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Thread: Discussion on Model Releases (or lack thereof)

  1. #1
    vince123123
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    Default Discussion on Model Releases (or lack thereof)

    This thread is started to specifically discuss the issue of model releases (or the lack thereof). It follows on from discussions in the following threads:

    http://forums.clubsnap.org/showthread.php?t=309026
    http://forums.clubsnap.org/showthread.php?t=322475

    This initial post is in response to the last posting discussing this issue (quoted below). Anyone may feel free to contribute to the discussion - any issues relating to model releases are welcome here I believe that this discussion would benefit many photographers both within the business, and even hobbyists.

  2. #2
    vince123123
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    Default Re: Discussion on Model Releases (or lack thereof)

    Now onto the discussion proper:

    ------------------------------------------

    There is no law which states that a company has to sign a contract when they make deals. However, there are laws which allows a company to take action against another for breach of any contract that is signed. That is why companies do it; not because there is a law stipulating that they must, but because there are laws providing them with remedies should there be a breach of contract by the other party.

    Yes, contracts are enforceable - this has nothing to do with industry practice for businesses. And yes, model releases are contracts, and contracts are enforceable because there are laws recognising a cause of action founded on breach of contract.
    You have confused the issue of contract against the issue of a cause of action that can be taken when model releases are not signed. If a model release (or any contract for that matter) is signed, either party may take action if there is a breach of the terms therein.
    However, it is my view that if there is NO model release, the subject does not have any cause of action to take against the photographer should the photographer decide to use the photograph in any way he choose, whether for commercial gain or otherwise. As long as the photographer did not agree to anything, he can do what he wishes with the photographs (of course, assuming the usual causes of action like defamation or outrage or some other cause of action does not apply).

    As for qualifications, I'm not sure why qualifications have to be brought into the picture in a discussion based on substantive facts and laws. It does not follow that when someone possesses high qualifications, he is automatically correct. Hence, in any discussion or debate, what is more important is the points that are made, and the substance that backs those points, than the qualifications of the person making those points. Judges have been wrong; their judgements overturned on appeal. Lawyers have been wrong; with the other side winning instead of them. Senior Counsel, being more qualified than usual, have lost cases to advocates who are not senior counsels.

    Also, I find it curious that "my suggestion is not acceptable by you" given that you were the one who initially put forth a similar suggestion to me. At the time you made the suggestion, you have not claimed or asserted that you have done the same but merely threw an invitation for me to do the same so that I can appreciate what you are saying.

    And since you asked and since it appears particularly important to you, I confirm that I have " have worked in a law firm or AG's chambers or perhaps IPOS or the clerking office in the courts". Now, does that now make me more qualified to debate with you? I hardly think so, as I prefer to discuss based on substantive points, and not based on who is better qualified.

    A discussion based on who is more qualified more often than not turns out to be counter-productive.

    As for providing proof that a model cannot seek a claim if a photographer uses her photograph, I trust that you appreciate the concept of burden of proof in a court of law. You are asking me to prove a negative, which is not possible. How do I prove a negative? Are you able to find me proof which says that one cannot brush his teeth? Or that one cannot take a bath? In any judicial system, what is not prohibited is allowed and there is no need to prove that something is allowed, only that something is not allowed. This is also the basis on which causes of action are founded - the plaintiff has to prove a cause of action in order to seek remedies.

    The law recognises that proving a negative is an onerous burden, which is why burden of proof is often placed on proving a positive and not proving a negative. In a criminal case, it is the prosecutor who has to prove that the accused is guilty beyond reasonable doubt, and not for the accused to prove that he did not do it. In a civil case, it is the plaintiff who proves his case on a balance of probabilities, and not for the defendant to prove that he did not do it. Of course, once a prima facie case is shown, it is then up to the accused/defendant to make out any defences which may apply.

    Specific to the issue of usage of photographs, local case law has already shown that the only causes of action which will succeed in such cases are either defamation or copyright infringement.

    If you are able to come up with applicable case law or examples on which someone has succeeded in a claim for usage of photographs per se, kindly let us know - I will surely be glad to discuss or analyse that case further. As one can never be entirely sure or have 100% knowledge of anything, if you do know something which I may have missed, I would be glad to consider it further. Merely asserting that it is an industry practice does not confer legitimacy to a cause of action - as stated before, it is an industry practice for security guards to stop people taking photographs from a public area, but that does not make it any more legal than it is.

    As for whether this is discussion or one-upmanship, I suggest that you also examine your thoughts to see which applies.

    For the final point on general law, with your clarification, I have a better understanding of what you mean - namely that laws cannot catch up with the times. This is indeed a problem especially in the Internet and computing era when laws turn out to be outdated or insufficient to address current day issues. This is a point which has been recognised in the field of law. Yet, how it is addressed are often to turn to existing laws and based on analogy, build up new laws whether case decided, or through legislation. For example, database rights were analogised back to copyright laws.

