Discussion on Model Releases (or lack thereof)

[garou12]

I have all along been talking about Singapore law - if this was not clear from the outset, I do apologise I do not proclaim to have indepth knowledge of laws in US and hence, express no opinion on them.

I'm not sure if Randy is applying his knowledge of US law to discuss law in Singapore or otherwise; and I'll leave him to clarify that.

yea that needed clarification...

 

[TMC]

Now I know why Law Suits take so long to settle, no one can decide on who is reading the passage right :bsmilie:

 

[vince123123]

That's often true Although the apparent length of the lawsuit is not so much due to "ding dong ping pong" from both sides, but more of the procedures and milestones stipulated by law which have to be complied with, before reaching the trial/hearing.

Although in lawsuits, usually both sides will have to provide case authorities to substantiate their points of view. A party who relies on mere arguments without authorities is much more likely to lose a case than a party who has arguments backed by authorities.

The problem usually comes when there are conflicting case authorities (ie each side produces cases which appear contrary to each other) - then the judge need to look at both, decide how to reconcile or refuse to follow one of them and endorse the other.

Now I know why Law Suits take so long to settle, no one can decide on who is reading the passage right :bsmilie:

 

[CYRN]

Now I know why Law Suits take so long to settle, no one can decide on who is reading the passage right :bsmilie:

Reference to the portion quoted by vince123123, he is correct in application in Sg, the copyright belongs to the person commissioning the shoot unless otherwise stated.

 

[TMC]

sigh whatever happened to simple understanding. We lose that and we get overpaid lawyers and overzealous court jesters. nowadays so much drama.

Oh well, so simply put. The rights are with the cameraman who took the pics. As long as they dont use it to harm/outrage the model, they can use it for commercial use. am I correct here? so like those pics taken in Producer or Babyfair's shoots, we can use it for posters, ads and such; unless agreed beforehand that it shouldn't be done.

 

[vince123123]

My view is in the affirmative (by harm, I'm limiting it to things like defamation/injurious association etc, not merely harming the pocket or monetary harm).

Randytay's view up to this point in time, is that you cannot.

I suppose you can read both views and then conclude on your own which is a better view to take

Oh well, so simply put. The rights are with the cameraman who took the pics. As long as they dont use it to harm/outrage the model, they can use it for commercial use. am I correct here? so like those pics taken in Producer or Babyfair's shoots, we can use it for posters, ads and such; unless agreed beforehand that it shouldn't be done.

 

[garou12]

My view is in the affirmative (by harm, I'm limiting it to things like defamation/injurious association etc, not merely harming the pocket or monetary harm).

Randytay's view up to this point in time, is that you cannot.

I suppose you can read both views and then conclude on your own which is a better view to take

i'd rather the one that holds up in court.

 

[randytay]

You're asking me if I'm reading it correctly? I think you should ask yourself if YOU are reading it correctly to begin with.

My apologies, I was skimping through the act when I replied and I stand corrected.

However, on closer examination and after a point out by a friend, while you have read it correctly, what you provided was incomplete. The following are not original but pointed out by a friend:

''[Aust. 1968, s. 35]'' - this section is a direct copy of that in Australia dated 1968. in my earlier pm, i've given you the link to the case in July 1998 where this section was amended. no amendments was made in Singapore since there is no precedent case to trigger the amendment. if a similar case occurs in Singapore, there's a high chance that the section will be amended in a similar fashion following Australia's example.

6. the amendment included ''for a private or domestic purpose'' after the word ''photograph'' in (Australia's) Section 35 5 a. so the amended section will read

(5) Subject to subsection (4), where —

(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

(b) the work is made in pursuance of the agreement,

the first-mentioned person shall be entitled to any copyright subsisting in the work by virtue of this Part, except that if the work is required for any particular purpose, that purpose shall be communicated to that other person and that other person shall be entitled to restrain the doing, otherwise than for that particular purpose, of any act comprised in the copyright in the work.

