Using client photos for other projects

[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

[Laura B. Shelley]

Update on this question:

At the meeting for the contract signing, I presented the client with the model release and explained its purpose. The subject of other uses came up spontaneously, and I mentioned that some of the shots of her daughter with her kite might make good figuratives if it was all right with her that I should use them that way. The client seemed pleased by the idea and asked to see the paintings when they were done, so it seems that particular hurdle is gotten over.

I'm very glad I asked about it here, since refining my approach and knowing the possible pitfalls was extremely useful. It's already come up again a couple of times, and I was able to come right back with a confident answer and reassurances.

[Leslie Ficcaglia]

Good to have an update on this issue, Laura, and it's nice that it worked out. It will be interesting to see the painting(s) if you end up doing them!