    I recognise your claim as a professional photographer, but do contend again that even if the whole industry THINKS that a model can sue a photographer for using a photograph, the model would have an uphill battle trying to make out a whole brand new cause of action, especially if it cannot be analogically based on an existing and established cause of action.

    As for your stand on personal interpretations, I believe in a forum of this nature, everyone's comments are personal interpretations, including your own. You cannot purport to speak on behalf of the whole industry even if you may be working in that industry professionally. Neither can I. I don't see any reason why one should attempt to stifle another's views from being heard on a public forum, especially in offering an alternative or even contrary viewpoint to views already expressed.

    Feel free to discuss further if you wish; I would be especially interested if you have further information which I may have missed out on during my own research on this topic.

    Cheers

    Quote Originally Posted by randytay View Post
    Just wondering if there is a law that states that company have to sign a contract when they make deals. If there is, please do show. If not, I wonder why companies do it, since if there is no law. However, I am very sure those contracts are enforceable even if it is just a industry practice for business. For the record, a model release is a contract, and a contract is always enforceable.

    Secondly, whatever I have suggested you do so you know, I have already done it and am in the industry, so I would expect that you have worked in a law firm or AG's chambers or perhaps IPOS or the clerking office in the courts? Otherwise, your suggestion is not acceptable by me since you yourself have not done it and whatever you claimed is based on your own interpretation of the law, which to this point, has been a futile exercise in semantics. By the way, ad agencies, model agencies and commercial/fashion photographers DO have lawyers, an d in bigger firms, a legal department to handle such stuff. Since I have worked in or with most, if not all these bodies before, I would at least have that experience with the legal side of the business/industry. Now perhaps you should at least do the same and prove your qualifications?

    Lastly, rather than going round and round in circles, this is what I propose: Do find and provide *irrefutable* proof that a model cannot seek claims if a photographer decides to use said model image for commercial and/or other purposes, other than portfolio or own marketing usage, without the express consent of the model in the form of a model release or similar contract, or in a similar scenario ( I have to add this because you have the uncanny ability to argue base on semantics rather than context) if the model do seek claim, that the courts or whoever decides will not rule in the model's favor BECAUSE Singapore do not provide such provision rather than evidence provided by the photographer to indicate otherwise, whether incidental, referential or circumstantial. Otherwise, please do stop this because I have noticed that you are not discussing nor debating for the benefit of the forum but simply vying for a one-upmanship in the arena of law.

    As a post note and as an evidence of you using semantics rather than context, my reference to "general law" means an area as practice by lawyers; lawmakers; enforcers; watchdog etc but you can pick apart the words use to argue your way to a "specialized area of law". I do admit I am no lawyer and I may not know law per se, but I do, as a professional photographer, knows what photography practice is, and if the whole industry practice it, it WILL be enforced. So there. I am done. Unless you can either (1) provide background to your qualification to comment further or (2) provide irrefutable proof to refute my statements, it is helpful to all to just keep further personal intepretations and/or comments on this subject to yourself. Until then I await to be stand corrected.

  3. #3
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    Default Re: Discussion on Model Releases (or lack thereof)

    Ah, another case of people who know nothing trying to brush off an expert of the field.

    Quote Originally Posted by randytay View Post
    As a post note and as an evidence of you using semantics rather than context, my reference to "general law" means an area as practice by lawyers; lawmakers; enforcers; watchdog etc but you can pick apart the words use to argue your way to a "specialized area of law". I do admit I am no lawyer and I may not know law per se, but I do, as a professional photographer, knows what photography practice is, and if the whole industry practice it, it WILL be enforced. So there. I am done. Unless you can either (1) provide background to your qualification to comment further or (2) provide irrefutable proof to refute my statements, it is helpful to all to just keep further personal intepretations and/or comments on this subject to yourself. Until then I await to be stand corrected.
    Very curious..
    If you so admit that you know not what the law is, how can you know what the law enforcers would enforce? You do understand that it's "professional photographers" do not enforce the law, and that there are "professional law enforcers" (those who have "worked in a law firm or AG's chambers or perhaps IPOS or the clerking office in the courts")?

  4. #4

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    Now onto the discussion proper:

    ------------------------------------------

    There is no law which states that a company has to sign a contract when they make deals. However, there are laws which allows a company to take action against another for breach of any contract that is signed. That is why companies do it; not because there is a law stipulating that they must, but because there are laws providing them with remedies should there be a breach of contract by the other party.

    Yes, contracts are enforceable - this has nothing to do with industry practice for businesses. And yes, model releases are contracts, and contracts are enforceable because there are laws recognising a cause of action founded on breach of contract.
    You have confused the issue of contract against the issue of a cause of action that can be taken when model releases are not signed. If a model release (or any contract for that matter) is signed, either party may take action if there is a breach of the terms therein.
    However, it is my view that if there is NO model release, the subject does not have any cause of action to take against the photographer should the photographer decide to use the photograph in any way he choose, whether for commercial gain or otherwise. As long as the photographer did not agree to anything, he can do what he wishes with the photographs (of course, assuming the usual causes of action like defamation or outrage or some other cause of action does not apply).

