[rollei_list] Re: What good is a model release now?

  • From: "Austin Franklin" <austin@xxxxxxxxxxxx>
  • To: <rollei_list@xxxxxxxxxxxxx>
  • Date: Wed, 9 Feb 2005 12:55:08 -0500

Hi Eric,

> Compensation in this instance is completely dependent upon use;
> that is the convention of the industry. If the use was not as
> agreed, then the payment was not appropriate.

And...you, nor I, know what was agreed upon or not agreed upon.

> In terms of whether the mistake was honest or not, based on what
> I have read/heard there is a legitamate claim here. Many honest
> mistakes/accidents happen which cause people and entities loss or
> harm, and they are entitled to recover.

Aside from the actual compensation, punitive damages take into consider the
level of negligence.  And again, without knowing what the actual facts of
the case are, everything is simply speculation.  Of what I have seen
published about this case, there was no maliciousness, or gross negligence.
Gross negligence, is typically knowing something is wrong and ignoring it.
Negligence is simply not knowing something that you "probably" should have
reasonably known.  In this case, someone apparently believed that they had
rights to use the image, when perhaps they did not (and we don't know).  The
negligence in this case appears that someone clerically didn't check
physically what the actual agreements were or were not before using the
image.  Someone may have simply misfiled the image into the "we own these
images" bin.

It's cases like this that make tort reform necessary.  I'm for the guy
getting compensated fairly, and for *possibly* some level of punitive
damages, depending on the circumstances of the case, but as I said, a $15M
award is, by any sense of reason, absurd.  They guy just posed for a
picture, and was paid.  No one lost a life, and nothing egregious happened
to him or anyone else as a result of this.  At worst, he simply wasn't
compensated fairly...and keep in mind, they offered to pay him, plus quite a
bit more then he could have ever been paid for this ($100k) when this was
brought to their attention.



> -----Original Message-----
> From: Austin Franklin <austin@xxxxxxxxxxxx>
> Sent: Feb 9, 2005 12:17 PM
> To: rollei_list@xxxxxxxxxxxxx
> Subject: [rollei_list] Re: What good is a model release now?
> Hi Richard,
> >    Its worth finding the news story and reading it. The
> > fellow's picture was used on Taster's Choice lables for
> > years without permission or payment.
> The story I read, said he WAS in fact paid.  Again, without
> having copies of
> the documentation or being privy to the actual agreement made (which
> typically, is open to interpretation), it's hard to know what is or isn't
> here.
> > One function of the civil court is to attempt
> > to stop undesirable behavior by means of punitive damages.
> Well, if something is done by an honest mistake...then how is this a
> deterrent?  Accidents are called accidents because they happen by
> accident.
> If they were done on purpose, they would be called unpurposes.
> > Many businesses indulge in
> > behavior which is unethical because they find it profitable
> > and think they are untouchable.
> I do not believe that is the case here.  There was no mention (or
> accusation) of any intentional violation of ethics in the articles I read.
> > The size of the award here
> > has more to do with stopping the behavior than with actual
> > damages to the model.
> How do you believe this stops anything?  I think the results will be less
> work and less pay for models.  From what I can tell, when he brought this
> issue to their attention, they made what was IMO a fair and
> reasonable offer
> to him ($100k).  On this alone, if there was no proof of
> maliciousness (and
> there was no mention of that from what I read), the courts should have
> thrown it out and told him and his lawyer to take the money and be glad.
> IF you have a URL of an article that has more pertinent details of this
> case, I'd appreciate seeing it.
> Regards,
> Austin

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