Saturday, 29 November 2008

The use of chaperones and age appropriate work

In a recent conversation regarding photographing the under 18s the following was discussed, and I thought it appropriate to post if here too as it has a real value for those youngsters just starting out in a modelling career.

QUOTE:
It is horrible that we have to have chaperones because it's such a nasty world isn't it!


I agree, it does sound horrible. However, There are two main issues here to do with age and the use of a chaperone.

I firmly believe that the priority in any shoot must be safety.

From a models perspective after having had a few shoots with a photographer you may feel happy not to be chaperoned, (and I personally do not like people watching as I work, but tough its there for a reason).

If you are going to use a chaperone on your shoots make sure the photographer is aware of this and clarify what conditions they have. Some photographers insist the Chaperones stays outside, others just that they remain outside the studio area. A few will seize on them gleefully as slave labour to hold reflectors or lights!

No photographer will tolerate a chaperon interfering with the shoot in any way however, so make sure the person you choose is trustworthy sensible and understands this as you WILL be blamed for any misconduct by your chaperone. Jealous boyfriends seeking to control shoots are a sure-fire way of having your career wrecked before it even gets started. Generally a female chaperone will be less of a problem.

Secondly, there is a legal implication in entering into a TFP agreement. There needs to be a Model Release and this is a contract (and) it is extremely important that, as a model, you should fully understand the implications of entering into a contract.

The TFP contract covers a number of areas, one of the key ones is the concept of Copyright. In a TFP context is simply the RIGHT to allow a COPY of a photograph to be created. The creation of a copy of any photograph without the copyright holder’s permission is illegal. By default the copyright holder of ANY photograph is the PHOTOGRAPHER.

This remains the case EVEN WHERE THE PHOTOGRAPHER HAS BEEN PAID BY THE MODEL or another third party to take the images. Unless a model has the permission of the photographer it is illegal to create any further copies of those images.

This means that should you wish to use any photographs taken of yourself you WILL require the permission of the photographer first. For example the fact that a photographer has emailed you a few images after a shoot does not permit you to copy them to an online portfolio or send them to a magazine.

It follows that should you enter an agreement with a photographer where for example you have waived or reduced your fees for the right to use some of the images yourself, that you ensure the photographer has given you that permission in writing and that the permission covers all the situations where you wish to use those pictures.

In some Countries such as the USA a model can claim rights to their own image. This is not currently the case in the UK or many EU countries. A photographer can therefore, as the copyright holder, permit the use of any photograph he takes without needing the permission of the model as long as he does not in the process breach other laws such as defamation.

A PHOTOGRAPHER DOES NOT NEED A 'MODEL RELEASE' IN ORDER TO PUBLISH A PHOTO IN THE UK

So why have a guardian or parent present? Well not just for safety, but also for genuine legal reasons.

What is not generally appreciated is that there are rules when contracting with minors (under the age of 18), and generally seeking, anyone who contracts with an infant or minor is doing so at their own peril. The reason for this is that the law gives to minors the ability to void, or exit the contract as they see fit. The most common justification for the rule is to protect minors from assuming obligations which they are not capable of understanding. It is obvious to see that this will lead to harsh results, so some general exceptions have been created, however, as far as I can see (and I'm no lawyer) none of the exceptions cover photography.

the bottom line is that safety first, but also consider that the TFP contract (Model Release) for minors should be sighed by the guardian in order to also protect the photographer as much as the model.

2 comments:

Andrew Frost said...

I was then asked the following:

But could this still fully
apply when both parties (photographer and model) are under 18 years of age as both parties could be considered to be needing guidance when signing releases, would these need to be witnessed by an adult to have any standing ?.

Andrew Frost said...

To which my reply was:

My understanding is that both minors would be under the age of contract, and it is a presumption at law that every person is entitled to enter into a contract unless an exception applies. One of those excpetions is for minors. The age of contractual capacity for individuals is the age of 21 at common law, however this was reduced to the age of 18 in 1969 by Act of Parliament. Reaching the age of 18 is known as attaining 'majority'. Minors are those who have not attained the age of 18.

Minors are permitted to enter into contracts for limited purposes, and the test is one that focuses on the nature of the transaction, and whether the minor is of an age such that they capable of understanding it.

The general law states that contracts entered into by children that are for 'necessaries' are binding on children, as are those for apprenticeship, employment, education and service where they are rightly said to be for the benefit of the child. Contracts for necessaries are for the supply of food, medicines, accommodation, clothing, amongst other things but generally excludes conveniences, and products and services for comfort or pleasure. Commercial or 'trading' contracts are excluded. These latter contracts are voidable at the option of the minor, and whether the minor may avoid the contract depends on the nature of the contract.

Contracts where the minor may avoid the affect of the contract are for the acquisition of a legal or equitable interest in property of a permanent nature, such as shares, land, marriage and partnerships. Other contracts require positive ratification in order to be enforceable, which includes contracts for debts and the sale of goods that are not for necessaries. The ratification must take the form of an acknowledgement that the debt is binding after attaining the age of 18. Fresh consideration is not required for the ratification to be complete.

Restraints of trade may be unenforceable against a minor, even if they would be enforceable against an adult.