Back to Basics: Model Releases

J.D. Obenberger

There is an almost intuitive knowledge among those members of the adult entertainment community who create images for Internet publication that model releases are necessary for some purpose or another, but there is a great deal of misunderstanding and confusion about what, exactly, model releases are. Perhaps 20 times per year I will get an email or phone call asking to purchase a model release as though it were an item of inventory that is sold over the counter or delivered by email. (Indeed, there are lawyers who, at least in the past, sold them in exactly that manner.) Since the adult Internet took off in the 1990s, the residue of bad misunderstandings about model releases blights the roadside of the Information Superhighway and promises, at least in some cases, to bring the traffic of at least some adult Internet truckers to a halt.

I believe that during the next coming years, a trend will emerge in which models and performers will increasingly sue producers and publishers — especially those who publish content who, without knowing it, have acquired insufficient rights to sleep securely. The early waves of this assault against producers and publishers have already begun in lawsuits concerning disease and the risk and fear of having acquired disease; the next forward edge of the battle area will be the probing of more remote plaintiffs to see just how far up the chain they can assert liability or vicarious liability in search of deeper pockets. This is likely to encourage a wave of former performers who want their old content down and who are assisted by clever lawyers in search of both technical defects and deep pockets.

To pay good money for the publication of images without its accompanying paperwork, relying entirely on an indemnification agreement, is never a smart decision and can eventually lead to a prison term if Section 2257 is implicated.

As to the latter, there have already been lawsuits filed and quiet but very expensive resolutions involving Internet publishers who published images acquired from sloppy content producers. One photographer never bothered to secure any valid written release and who licensed it to a publisher anyway. Historically, many Internet publishers have failed to undertake any kind of independent publication clearance or investigation. Some, if not most, relied on nothing more than an indemnification clause in their agreements with the photographers. But indemnification is pretty worthless if the indemnitor lives commission check-to-commission check and possesses no substantial assets — or if his only asset of consequence is a house in Florida that can’t be attached by a court to pay a judgment. The smartest publishers mandated the use of their own forms, good releases, by their contract photographers. Smart publishers who acquire a license for the exploitation of existing content will undertake a solid and comprehensive prepublication clearance that hits all of the areas of significant potential liability — copyright, the law of publicity and privacy, 18 U.S.C. § 2257, and obscenity. While no remote investigation can eliminate all publication risk, the discovery of such obvious and critical defects as the nonexistence of any kind of release, or a mismatch of signatures or dates or resemblance between ID card and video, can go far to protect a publisher’s assets. To pay good money for the publication of images without its accompanying paperwork, relying entirely on an indemnification agreement, is never a smart decision and can eventually lead to a prison term if Section 2257 is implicated.

When I was a captain in the Army JAG Corps, stationed in Germany, I defended and prosecuted charges in about 20 accusations of sexual assault. The large majority of the allegations of assault were concocted for one reason or another — Sometimes because a husband was likely to learn about a voluntary liaison, sometimes out of shame for extremely slutty but voluntary behavior, and sometimes just to become the center of attention and sympathy. I saw other women, who were true victims of heinous crime, so traumatized or afraid of how others would react, that they never made a report to law enforcement. “What others would think” seemed commonly to be the hinge of the decision about how to proceed both to the women who were actually assaulted and those who fabricated a criminal accusation.

Through this experience, I think that I learned a bit about how women are likely to react when they are held up to ridicule and — criticism about their sexual behavior, and I have applied these lessons when asked to deal with takedown requests and demands from performers — often after their sexual behavior has become quite public and was seen on video by persons — close to them — they didn’t count on. One can expect that a performer who smiled when she was paid and said she’d be delighted to come back for another shoot will sometimes sound very different after being confronted by her family; you should be prepared to hear some outrageous untruths that she offered to explain the shoot to those family members. The release and its execution are an important part of an involved protocol that should be engineered to deal with the false claims that some performers inevitably will hurl, accusations that sometimes amount to allegations of criminal conduct that might threaten a photographer with prison.

All of this makes it critical that photographers undertake very special protocols to establish that each performer was 1) exactly who he or she said he or she was, 2) of the legal age represented, 3) in full possession of his or her faculties at the time of each shoot, 4) not the victim of any fraud or deception, and 5) under no coercion or duress at the time of videography. One small example (among many others!) is that a smart photographer will require of each performer to generate as much of his or her handwriting in documents associated with the shoot as possible and to preserve it, captured in those documents, to provide enduring evidence of the performer’s fine motor skill at the time of each shoot. (This necessarily implies new documents for each shoot, which is a prudent practice for this and many other reasons.)

You may expect that some performers, after spending the money a photographer paid them, will eventually become adversaries, demanding additional compensation or a takedown, or threatening a lawsuit or a criminal prosecution, and that they will angle to find one basis or another in order to leverage what they want. It is a smart photographer’s mission to engineer every shoot in contemplation of such tactics, lies and threats, to protect himself, his licensees, and his content. A comprehensive release, written in contemplation of exactly what he plans to do with the content, and executed in a technical manner furthering the interests of the photographer, is one essential part of that engineering.

The most fundamental thing to understand about releases is that they are read strictly against the photographer who proffers them — and courts are likely to strictly limit them to the specific release terms expressly and unambiguously laid out. As one of the most important cases about releases stated, if a release does not expressly grant the photographer a right to combine an image with another to make a composite, he does not acquire that right through a release, and all rights not released remain exclusive to the model or performer.

