A Second Lesson on Contracts: Model sues Photographer After Pics Used on Erotica eBooks, Photog Says It’s Not His Fault
About a month ago I shared the tale of one model who sued a photographer after her lingerie-clad photos showed up porn sites, strip clubs, erotica ebooks, and other embarrassing places. The model alleged that she had a verbal agreement with the photographer limiting how the images would be used, and that he licensed them for all sorts of uses which she did not approve.
Here are a few of the misuses (source):
The photographer has a different take on this sordid tale. According to the article he posted on PetaPixel, he didn’t license the images to the porn and other sites; he says that they were misused and/or pirated:
Why I am I being sued? It revolves around images that got misused or were just outright stolen and the model is blaming me for it.
It seems that many of her pictures ended up on erotic book covers, escort ads, and strip club ads. To my understanding she is claiming I either sold these directly to these people or through Shutterstock. As for myself, I only sold her images through a stock agency with a terms of service that did not allow pornographic/defamatory use — I have never sold an image of hers directly to someone.
The images I took were also posted by the model on her Facebook page, and eventually I even found pirate sites giving away the images for free. So it is very possible these misuses could have been from her Facebook or from those pirate sites, and it is also possible someone could of bought the image from an agency but potentially broke the TOS. I don’t know exactly what happened yet, but that’s my best guess.
When I covered this story last month I assumed that everything the photographer did was covered by the written contract, and it turns out I was right. But one point where I erred was in assuming that the photographer had been responsible for licensing the images for salacious uses.
He also said that he made no promises about how the images would not be misused. He’s right when he said that there’s no way he could have followed through on that promise:
During the shoot I also told the model that the images would be for sale for stock photography and explained how stock photography works. I explained to her that these agencies prohibit pornographic use in their terms of service. Another person who often helped me from time to time was present during the shoot and witnessed everything.
I said nothing more and I didn’t lie. I did NOT promise her that her images would not be misused — that’s impossible in our right-click-save-as days. She saw the images before signing the model release, was happy with them and posted them herself on her Facebook page.
It’s not clear how many photos were posted on the model’s FB account, but some were:
This is a right mess and since I wasn’t there I will have to leave this at he-said, she-said, although I will add the caveat that the photographer comes across as more believable. If nothing else, his take on what he could and could not control was a lot more sensible than the model’s claim that there was an oral agreement. And then there’s his claim of having a witness, which again is sensible in a "cover his ass" kind of way. (it’s a shame there’s no audio recording)
All in all, this is another lesson in why one should avoid verbal agreements, and if necessary one should also document how one is avoiding making an oral contract.