    As for qualifications, I'm not sure why qualifications have to be brought into the picture in a discussion based on substantive facts and laws. It does not follow that when someone possesses high qualifications, he is automatically correct. Hence, in any discussion or debate, what is more important is the points that are made, and the substance that backs those points, than the qualifications of the person making those points. Judges have been wrong; their judgements overturned on appeal. Lawyers have been wrong; with the other side winning instead of them. Senior Counsel, being more qualified than usual, have lost cases to advocates who are not senior counsels.

    Also, I find it curious that "my suggestion is not acceptable by you" given that you were the one who initially put forth a similar suggestion to me. At the time you made the suggestion, you have not claimed or asserted that you have done the same but merely threw an invitation for me to do the same so that I can appreciate what you are saying.

    And since you asked and since it appears particularly important to you, I confirm that I have " have worked in a law firm or AG's chambers or perhaps IPOS or the clerking office in the courts". Now, does that now make me more qualified to debate with you? I hardly think so, as I prefer to discuss based on substantive points, and not based on who is better qualified.

    A discussion based on who is more qualified more often than not turns out to be counter-productive.

    As for providing proof that a model cannot seek a claim if a photographer uses her photograph, I trust that you appreciate the concept of burden of proof in a court of law. You are asking me to prove a negative, which is not possible. How do I prove a negative? Are you able to find me proof which says that one cannot brush his teeth? Or that one cannot take a bath? In any judicial system, what is not prohibited is allowed and there is no need to prove that something is allowed, only that something is not allowed. This is also the basis on which causes of action are founded - the plaintiff has to prove a cause of action in order to seek remedies.

    The law recognises that proving a negative is an onerous burden, which is why burden of proof is often placed on proving a positive and not proving a negative. In a criminal case, it is the prosecutor who has to prove that the accused is guilty beyond reasonable doubt, and not for the accused to prove that he did not do it. In a civil case, it is the plaintiff who proves his case on a balance of probabilities, and not for the defendant to prove that he did not do it. Of course, once a prima facie case is shown, it is then up to the accused/defendant to make out any defences which may apply.

    Specific to the issue of usage of photographs, local case law has already shown that the only causes of action which will succeed in such cases are either defamation or copyright infringement.

    If you are able to come up with applicable case law or examples on which someone has succeeded in a claim for usage of photographs per se, kindly let us know - I will surely be glad to discuss or analyse that case further. As one can never be entirely sure or have 100% knowledge of anything, if you do know something which I may have missed, I would be glad to consider it further. Merely asserting that it is an industry practice does not confer legitimacy to a cause of action - as stated before, it is an industry practice for security guards to stop people taking photographs from a public area, but that does not make it any more legal than it is.

    As for whether this is discussion or one-upmanship, I suggest that you also examine your thoughts to see which applies.

    For the final point on general law, with your clarification, I have a better understanding of what you mean - namely that laws cannot catch up with the times. This is indeed a problem especially in the Internet and computing era when laws turn out to be outdated or insufficient to address current day issues. This is a point which has been recognised in the field of law. Yet, how it is addressed are often to turn to existing laws and based on analogy, build up new laws whether case decided, or through legislation. For example, database rights were analogised back to copyright laws.

    I recognise your claim as a professional photographer, but do contend again that even if the whole industry THINKS that a model can sue a photographer for using a photograph, the model would have an uphill battle trying to make out a whole brand new cause of action, especially if it cannot be analogically based on an existing and established cause of action.

    As for your stand on personal interpretations, I believe in a forum of this nature, everyone's comments are personal interpretations, including your own. You cannot purport to speak on behalf of the whole industry even if you may be working in that industry professionally. Neither can I. I don't see any reason why one should attempt to stifle another's views from being heard on a public forum, especially in offering an alternative or even contrary viewpoint to views already expressed.

    Feel free to discuss further if you wish; I would be especially interested if you have further information which I may have missed out on during my own research on this topic.

    Cheers
    A lot of words here but basically in circles. You still have not provide what I request. I invite you to do something of course being I have been there, done that. You simply threw the gauntlet back without aiming, thats why it cannot be accepted since it is beyond your own experience when you made your point but very well within mine when I made mine. That said, I will only address one point:

    You said "I recognise your claim as a professional photographer, but do contend again that even if the whole industry THINKS that a model can sue a photographer for using a photograph, the model would have an uphill battle trying to make out a whole brand new cause of action, especially if it cannot be analogically based on an existing and established cause of action."

    Substitute the word "THINK" with "KNOW" and thats my stand. Uphill or not, its your speculation, not mine. The only reason why such a case is a "losing" battle is simply because no one thinks it can be done and hence nobody takes action. All we have to do is just wait till someone does, and then we'll know for sure.

    End of discussion.

