It was brought to our attention during a recent New York Fashion Week that some brands, namely, one particularly popular emerging menswear brand (no name-dropping, sorry), were requesting that models sign release forms that extended to images taken of them on the runway and backstage. While this may not seem to be particularly problematic at first, if you consider the parties involved, the totality of the circumstances and the rights that are being signed over, it could actually amount to a pretty troubling scenario, save for the fact that these releases, if challenged in court, would probably been deemed unenforceable. Here's what happened ...
In order to have a valid and thus, legally binding, contract (aka, one that can be enforced), you need a few things. The legal buffs among us know right off-the-bat that you need an offer, acceptance and consideration. Put simply, this looks like ... Person A: "If you cut my grass, I will give you $20." Person B: "Ok." This is an offer and acceptable. The consideration requirement is met, too, as each party is giving up something in the exchange. Person A is giving up $20, and Person B is giving up his time/effort.
Is that what we have if a model shows up for a show and someone from the brand asks him to sign a release form? Maybe. Maybe not. While the release on its face looks like a contract, and the model is giving something up (the right to claim some form of ownership or monetary interest in the photos after the fact), it does not seem that the brand is actually giving up anything.
If we assume that the brand is "giving up" a spot in the show to the model who signs the release, then maybe we have some consideration, but even then, it seems the contract could be deemed void for a few reasons, but most obviously, because it is arguably unconscionable. Stay with me. A contract is typically considered to be "unconscionable" when it includes terms that are extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power. In determining if this is relevant here, we look to: 1) the terms of the image release; and 2) the parties involved, their respective bargaining power and their respective levels of sophistication.
The terms of the image release at issue (and likely similarly utilized release forms) are interesting, to say the least. Turns out, this was not your average release, as it gave the brand the right to use images that were taken of the models in a commercial manner after the show. The average individual would, in fact, find this troubling, as indicated by the uproar that occurred when Instagram announced that it was changing its Terms of Service to include a provision that allowed it to use users' photos in ads on the site without compensating them. It is even more problematic for models, who make their living almost entirely from the commercial use of their images. (Runway shows pay very little. It is ad campaigns that are the money-makers in modeling). So, essentially, this brand was asking models to sign away their rights to images that could be used in ad campaigns and/or other marketing materials without anything (think: MONEY) in return.
As for the parties ... In terms of the bargaining power and sophistication analysis, things are not looking so great for this menswear brand (or for any of you designers who are thinking of utilizing a similar tactic this fashion month). By approaching models backstage before the show with the release form (as opposed to sending it to their agencies), it seems like a bit of a tricky situation. If the models do not sign the release, will they still be permitted to walk in the show? Some probably wondered that. It is also no secret that in the modeling industry, there is an overwhelming notion that "uncooperative" models get a bad reputation and are subsequently not booked. So, it seems that the option of saying, "No, I'd rather not sign this release" is not really an option after all. Thus, the brand is in the power position.
Couple this with the fact that the sophistication level of the parties is grossly unequal. I looked at the lineup of the show of the brand that I am primarily basing this analysis on, and it looks like this: of the 30 models that walked, for at least 18 of them, English is not their first language (and for some of them, who I have spoken to at length, their English is quite poor); and at least two of them were brand new to modeling as of that season. Thus, their familiarity with such concepts and their ability to understand the terms of a legal document is extremely limited (and rightfully so).
It is also worth noting that this is one of the exact reasons that agents work on models' behalf. This is also a factor that weighs in favor of the image release being unenforceable. It seems that instead of providing the models' agents with these releases (which really would not be all that difficult these days ... email!), this brand went for the easy targets, the models. Not cool.
So, designers if you want models to sign image release forms that will actually be enforceable, my suggestion is this: Give the release to their agents. Approaching them backstage before the show makes for a problematic situation. Not only does it just look really bad (and imply that you are not acting in good faith), it will result in a document, that if challenged, will likely be deemed unenforceable and useless. So, let’s try to avoid this kind of behavior this season, everyone.
* This article was initially published in March 2014.