This doctrine can have catastrophic consequences in the routine commercial use of adult content materials — particularly arising from the typically hyperbolic and false descriptions frequently made concerning amateur or one-time adult performers. The use of a release written for general commercial purposes is unlikely to grant the photographer or his licensees the right to describe a performer (in a large, blinking, and nearly fluorescent font) as a “lesbian ass slut,” “cum whore crack addict,” or any of the other less-than-flattering inventions created by publishers for a marketing purpose — and to the extent that they are untrue, in the absence of release language permitting such falsities, they are actionable.

There are many reasons why the releases which are appropriate for adult Internet use will require many contract terms special to adult commercial use, and this is just one example. Nor is there really any master template suited for all kinds of adult content; the release a photographer uses needs to be adapted to his purposes. A release for very hard content will certainly contain terms essential to that purpose that are both unnecessary to a soft solo girl video and likely to send her running to the hills if she reads it. Not all model releases are created equal!

Indeed, the kind of release for the commercial use of still images is sometimes wrongly used for video. In video, the performer who is depicted is more than a model. It is not merely her “identity” or appearance that is exploited, but her performance. It is unusual for adult content to be formally scripted in the modern era and this inevitably leads to the conclusion that the performer has not only a right of publicity concerning her likeness and voice, but also a copyright interest in his or her performance and dialog. Unless a release specifically deals with copyright, of course, the copyright remains her property, not that of the photographer.

Believe it or not, content has been created and published that is supported by releases which do not amount to a contract. A consent that exists outside a contract can generally be revoked at will — without consequences to he or she who consents — but with potentially catastrophic consequences to the publisher. There are those who truly so detest lawyers — and who so completely view lawyers as unnecessary social parasites — that they will insist that they are competent to craft their own releases and other legal documents.

In practice, they often steal forms from other websites and then adapt them to their own purposes. The provenance of the form they steal is often completely unknown; it may have started with a valid release in contract form or it might also have been home brew with some apparently fancy legalisms thrown in. By the time it gets several generations down the pike, verbs and pronouns go missing, entire words are inserted or deleted that gut legal effect, and sometimes even homonyms are substituted for words, resulting in gibberish.

In any of the iterations of the release, language critical to contract formation may have disappeared without a trace, contracts require consideration — legally enforceable promises must be given in exchange for money or something else of value, which might be another promise. I’ve seen such agreements that contain no consideration and which are entirely unenforceable as a result.

The effects and consequences of unilateral cancellation of a publication release have not been extensively litigated, either in the context of a valid contract or otherwise. The issue eventually may get expensively litigated in one forum or another, probably accompanied by allegations of fraud or duress, inasmuch as nearly 20 of the U.S. states have enacted laws that require a written release for the commercial use of anyone’s identity, and most, if not all of them, provide for an award of attorney’s fees to the prevailing plaintiff.

Amateur user-submitted content frequently appears on many Internet sites. Unless they depict some couples who are very active posters, using different names each time they post, and fluent in the many languages they use in posting worldwide, it seems likely that it is not the couples who created the content who are posting it all over the Internet. It would be surprising to learn that the sites which publish it possess any kind of paperwork concerning such a video. These couples are likely to possess a copyright interest in the videos. Moreover, they are likely also likely to possess a right of publicity claim concerning the commercial use of the video.

For a long time, it was thought that the state law publicity claim for Internet publication was preempted by Section 230 of the Communications Decency Act so that the Internet publisher of true user-submitted content would bear no liability for the publication. However, a split in the courts has emerged, under which some courts have begun to view the right of publicity as an “intellectual property right” which is not immunized by the CDA, thus potentially rendering the online publisher of user-submitted content liable to the depicted couple in the absence of their valid release for commercial publication.

Eventually, one or more of these couples — or lawyers who work with them in one of the twenty or so states that require a written release and provide for attorneys fees — is likely to attempt to disgorge some of the profits from tubesites and others who publish the material.

The wheel is still spinning concerning the extent to which Section 230 may immunize those sites from liability. Even should the wheel tip in the direction of immunity, the smart operator of user-submitted content sites should be aware that risk of liability may arise from its own participation in or narration about the post.

What a model release appropriate to any Internet content producer’s or publisher’s use should look like emerges only from a careful analysis of the liabilities they face; that analysis suffers dramatically in the absence of a trained legal professional particularly experienced in this field, because the risks are not always apparent and because some of the risks now emerging and of a character to be most dangerous in the future are only beginning to appear now. Knowledge of those risks comes not only from the cases and statutes, but from actual developments, including letters and contacts from lawyers representing parties adverse to the photographer or publisher, sometimes the government. It is always a mistake to appropriate the release of another photographer and it is generally a mistake to create your own.

The publication of user-submitted content, without releases and other paperwork, possesses special risks that are, at this time, difficult to comprehensively evaluate. Releases are a vital component in an engineered protocol designed to protect the photographer, his licensees, and his content from many risks, most importantly from the model who eventually becomes disgruntled and demands a takedown and/or additional compensation.

Joe Obenberger has aggressively defended adult businesses of every kind, worldwide, for 20 years from offices in Chicago. He can be reached at obiwan@xxxlaw.net.


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