A private or domestic purpose is defined in the Act as including ‘a portrait of family members, a wedding party or children’ (section 35(7)).

part 35(7) does not exist in Singapore's version (yet), it was added in Australia's version after the 1998 case.

Hence, my contention that it was permissible because people in the industry are not doing anything about it but once someone actually put their foot down to take action, things will change. Also, this is probably one of the incident where an industry "create" the law? (at least in Australia). I am of the opinion that if a case over the copyright is to be presented, the copyright act WILL change in favour of the author.

While Singapore is an economically strong country, it is far from being an artist heaven. As such, this is probably the reason why current laws are not "current" as compared to the rest of the world where an artist holds their own against corporate executives.

So there you have it, I concede. I thought with the splurge of photographers popping up in Singapore, things will have moved on to compete in the International arena but it seems that is not so.

 

[randytay]

My view is in the affirmative (by harm, I'm limiting it to things like defamation/injurious association etc, not merely harming the pocket or monetary harm).

Randytay's view up to this point in time, is that you cannot.

I suppose you can read both views and then conclude on your own which is a better view to take

Nope, that was your misunderstanding of my point, if by any going this is a response to the post above yours. When you take a baby photo, portrait etc, the model release is already signed when client signed the contract with you to have their picture taken. It is in the contract that photographer has a right to do as he wish with the images other than for the purpose of harming/defamation/malicious intent etc.

However, in the absence of such contract (e.g a TFP/CD where you forgot to prepare a model release), you are still permitted to publish it on your website, use on your portfolio, produce print samples in a fair, produce leaflets/postcards/promotional materials with said image BUT you cannot sell that image whether as stock photo, to a private collector, to be use for advertisements to endorse a product (other than to show as a sample of your work as a photographer) or any such commercial endeavours. In short, in the absence of a release or similar contract, the image can only be used as a NCV.

 

[vince123123]

Care to share the case citation for the "July 1998" case? I'd like to take a look at the judgement myself to see if the view that "if a similar case occurs in Singapore, there's a high chance that the section will be amended in a similar fashion following Australia's example."

After reading through yoru whole post, I am not sure what is "incomplete" about my post. I am talking about Singapore law and don't see a need to discuss Australia, or United Kingdom or whatever because the law is pretty clear in Singapore. We only look to commonwealth cases where guidance on interpretation is required.

As I have said before, the industry cannot create a law, but it can, through education and presenting their needs, slowly persuade law makers to create the laws to address their needs. That however doesn't change the fact that until and unless the law is actually created, it remains absent. Model releases fall under this category.

My apologies, I was skimping through the act when I replied and I stand corrected.

However, on closer examination and after a point out by a friend, while you have read it correctly, what you provided was incomplete. The following are not original but pointed out by a friend:

''[Aust. 1968, s. 35]'' - this section is a direct copy of that in Australia dated 1968. in my earlier pm, i've given you the link to the case in July 1998 where this section was amended. no amendments was made in Singapore since there is no precedent case to trigger the amendment. if a similar case occurs in Singapore, there's a high chance that the section will be amended in a similar fashion following Australia's example.

6. the amendment included ''for a private or domestic purpose'' after the word ''photograph'' in (Australia's) Section 35 5 a. so the amended section will read

(5) Subject to subsection (4), where —

(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

(b) the work is made in pursuance of the agreement,

the first-mentioned person shall be entitled to any copyright subsisting in the work by virtue of this Part, except that if the work is required for any particular purpose, that purpose shall be communicated to that other person and that other person shall be entitled to restrain the doing, otherwise than for that particular purpose, of any act comprised in the copyright in the work.

A private or domestic purpose is defined in the Act as including ‘a portrait of family members, a wedding party or children’ (section 35(7)).

part 35(7) does not exist in Singapore's version (yet), it was added in Australia's version after the 1998 case.

Hence, my contention that it was permissible because people in the industry are not doing anything about it but once someone actually put their foot down to take action, things will change. Also, this is probably one of the incident where an industry "create" the law? (at least in Australia). I am of the opinion that if a case over the copyright is to be presented, the copyright act WILL change in favour of the author.