  5. #5

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by unseen View Post
    Ah, another case of people who know nothing trying to brush off an expert of the field.


    Very curious..
    If you so admit that you know not what the law is, how can you know what the law enforcers would enforce? You do understand that it's "professional photographers" do not enforce the law, and that there are "professional law enforcers" (those who have "worked in a law firm or AG's chambers or perhaps IPOS or the clerking office in the courts")?
    Thanks but I see any attempt at semantics here. Put it shortly, I do not know what the law id but I know the law that governs the industry I worked in. I do not enforce the law, I abide and practice those laws that are for the industry. Those who work in the AG's chambers or perhaps the IPOS or the clerking office in the courts simply helps to enforce/facilitate/preside over the laws that were made by with lawyers in accordance to the practice of my chosen industry/field. Anything else?

  6. #6
    vince123123
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    Default Re: Discussion on Model Releases (or lack thereof)

    You have merely asserted your claim with a bare assertion but without any evidence either. You merely said you "KNOW" without showing how you know. When I explained to you on why I cannot prove a negative but you can prove a positive, you say I am throwing back the gauntlet to you.

    Even if we do not consider the point on proving a negative vs proving a positive, you are in no better position that I am, because you are not able to show anything, in the same way that you have claimed that I am not able to show anything. At least I was able to show some form of legal research in trying to eliminate possibilities, but all you were able to do is to claim that you work "in the industry" and hence you know better.

    You have also not stated how you "KNOW" - anyone can claim he knows without having to substantiate how he knows. If everyone in the industry is so sure of this "industry practice", it should be a walk in the park to take action, and not as you say, "nobody thinks it can be done".

    Perhaps you should just say that only "YOU in the industry knows" and not purport to speak on behalf of the whole industry knowing. Then it may be more palatable a view to take.

    EDIT (addon): You have paraded your "experience" like as if it automatically means you are correct, and do not have to substantively prove your points. You say you have "been there, done that" - have you successfully made out an action where a model can sue a photographer for using an image without a model release (save in circumstances of established causes of action like defamation, copyright infringement etc).

    Experience doesn't count (or for that matter, even qualifications - see my earlier post), substantive discussions do. I'll love to see you argue in front of a judge and say "Your Honour, I am correct and you have to recognise my claim because all my compatriates in the industry think that I can take action for use of a photograph without a model release".

    On an aside, I find it curious that you keep saying "End of discussion", as if trying to squeeze the last word in edgewise. In a forum, discussion continues as long as someone has a view to share and no attempts to stifle discussion or prevent further responses are likely to be welcome.

    Quote Originally Posted by randytay View Post
    A lot of words here but basically in circles. You still have not provide what I request. I invite you to do something of course being I have been there, done that. You simply threw the gauntlet back without aiming, thats why it cannot be accepted since it is beyond your own experience when you made your point but very well within mine when I made mine. That said, I will only address one point:

    You said "I recognise your claim as a professional photographer, but do contend again that even if the whole industry THINKS that a model can sue a photographer for using a photograph, the model would have an uphill battle trying to make out a whole brand new cause of action, especially if it cannot be analogically based on an existing and established cause of action."

    Substitute the word "THINK" with "KNOW" and thats my stand. Uphill or not, its your speculation, not mine. The only reason why such a case is a "losing" battle is simply because no one thinks it can be done and hence nobody takes action. All we have to do is just wait till someone does, and then we'll know for sure.

    End of discussion.
    Last edited by vince123123; 21st December 2007 at 11:57 AM.

  7. #7
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    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by randytay View Post
    Thanks but I see any attempt at semantics here. Put it shortly, I do not know what the law id but I know the law that governs the industry I worked in. I do not enforce the law, I abide and practice those laws that are for the industry. Those who work in the AG's chambers or perhaps the IPOS or the clerking office in the courts simply helps to enforce/facilitate/preside over the laws that were made by with lawyers in accordance to the practice of my chosen industry/field. Anything else?
    Yes. I'm under the impression that you have a warped understanding of law.

    1. Lawyers don't make laws. They follow the law as set out. There are merely legal "servants".
    In fact, those who work in AG's chambers and IPOS are more in position to "make laws".

    2. There are no laws "made for the industry." The only one specifically made for photography locally is one that is blatently flaunted by a misguided industry. So far there is already a police case, and I believe the owner settled it quietly. It pertains to copyright, if you're interested, where any commissioned photographs belong to the person who paid the money, not the studio.
    Whatever the industry practice is, it cannot withstand the legal implications. If the law says so, industry practice does NOT overrule.

    Perhaps to back your words, I'm sure you can introduce the lawyers who proclaim to have made the law. I will personally query them on their stand of the issue. I'm sure the which ever country the law firm is based in would be interested to know too.

  8. #8
    vince123123
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    Default Re: Discussion on Model Releases (or lack thereof)

    The statement in bold is correct.

