Using client photos for other projects

[Laura B. Shelley]

Recently I did a reference photo shoot of a young girl for a commission. I have a business relationship with her and her family; they are not relatives or close friends.

The pose I picked for her portrait is a close-up, but I also took scores of pictures of her running across a sunlit field with her kite. While reviewing them, it occurred to me that a number of the longer shots would translate very well into figuratives; they might even make a series. Some of the pictures I'd like to use were taken close enough that a faithful rendering would be recognizable, and some are from farther away.

Has anyone here done this sort of thing? What legal bases should I make sure to cover? Should I prepare a specific model release? My husband suggests that I just add a clause to the portrait commission contract (not yet signed) that says I can use the photos for other purposes than the specific commission and leave it at that.

That doesn't seem adequate to me, and I don't want to sneak it through, obviously. I want to make it clear to the parents what I plan to use the photos for so that they won't be surprised or upset.

I'd probably phrase it in as flattering a manner as possible ("These were such nice pictures of your daughter that they really inspired me") without giving them the idea that they ought to be compensated for the additional use! I could certainly offer them prints of the finished paintings as a gift or something like that. But I don't want them to get spooked in some way or otherwise complicate the process.

I'd love to hear any suggestions you may have!

Laura Shelley

[Kimberly Dow]

This is just me, but I would go over and have them sign a standard model release form - and if they do not want to - then do not do them. It should be two separate contracts - one for the commission and another for modeling and the use of the photos for your own figuratives.

There is a huge gap in a person's thinking - being a client who hired the artist and being a possible model for a separate painting. You have to please your client and that is one of the basics of your relationship. With a model they sign away all rights and have no say at all. If you try to do both at the same time - it might be confusing for the client.... they might want a say in what photos you can and can't use. If you really want to - I'd wait until your commission is finished and delivered, then approach them about it.

[Mike McCarty]

Has anyone here done this sort of thing? What legal bases should I make sure to cover? Should I prepare a specific model release? My husband suggests that I just add a clause to the portrait commission contract (not yet signed) that says I can use the photos for other purposes than the specific commission and leave it at that.

I have two separate documents -- a model release and a contract. When a commission is contemplated, I require one third down at the time the reference photos are taken. When you take money there should be a contract signed and a receipt given. Separate from that, if you take photos there should be a model release signed. This release gives you full rights to the images whether a commission goes forward or not. If there is compensation for those rights thats another issue to be dealt with.

You seem to be behind the curve on both of these. If I were you I would bring a model release with me and have them sign it separately from the contract. It is these documents that speak for your right to use the images. I don't like the idea of going back hat in hand and asking permission. What if they say no, will you be OK with that? If they sign the release the matter should be closed.

For this time only I would incorporate the model release into the contract as if it were page 3 of 3. Then I would present it with a smile on my face and not a lot of explanation about what I may or may not end up doing with my rights.

If it all goes wrong at the time of signing it would have probably gone wrong anyway.

[Michele Rushworth]

Mike and Kim, what wording do you have in your model's releases that talks about the kind of work that is to be created? Mine specifically talks about rights to use the photos for "a portrait" but I'd like to have it cover any future uses, too.

[Mike McCarty]

I'm sure this was procured from some other generous artist.

In part is reads like this:

I agree and consent that Tom Gump and his nominees and assigns may use any motion pictures, still photographs, or videotape recordings taken of: ________, on or about ______, 20__.

I do grant the use of any reproduction thereof, in any form, style or color, together with any writing and/or other advertising and/or publicity material in connection therewith.

I understand that my talents and/or services and any related advertising and publicity material may be used in connection with Tom Gump Portrait Art.

This consent and release is given by me without limitations upon any use for projections, playback, reprints, rerun, broadcast, telecast, Internet transmission, web site, display or publication of any kind, including the advertising and publicity connected therein. I also agree that the originals and copies there from shall be and remain the exclusive property of Tom Gump Portrait Art or its nominees and assigns.

[Michele Rushworth]

Thanks!

[Laura B. Shelley]

Yes, I've painted myself into a corner. I definitely take the point about the separate model release, and I'll start using one immediately. I appreciate the advice very much!

There's a clause in my boilerplate contract that assigns copyright in the photos and portrait to me, and another clause that specifies that I can use those photos and portrait for self-promotion and so on, "in all forms and media and in all manners," etc. I'm not dead positive that stretches to include other projects, so I do want to make certain about that, and I'll put that language in the model release.

This is a slightly unusual situation as far as payment and contracts are concerned. I donated the commission to a school fundraising auction. So the client has already written a check, albeit to the school and not to me. At the time of the auction, she received a spec sheet that I had already signed, giving the exact terms of the commission: 9x12, pastel, one subject, head and shoulders only, etc. That's the initial contract.

Unless she decides to upgrade her commission to a larger size or a half-length view or something on that order, she won't owe me any money. The way I've usually proceeded with these donated commissions is to do the photo shoot and show the client several pose options as an incentive to upgrade. It's pretty common that they end up wanting to do so, even though my major reason for the donations is self-promotion as well as building my portfolio. I'm a beginner--can you tell?

I didn't think I could ask them for anything up-front before they've made that upgrade decision, so I dropped the ball on the model releases. When it's an ordinary commission from scratch, I do ask for a deposit at the time of the photo shoot.

Covering my rear isn't the only reason for all this, of course--I don't want to cause offense. I dread a situation where the client or a friend of hers spots something that I painted from photos of that child and raises a stink. That's why I say I don't want to sneak anything past her. If it ends up that I just can't use those particular photos, I'll grab my kids, take them out to the park and fill up a couple of 512 meg cards!

[Michele Rushworth]

You can have her sign whatever portion of your contract refers to the model's release and write "no charge" in everywhere that there is mention of a fee. Gotta have her signature to take and use the photos or there could be big trouble later.

[Mary Reilly]

Laura,

Here is my two cents for what it may or may not be worth.

I prefer asking about using some of the photos after the portrait has been completed. I feel the two should be kept totally separate so as to not confuse the issues since they are two different business matters. Especially since this was done as a donation, it wouldn

[Laura B. Shelley]

I hadn't even thought about the possible implication of an ulterior motive! Good point.

After pondering all this excellent advice, I do prefer the idea of separating the transactions. Complicating the process by mixing in a completely different element at this point wouldn't be a good idea, IMO; many of my clients are confused by how portrait commissions work in the first place and need a lot of reassurance! Once they're more comfortable with that and with me would certainly be a better time to bring up possibly dicey issues like my proposal.

Since I've got shoots on Monday and Tuesday, I'm going to spend some time this weekend perfecting my model release form and adding in the element of possibly using the photos for other paintings. If I'd had the presence of mind to have the client sign something at the shoot in the first place, I wouldn't have opened quite so large a can of worms for myself. So I'll deal with them one by one!

Laura