While Singapore is an economically strong country, it is far from being an artist heaven. As such, this is probably the reason why current laws are not "current" as compared to the rest of the world where an artist holds their own against corporate executives.

So there you have it, I concede. I thought with the splurge of photographers popping up in Singapore, things will have moved on to compete in the International arena but it seems that is not so.

 

[vince123123]

I don't think I misunderstood your point, because the question raised by TMC does not envisage a contract situation. I'll not dwell on the remainder of the first paragraph because that is a case of agreement - parties can agree to whatever they want in a contract, model release, photographer's release, photographer's undertaking, models'undertaking, photographer's indemnity etc etc; I am discussing the situation where there is no agreement.

As before, I still have yet to see any legal authorities or references to say that in the absence of an agreement, you are NOT ALLOWED to use a photograph commercially or that someone can succeed in a cause of action against another for such commercial use. In fact, I'm not even sure there is a law which says you CAN use it for promotion etc ; however, as stated before, what is not prohibited is allowed and this isn't really in contention.

Nope, that was your misunderstanding of my point, if by any going this is a response to the post above yours. When you take a baby photo, portrait etc, the model release is already signed when client signed the contract with you to have their picture taken. It is in the contract that photographer has a right to do as he wish with the images other than for the purpose of harming/defamation/malicious intent etc.

However, in the absence of such contract (e.g a TFP/CD where you forgot to prepare a model release), you are still permitted to publish it on your website, use on your portfolio, produce print samples in a fair, produce leaflets/postcards/promotional materials with said image BUT you cannot sell that image whether as stock photo, to a private collector, to be use for advertisements to endorse a product (other than to show as a sample of your work as a photographer) or any such commercial endeavours. In short, in the absence of a release or similar contract, the image can only be used as a NCV.

 

[unseen]

Not surprised since we are using a limited medium of communications here.

Thanks for the "clarifications" but again like Vince, I feel you are debating with me based on semantics. I may have worded wrongly but please stick to the context of my statement rather than picking at the words I used. Otherwise this discussion will be on 2 different wavelengths. So to clarify, when I said "made with lawyers", I meant the "guide" for photographers within which he or she practice within since the lawyer should know, thats why we hire lawyers to take care of the legal aspects of our business instead of trying to read the statute and interpret it ourselves.

And your point is? Why do I feel you are baiting me to "say" something so you have something to attack? What exactly is you r point of contention with your posts? So ok, lets just go with you for a moment: Which one that was specifically made for photography locally is blatantly flaunted by a misguided industry? Please do enlighten me and lease be specific.

For clarification purposes, copyright belongs to the artist until it is agreed by both parties that the rights is being transferred, even if it is commissioned. If I am commissioned to take a photo, the money paid is only for me to take the photo, not the copyright of the work UNLESS otherwise agreed. Any attempt to do otherwise is just to undermine the photographer' work.

Agreed. the industry operate in accordance to the law.

Do you still need to do that after my clarification?

Er, I've never been baiting. I'm seriously puzzled by your statements that you made with wild abandon. Let's take for example the "nugget of wisdom" you shared. I'm not picking on semantics (though you may argue otherwise), I'm taking the entire paragraph and it's meaning in entirety.

Please read this:
http://www.ipos.gov.sg/leftNav/cop/Ownership+and+Rights.htm

In case you suspect that when they dumb down for the layman, the meaning was lost during translation, have a look here:
http://statutes.agc.gov.sg/
Chapter 63 Section 30 subsection 4 and 5

"Commissioning: If a portrait/photograph/engraving is commissioned by another party, the commissioner owns the copyright in the work. If the portrait/photograph/engraving is required for a particular purpose, this purpose must be communicated to the commissioned party. While the commissioner is the copyright owner, the commissioned party has the right to stop others from doing any act comprised in the copyright, unless such act is done for the particular purpose for which the portrait/photograph/engraving is created.