    The industry follows the law, and not the other way around. If the industry thinks that the law is outdated, they usually petition for changes in the law (much in the same way lobby groups do in the United States).

    If the industry makes law, I suppose we can all close down the courthouses and have individual panels/associations/membership bodies within each industry decide issues pertaining to that industry.

    Quote Originally Posted by unseen View Post
    Yes. I'm under the impression that you have a warped understanding of law.

    1. Lawyers don't make laws. They follow the law as set out. There are merely legal "servants".
    In fact, those who work in AG's chambers and IPOS are more in position to "make laws".

    2. There are no laws "made for the industry." The only one specifically made for photography locally is one that is blatently flaunted by a misguided industry. So far there is already a police case, and I believe the owner settled it quietly. It pertains to copyright, if you're interested, where any commissioned photographs belong to the person who paid the money, not the studio.
    Whatever the industry practice is, it cannot withstand the legal implications. If the law says so, industry practice does NOT overrule.

    Perhaps to back your words, I'm sure you can introduce the lawyers who proclaim to have made the law. I will personally query them on their stand of the issue. I'm sure the which ever country the law firm is based in would be interested to know too.

  9. #9

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by unseen View Post
    Yes. I'm under the impression that you have a warped understanding of law.
    Not surprised since we are using a limited medium of communications here.


    1. Lawyers don't make laws. They follow the law as set out. There are merely legal "servants".
    In fact, those who work in AG's chambers and IPOS are more in position to "make laws".
    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.


    2. There are no laws "made for the industry." The only one specifically made for photography locally is one that is blatently flaunted by a misguided industry. So far there is already a police case, and I believe the owner settled it quietly. It pertains to copyright, if you're interested, where any commissioned photographs belong to the person who paid the money, not the studio.
    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.

    Whatever the industry practice is, it cannot withstand the legal implications. If the law says so, industry practice does NOT overrule.
    Agreed. the industry operate in accordance to the law.

    Perhaps to back your words, I'm sure you can introduce the lawyers who proclaim to have made the law. I will personally query them on their stand of the issue. I'm sure the which ever country the law firm is based in would be interested to know too.
    Do you still need to do that after my clarification?

  10. #10

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    The statement in bold is correct.

    The industry follows the law, and not the other way around. If the industry thinks that the law is outdated, they usually petition for changes in the law (much in the same way lobby groups do in the United States).

    If the industry makes law, I suppose we can all close down the courthouses and have individual panels/associations/membership bodies within each industry decide issues pertaining to that industry.
    Just a question for you Vince. How do you think the first "law" came about? If there was a new industry whereby the local law do not have any providence but the country sees a need to regulate it, from where do you think lawmakers will draft their "law"?

  11. #11

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    You have merely asserted your claim with a bare assertion but without any evidence either. You merely said you "KNOW" without showing how you know. When I explained to you on why I cannot prove a negative but you can prove a positive, you say I am throwing back the gauntlet to you.

    Even if we do not consider the point on proving a negative vs proving a positive, you are in no better position that I am, because you are not able to show anything, in the same way that you have claimed that I am not able to show anything. At least I was able to show some form of legal research in trying to eliminate possibilities, but all you were able to do is to claim that you work "in the industry" and hence you know better.

    You have also not stated how you "KNOW" - anyone can claim he knows without having to substantiate how he knows. If everyone in the industry is so sure of this "industry practice", it should be a walk in the park to take action, and not as you say, "nobody thinks it can be done".

    Perhaps you should just say that only "YOU in the industry knows" and not purport to speak on behalf of the whole industry knowing. Then it may be more palatable a view to take.

    EDIT (addon): You have paraded your "experience" like as if it automatically means you are correct, and do not have to substantively prove your points. You say you have "been there, done that" - have you successfully made out an action where a model can sue a photographer for using an image without a model release (save in circumstances of established causes of action like defamation, copyright infringement etc).

    Experience doesn't count (or for that matter, even qualifications - see my earlier post), substantive discussions do. I'll love to see you argue in front of a judge and say "Your Honour, I am correct and you have to recognise my claim because all my compatriates in the industry think that I can take action for use of a photograph without a model release".

    On an aside, I find it curious that you keep saying "End of discussion", as if trying to squeeze the last word in edgewise. In a forum, discussion continues as long as someone has a view to share and no attempts to stifle discussion or prevent further responses are likely to be welcome.
    Vince, read from my previous post and you'll know how I know. Seriously, dont you ever get tired of this? From my own observation and from countless PMs, I see that when it comes to the topic of "Law", you want to be top dog in the foru and just want to have the final say, if that is what it takes so out lives move on, ok, have the final say.

    Like I say, we can go on arguing till the cow comes home and you will never agree with me since you DO NOT have that experience "yet". If you want to know, just go ahead and pitch for a job with an agency, beats trying to research all the words from the internet.

    Substantive arguments are based on both experience and qualifications, how else do you substantiate what you say? If what I say in front of the judge do not count since I do have a lawyer who can guide me, so telling the judge "Your honor,I am correct and you have to accept my claim because I cannot find it on the internet?" is considered substantive?

