I got call today, and as you can tell it was somewhat out of the blue.
Friend: “Hey how’s it going?”
Me: “Okay, what can I do for you?”
F: “Do you write contracts?”
M: “Yea, I’ve been know to write a contract or two. What do you need a contract for?”
F: “Well I need a contract between two people.”
M: “That’s a start. What else?”
F: “Well, I want a contract so I can post pictures and video of them on the web.”
M: “Uh-huh. So, you want a Release.”
F: “Yes, I want a release! Can you write one of those?”
M: “Well, what kind of website are you going to be posting these pictures and video on?”
F: “Have you seen Girls Gone Wild? Something like that, but I got my own spin!”
M: “Let me ask a very important question….. How old are these girls?”
I swear it actually happened like that.
Now for the law
Transfers of Rights and Releases from Liability are extremely important in the Adult Entertainment industry. A well written release should to accomplish six main goals.
First, the Release has to establish that the model is over 18 years of age. This is falls into the category of common sense, as any model under 18 who “performs” on film lacks 1) “legal capacity” to release the photographer from liability and 2) the film qualifies as child pornography in which case the photographer is going to jail.
Second, the Release should satisfy the record requirement of the Child Protection and Enforcement Act of 1988. (18 USC 2251 et seq.). Section 2257 places stringent record-keeping requirements on the producers of actual, sexual explicit materials. Producers (anyone involved in hiring, contracting for managing, or arranging for models) must attain proof of age for every model they shoot, and they must keep those records on hand for Federal inspectors. A release that incorporates biographical information of the model and a copy of a government issue ID, will likely satisfy most of the requirements of 2257. Failure to maintain these records will result in the photographer going to jail.
Third, the Release should make the model aware of the nature of her employment. In other words, “she is getting naked, and she knows about it well ahead of time.” A simple statement that the work involves nudity and/or explicit sexual conduct will likely prevent a possible defense that model was “forced or coerced” in to compromising positions.
Fourth, the Release has to explicitly state that the photograph has been given permission or the rights to use and reproduce any video, photographs, or audio of the model. While this seems to be an obvious point of a release, if the language describing the rights or permissions is weak, then necessary rights to redistribute the pictures or video may not transfer from the model to the photographer. This section should also make a reference to some sort of consideration (e.g. “for consideration received”) which is exchanged for the rights and permissions received.
Fifth, if possible the Release should transfer all copyrights in the work. A model can be a “co-author” of a photograph in which she is included. While a typical release might only give permission to reproduce the photographs, a transfer of copyrights will prevent the model from possibly assigning her rights in the photographs to a competitor.
Finally, the Release should release all possible claims against the photographer. A good release statement should be constructed in two parts. One part should specifically release the producer or photographer from liability for torts and contract claims that are likely to arise. For example, the statement should explicitly reference claims for future compensation or claims for torts resulting from publication or distribution (e.g. claims for invasion of privacy or defamation). The second part should release all other claims “known or unknown.”
I help where I can.
I wonder if this work could be considered for pro bono credit... mmmmmm......
*Prophet.
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