For other types of commissioned works, ownership belongs to the commissioned party, unless the commissioner and commissioned party otherwise agree.

As mentioned in the introduction, the copyright owner may transfer his rights to another party or entity either partially or wholly."



So how is it that everything you've mentioned about copyright isn't in accordance with the law?
If you're as you claimed, someone well versed with the laws of the industry, why is it that you can make such a wrong statement?

Oh... seems like chapter 63 S30 (5/6) has already been discussed, and instead of discussing Singapore law Randy is jumping all over pulling all the laws he can find in his favour.

 

[unseen]

Nope, that was your misunderstanding of my point, if by any going this is a response to the post above yours. When you take a baby photo, portrait etc, the model release is already signed when client signed the contract with you to have their picture taken. It is in the contract that photographer has a right to do as he wish with the images other than for the purpose of harming/defamation/malicious intent etc.

However, in the absence of such contract (e.g a TFP/CD where you forgot to prepare a model release), you are still permitted to publish it on your website, use on your portfolio, produce print samples in a fair, produce leaflets/postcards/promotional materials with said image BUT you cannot sell that image whether as stock photo, to a private collector, to be use for advertisements to endorse a product (other than to show as a sample of your work as a photographer) or any such commercial endeavours. In short, in the absence of a release or similar contract, the image can only be used as a NCV.

Hmmmmm
You do understand the social contract that we're all bounded by in this society that we live in. What you've stated is true for the US (there's actual legistation that prevents such an action).
Personally, I've gone over the SG laws pretty comprehensively, and I still can't anything referring to what you've said. Would you be so kind as to point me to such laws in Singapore. It's pretty much useless talking about cases where the law does not apply.

Suppose I took a photo of you. I used it and sold it for local advertisements.
What can you do?

 

[garou12]

Hmmmmm
What you've stated is true for the US (there's actual legistation that prevents such an action).

I thought as much...

 

[randytay]

Hmmmmm
You do understand the social contract that we're all bounded by in this society that we live in. What you've stated is true for the US (there's actual legistation that prevents such an action).
Personally, I've gone over the SG laws pretty comprehensively, and I still can't anything referring to what you've said. Would you be so kind as to point me to such laws in Singapore. It's pretty much useless talking about cases where the law does not apply.

Suppose I took a photo of you. I used it and sold it for local advertisements.
What can you do?

Ah yes, as I have conceded to Vince. This is mainly due to my ignorance and also my assumption that since Singapore wanted to promote the Arts, the laws governing the art and its creator would have evolved and be compatible with copyright laws and laws pertaining to photographers in other more "artistically advance" countries, which sadly and unfortunately, still isn't so as can be seen by the greatly outdated (as compared with other countries where photographers can be a celebrated profession) copyright laws. So for the wrong advice I have given which current Singapore laws and practice do not accommodate (yet), I apologize and I stand corrected.

To answer your last question, it depends. If it is done in the US where I am residing (or Europe etc), I can do enough to make a good fortune off you

This difference in laws is what make the price commanded by photographers to be so different in this 2 parts of the world. (SGD1200 for actual day wedding? *slaps own forehead*)

If it is done in Singapore, I can perhaps go to the right authority to plead the the current laws be evolved so it can keep up with the current international practice (with my fingers crossed)?

So I guess if photographers wanted to be respected and paid well like their Western counterparts, perhaps it is time to push the legal boundaries in your favor?

 

[garou12]

This difference in laws is what make the price commanded by photographers to be so different in this 2 parts of the world. (SGD1200 for actual day wedding? *slaps own forehead*)

what's the going rate in the us now then? o and contrary to what americans want, their laws are not applicable everywhere else in the world.

 

[vince123123]

As I recall, you have conceded only in respect of Section 30(5). Until this post, you have still maintained that you have a valid cause of action against someone who used your photograph for commercial purpose.