    The right to take action is not what the industry thinks, its because the image maker uses the likeness/image of another person for monetary gain without permission which is not related to journalistic usage. Is it so hard to understand?

    Anyway, seriously, end of discussion. If you think its not important, then just don't do it and continue to undermine a photographer's integrity.

  12. #12
    vince123123
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    Default Re: Discussion on Model Releases (or lack thereof)

    You are correct to opine that laws arrive as a matter of industry needs, but that doesn't detract from my point that no matter what the industry needs, until and unless the law is made, it will remain in that outdated state.

    Quote Originally Posted by randytay View Post
    Just a question for you Vince. How do you think the first "law" came about? If there was a new industry whereby the local law do not have any providence but the country sees a need to regulate it, from where do you think lawmakers will draft their "law"?

  13. #13
    vince123123
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    Default Re: Discussion on Model Releases (or lack thereof)

    I have read your previous post, and I know that you are saying that you know because you have the "experience". However, when asked what experience you have in relation to successful actions, you are strangely silent.

    There is no need to be a top dog in the forum, but there's a need to address misleading/misguided opinions, or opinions which are based on "I know because I know" without any clear substantive or legal authorities. I see a need to provide an alternative, or even contrary viewpoint to advice which sounds suspect.

    As for experience, how do you know that your experience is better than my experience? I tend not to argue based on experience or qualifications regardless of whether I have better or worse experience or qualifications simply because qualifications/experience alone does not cut it. If I were now to tell you that I am an lawyer specialising in copyright, or a Supreme Court judge, or perhaps, even a professional photographer with 30 years in the industry and I know better than your experience, does that change anything?

    My research does not come from the Internet, unlike yours. My research comes from locally enacted legislation (such as the Copyright Act and others) as well as locally decided cases (as reported by the Singapore Law Journal).

    In regard to the third paragraph, substantive arguments are not based on experience and qualifications. Experience and qualifications would enable you to form better substantive arguments, but so far, you have not formed any, other than your assertion on experience. A Senior Counsel arguing that security guards can stop people from taking photos on a public street is not likely to win a first year law graduate who asserts that public streets are free for the taking.

    As stated before, as a defendant, I do not have to show that "there is no law" - the plaintiff (ie you in this case since you are trying to bring the claim), have to show that there is a law supporting your cause of action. If you can't show a cause of action, you will fail before I even stand up to present my defence. And once again, my research is not founded on the Internet, like yours.

    However, if I read your statement ""Your honor,I am correct and you have to accept my claim because I cannot find it on the internet?" purposively, yes there is a specific Order in the Rules of Court which states that a defendant can move to strike out the Statement of Claim on the grounds that "it discloses no reasonable cause of action" - I previously drew this to your attention in the earlier thread (second on the first link) - Order 18 Rule 19 of the Rules of Court.

    I understand your position that it appears morally wrong or offends your sense of justice that someone can use an image without a model release. And I am telling you that unfortunately, there is no legal mechanism or cause of action today, in Singapore, which allows you to redress that feeling of injustice you may have.

    Back to my security guard example, the guard (and/or his management) feels it is morally offensive to have people snapping at their buildings without permission - but once again, he is not able to do anything about it because the law doesn't provide for that.

    In the same way, in Singapore, we do not have any privacy laws or data protection act. Hence, no matter how you feel unjustified about having your personal particulars circulated to database companies after lucky draws, or having telemarketers call you every hour to sell you products, you cannot do anything about it until laws are made to address this.

    There is no undermining of photographer's integrity here - just a healthy discussion and exchange of views.

    Quote Originally Posted by randytay View Post
    Vince, read from my previous post and you'll know how I know. Seriously, dont you ever get tired of this? From my own observation and from countless PMs, I see that when it comes to the topic of "Law", you want to be top dog in the foru and just want to have the final say, if that is what it takes so out lives move on, ok, have the final say.

    Like I say, we can go on arguing till the cow comes home and you will never agree with me since you DO NOT have that experience "yet". If you want to know, just go ahead and pitch for a job with an agency, beats trying to research all the words from the internet.

    Substantive arguments are based on both experience and qualifications, how else do you substantiate what you say? If what I say in front of the judge do not count since I do have a lawyer who can guide me, so telling the judge "Your honor,I am correct and you have to accept my claim because I cannot find it on the internet?" is considered substantive?

    The right to take action is not what the industry thinks, its because the image maker uses the likeness/image of another person for monetary gain without permission which is not related to journalistic usage. Is it so hard to understand?

    Anyway, seriously, end of discussion. If you think its not important, then just don't do it and continue to undermine a photographer's integrity.

  14. #14

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    On an aside, I find it curious that you keep saying "End of discussion", as if trying to squeeze the last word in edgewise. In a forum, discussion continues as long as someone has a view to share and no attempts to stifle discussion or prevent further responses are likely to be welcome.
    It simply meant: I am very sure you have better things to do with your life than trying to argue with me in a forum. So get over it and get a life and move on. This will be my last post on this issue with you.

