a copy of it. Chances are, you won't hear from them again, because they are thinking, "What did that model release even say that I signed and didn't get a copy of?"  More than likely, they will contact their photographer to ask them, the photographer will then tell them that they do not have permission to sell and/or publish those images, but if the author or cover artist wants to contact them directly to discuss the sale of any of their images for $1,000-$2,000 each, they can.  Most photographers don't know about stock photography for models and their low prices, so they want top-dollar for each and any of their images.

This is another reason www.RomanceNovelCovers.com, provides the romance novel industry with the desired style and theme images they need and want, without the hassle of worrying about random models (aka, people who have gotten their photo taken) getting you in trouble. My stock image website is full of images that show you the high quality RNC provides. I personally produce and direct all of the photo shoots, as well as select all the final images and post them cleaned, edited and cropped to best capture the beauty, sensuality or power of each image. Along with having 12 years professional experience as a working model,  I am analytical and observant, artistic but also a perfectionist.  I also have 20+ years experience in architectural design, which has taught me to focus on the visual balance of a structure; same as with an image.  Crucially important is the knowledge of how to use light on a male to emphasize muscularity, and what to emphasize on a female model - especially what to clean and edit in images of people.

All of that covers one of the two necessary elements in the ability to know what is most desirable in photographs; the technical aspects of creating and selecting the best images as for composition, structure, balance, shapes, colors, angles, poses and form. The other element - especially for romance novel cover images - is to know which images have the feeling, the emotion, the passion that not only grabs the viewers eyes and attention, but captures their subconscious,  and allows them to feel the feelings being expressed within those images. This comes from being a true  a born romantic and naturally sensitive to emotional feelings. This helps me discern what romance novel readers want to feel when they read a romance novel, I know what will capture their emotions when looking at novel covers, I feel the same way when I look at them... I may be an alpha-male, but I’m also a Pisces, a feminine zodiac sign! ;)