Section 30(5)

As for your assertion that Section 30(5) being amended in "more advanced countries"; other than Australia, could you tell us where else a similar provision has been amended? This is to better allow us a global appreciation of the laws in more countries overseas.

It could be that Singapore did not enact such an amendment, not because it is less advanced, but because of its pro-companies stand (much as I disagree with such a stand) - such laws would benefit the consumer more than the companies, and we all know what Singapore's position towards consumers are, vs the corporations. It could be more a choice, rather than a matter of advancement.

Model Releases

With this post however, I now see that you are starting to doubt your initial stand as you are now limiting the act to be done in US (or perhaps Europe) and no longer in Singapore. There was no doubt you could do that in the US, as I have said on many occassion. For Europe, it remains a question mark as I have not yet researched the law in Europe (given that there are many legal complications both in national law, and EU laws.

In Singapore, you have now taken the fallback position of appealing to the authorities to have the laws evolved and changed. This is, to me, implied acknowledgement that the laws in Singapore do not permit you a cause of action against someone who uses a photograph taken of you for a commercial purpose. Please confirm that it is now your position that you acknowledge that Singapore laws DO NOT permit a cause of action against someone who uses a photograph for commerical purposes without seeking a model release.

Current International Practices

You have asserted that Singapore should conform to "current international practices" - by this I assume you are referring that a cause of action against the commercial use of a photograph without a model release is recognised internationally.

Could you tell us, other than the United States, which other countries recognise a cause of action for commercial use of a photograph without a model release per se? I'm not even sure Europe recognises this, although more information would be welcome on this, and other countries since I've only researched Singapore law thoroughly.

Difference in Law = Difference in Pay?

Finally, you assert that differences in pay are due to laws relating to usage of photographs (or other laws perhaps?). I'm not sure how I see a difference in law resulting in a difference in pay.

In the area of model releases, photographers and commercial entities in Singapore could potentially earn more money with the current state of laws as they can have unlimited use of photographs without having to pay the model off for a model release. They also have less exposure to risk of litigation should they inadvertently use a photograph without having gotten a model release.

It would be good to have your perspective and elaboration on this, especially since you operate in the United States - which could provide a different perspective for photographers here in Singapore.

The current law in Singapore on model releases actually favours photographers, and not against them.

1998 Australian Case

Perhaps you missed my request - since your friend provided you with the reference for the 1998 case, could you share that with us? A case citation would be sufficient for me, although an Internet Link (which appears to have been given) would be useful for everyone.

Ah yes, as I have conceded to Vince. This is mainly due to my ignorance and also my assumption that since Singapore wanted to promote the Arts, the laws governing the art and its creator would have evolved and be compatible with copyright laws and laws pertaining to photographers in other more "artistically advance" countries, which sadly and unfortunately, still isn't so as can be seen by the greatly outdated (as compared with other countries where photographers can be a celebrated profession) copyright laws. So for the wrong advice I have given which current Singapore laws and practice do not accommodate (yet), I apologize and I stand corrected.

To answer your last question, it depends. If it is done in the US where I am residing (or Europe etc), I can do enough to make a good fortune off you

This difference in laws is what make the price commanded by photographers to be so different in this 2 parts of the world. (SGD1200 for actual day wedding? *slaps own forehead*)

If it is done in Singapore, I can perhaps go to the right authority to plead the the current laws be evolved so it can keep up with the current international practice (with my fingers crossed)?

So I guess if photographers wanted to be respected and paid well like their Western counterparts, perhaps it is time to push the legal boundaries in your favor?

 

[Jason Ho]

This discussion has gone offtrack in my opinion.

This is not the court room or subcourt. Theres no relevance here arguing and debating over difference in different countries laws. It gets no where.

Point to take note.
1) ClubSNAP doesn't provide legal consultancy in this forum

2) For those who are extremely concerned over their rights (be it model or shoot organisers), try to find some friends or people from the legal profession rather than listening to people here. Reason is I dont want anyone to be mislead by any member here

I am closing this thread. Be reminded not to start another similar thread again