  15. #15
    vince123123
    Guests

    Default Re: Discussion on Model Releases (or lack thereof)

    I draw your attention to Section 30 of the Copyright Act which states as follows (emphasis mine):

    --------

    30. [...]

    (3) The operation of subsection (4), (5) or (6) in relation to copyright in a particular work may be excluded or modified by agreement.

    [...]

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

    (a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph, 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.

    --------

    Hence the position taken by the Copyright Act is, copyright belongs to the commissioner unless an agreement to the contrary is made.

    Quote Originally Posted by randytay View Post
    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.
    To photographers, please ensure you have an assignment clause in your agreement if you want to retain copyright in your works.

    You don't want to be caught infringing on copyright because you thought that the industry practice and belief is that photographer should have copyright by default and later find out that it has no basis in law.

    Know how to protect your rights the right way based on sound legal basis, and not the wrong way based on misguided industry beliefs of justice.

  16. #16
    vince123123
    Guests

    Default Re: Discussion on Model Releases (or lack thereof)

    You of course, have the prerogative to move on if you wish.

    I'll just continue sharing my views on what I believe the correct position on legal issues, especially when I see that there are wrong views being propogated - if people rely on these wrong views, they may find themselves facing legal exposure and I'm trying to prevent that by sharing what I know, for the good of the community here.

    Quote Originally Posted by randytay View Post
    It simply meant: I am very sure you have better things to do with your life than trying to argue with me in a forum. So get over it and get a life and move on. This will be my last post on this issue with you.
    To the rest, feel free to continue the discussion on model releases if there are any other questions or views to share. I would think its more ideal to have a discussion dedicated to a topic on a single thread, than to have a splattering of questions on many threads - this would allow people to quickly search and find an answer to this thorny issue.
    Last edited by vince123123; 21st December 2007 at 12:37 PM.

  17. #17

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    I draw your attention to Section 30 of the Copyright Act which states as follows (emphasis mine):

    --------

    30. [...]

    (3) The operation of subsection (4), (5) or (6) in relation to copyright in a particular work may be excluded or modified by agreement.

    [...]

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

    (a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph, 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.

    --------

    Hence the position taken by the Copyright Act is, copyright belongs to the commissioner unless an agreement to the contrary is made.
    Duh, you sure you reading it correctly? Let me rephrase that:



    (a) Randy makes, for valuable consideration, an agreement with Vince for the taking of a photograph, the painting or drawing of a portrait or the making of an engraving by the other person (from the perspective of Vince, i.e, Randy); and

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

    the first-mentioned person (i.e, Randy) 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.

    This is why sometimes having "plain English" is better than reading legal jargon. The industry do not create law, we merely have to know what it is when we practice in our chosen filed in the industry, using it in "plain English" of course.

    I rest my case.
    Last edited by randytay; 21st December 2007 at 03:35 PM.

  18. #18
    vince123123
    Guests

    Default Re: Discussion on Model Releases (or lack thereof)

    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.

    Using your idea of rephrasing the text of S30(5), the correct interpretation in my view should be:

    (a) The client makes for valuable consideration, an agreement with the photographer for the taking of a photograph....by the photographer....

    (b) The client shall be entitled....

    Your flaw in interpretation is reading the "other person" as the first mentioned person. The "other person" refers to the "another person" in Section 30(5) and not the first mentioned person. If Section 30(5)(a) intended to refer to the first mentioned person, it would have said used the term "first mentioned person" as is the case in the later part of Section 30, and not used another term called "the other person".

    Now, I can use my "experience" on statutory interpretation as you have did in the other thread (you are a professional photographer, and have admitted having no experience in law or statutory interpretation), but instead I choose to refer you to some legal authorities which interpreted this Section to reinforce my own interpretation (emphasis mine):

    --------------
    Source: Ng Siew Kuan (She's a well known lecturer on copyright issues in NUS) - Singapore Academy of Law Journal, [1992] 4 SAcLJ 32

    1. Author’s Works
    As a general rule the ownership of the copyright in an “author’s work” will belong to the author of the work, that is, the person who gave the work its form of expression.77 There are, however, exceptions where the copyright in the work does not vest in the author. These are as follows:

    (a) [...]

    (b) in the case of certain limited categories of commissioned artistic works, namely, a photograph, the painting or drawing of a portrait or the making of an engraving, section 30(5) provides that the copyright belongs to the commissioner (that is, the person who
    commissioned the taking of the photograph etc.) and not the author (that is, the person commissioned to do the work).

    --------------

    Source: Ng Loy Wee Loon, (another well known lecturer), Singapore Academy of Law Journal; [1996] 8 SAcLJ 80; referring to Section 30(5).

    Thirdly, if the author is commissioned by another person to take a photograph, to paint or draw a portrait or to make an engraving, the person who commissioned the making of the work is entitled to the copyright subsisting in the photograph, painting, portrait or engraving.

    --------------

    Source: The Law of Copyright in Singapore; George Wei, at page 387 (this is the leading textbook on copyright law in Singapore)

    Section 30(5) deals with certain types of "commissioned" works. It provides that where a person makes an agreement with another person for valuable consideration to take a photograph...then so long as the work is made in pursuance to the agreement, the copyright in the work (if any) will belong to the first mentioned person (the person "commissioning" the work), and not the other person, even though the other person is the author.

    --------------

    The reason why I have chosen to rely on secondary sources (ie articles and textbooks written by academics) instead of primary sources (ie reported case law) is because I am not able to locate any reported cases deciding on Section 30(5).

    There is nothing wrong in using plain English. Plain English is often used even in statutory interpretation, but your interpretation of Plain English apparently doesn't quite gel with what the Statute actually says.

    You are of course aware that interpretation of statutes are done by Judges, and not persons in the industry. Hence you should be aware the background of the person you are trying to convince .

    If you still think your interpretation is correct, do elaborate on your view, and provide substantive references supporting your view.


    Quote Originally Posted by randytay View Post
    Duh, you sure you reading it correctly? Let me rephrase that:

    (a) Randy makes, for valuable consideration, an agreement with Vince for the taking of a photograph, the painting or drawing of a portrait or the making of an engraving by the other person (from the perspective of Vince, i.e, Randy); and

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

    the first-mentioned person (i.e, Randy) 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.

    This is why sometimes having "plain English" is better than reading legal jargon. The industry do not create law, we merely have to know what it is when we practice in our chosen filed in the industry, using it in "plain English" of course.

    I rest my case.
    Last edited by vince123123; 21st December 2007 at 04:47 PM.

  19. #19

    Default Re: Discussion on Model Releases (or lack thereof)

    Quote Originally Posted by vince123123 View Post
    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.

    Using your idea of rephrasing the text of S30(5), the correct interpretation in my view should be:

    (a) The client makes for valuable consideration, an agreement with the photographer for the taking of a photograph....by the photographer....

    (b) The client shall be entitled....

    Your flaw in interpretation is reading the "other person" as the first mentioned person. The "other person" refers to the "another person" in Section 30(5) and not the first mentioned person. If Section 30(5)(a) intended to refer to the first mentioned person, it would have said used the term "first mentioned person" as is the case in the later part of Section 30, and not used another term called "the other person".

    Now, I can use my "experience" on statutory interpretation as you have did in the other thread (you are a professional photographer, and have admitted having no experience in law or statutory interpretation), but instead I choose to refer you to some legal authorities which interpreted this Section to reinforce my own interpretation (emphasis mine):

    --------------
    Source: Ng Siew Kuan (She's a well known lecturer on copyright issues in NUS) - Singapore Academy of Law Journal, [1992] 4 SAcLJ 32

    1. Author’s Works
    As a general rule the ownership of the copyright in an “author’s work” will belong to the author of the work, that is, the person who gave the work its form of expression.77 There are, however, exceptions where the copyright in the work does not vest in the author. These are as follows:

    (a) [...]

    (b) in the case of certain limited categories of commissioned artistic works, namely, a photograph, the painting or drawing of a portrait or the making of an engraving, section 30(5) provides that the copyright belongs to the commissioner (that is, the person who
    commissioned the taking of the photograph etc.) and not the author (that is, the person commissioned to do the work).

    --------------

    Source: Ng Loy Wee Loon, (another well known lecturer), Singapore Academy of Law Journal; [1996] 8 SAcLJ 80; referring to Section 30(5).

    Thirdly, if the author is commissioned by another person to take a photograph, to paint or draw a portrait or to make an engraving, the person who commissioned the making of the work is entitled to the copyright subsisting in the photograph, painting, portrait or engraving.

    --------------

    Source: The Law of Copyright in Singapore; George Wei, at page 387 (this is the leading textbook on copyright law in Singapore)

    Section 30(5) deals with certain types of "commissioned" works. It provides that where a person makes an agreement with another person for valuable consideration to take a photograph...then so long as the work is made in pursuance to the agreement, the copyright in the work (if any) will belong to the first mentioned person (the person "commissioning" the work), and not the other person, even though the other person is the author.

    --------------

    The reason why I have chosen to rely on secondary sources (ie articles and textbooks written by academics) instead of primary sources (ie reported case law) is because I am not able to locate any reported cases deciding on Section 30(5).

    If you still think your interpretation is correct, do elaborate on your view, and provide substantive references supporting your view.
    not to butt in but are you both arguing about the same law? as in US vs Singaporean?

  20. #20
    vince123123
    Guests

    Default Re: Discussion on Model Releases (or lack thereof)

    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.

    Quote Originally Posted by garou12 View Post
    not to butt in but are you both arguing about the same law? as in US vs Singaporean?

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