Senior Sessions: Client was under 18 at the time of session but is now over 18.
Commercial client wants to purchase usage rights of images of the senior.
Is a new model release required?
The answer to the questions of whether a new model release is required with a client who was under 18, but is now over 18, in order for you as a photographer to sell a commercial license is largely dependent on the contents of the model release already signed along with how your state handles contracts with minors.
In short, a minor can legally enter into a contract.
However, whether the contract is enforceable will depend on a number of factors.
One of the most important principles to be aware of is that contracts are voidable but not void when a minor signs. Wait, what? Let’s get some definitions clear before we go any further.
The term “minor” is used in legal contexts to describe a person who is under the legal age of an adult. In almost all cases, an “adult” is a person who is 18 or older.
Voidable but not necessarily void
What does it mean to say that a contract is voidable?
The term “voidable” means that the contract can be invalidated. When it comes to contracting with a minor (someone under 18), the general rule is that such a contract is voidable by the minor. This rule has been established by the courts to protect younger individuals who may not fully understand the consequences of certain contracts.
Minors are believed to inherently lack the capacity to contract barring any contrary evidence or any specific exception created by the courts. As a consequence, courts and statutes provide minors with the ability to exit the contract at the minor’s discretion.
Note that this only applies to the minor, not to both parties. What this means in practice is that while the contract is still valid, the minor can basically decide that they no longer want to be bound by the contract. Because such a rule can lead to either abuse or minors can find themselves unable to contract, exceptions have been carved out of the general voidability of a minor’s contract.
Some of these may apply to a model release, depending on your state and how the model release was drafted.
The term “void” when used in a legal context means that a transaction or contract is considered to have never happened. Just because someone was a minor when they signed a contract and now they are not does not mean a contract is necessarily void.
So how do you avoid a contract being invalidated or a minor client (or former minor client) voiding your contract?
Avoiding a contract (in this case a model release) being voided by a former minor client is really about making sure that your model release is written specifically to address the requirements of the law in the state in which you are working.
One exception is made for employment. For example, California and New York have passed legislation that limits such a minor’s right to negate the contract. Some States provide for courts to approve the contract so that the minor cannot later attempt to void it. Some states require a work permit for a minor to undertake commercial work. Another exception is made for entertainment contracts, with many states requiring minors be held to these without the option to disaffirm.
Significantly, some states provide that contracting with the minor’s parent rather than directly with the minor can bind the minor before and after the age of 18. If you are unsure, check in with your attorney or the Department of Labor or equivalent in your state.
How does a minor (or former minor) void a contract?
They need to avoid ratifying the contract, by deed or word. A minor can only void the contract while he or she is still a minor. The minor can make this decision at any time and even if the contract has been fully performed (both parties have fulfilled their contractual obligations).
Some states allow for minors to void contracts within a short time after their 18th birthday, such as six months; this means you need to know how it works in your state. The idea is that if the former minor does not do anything to negate the contract by the time they turn 18, or the time set by the state elapses, courts may refuse to void the contract. By not acting in a way that disaffirms the contract, the minor is found to have “ratified” the contract.
A minor can seek to void the contract in two possible ways. The first is for her or him to file a lawsuit in which they ask the court to void the contract. The second is to raise an affirmative defense, to being sued, of “lack of capacity.”
What happens if they void the contract? What rights do you have as a photographer?
There are some important clarifications to what happens when a minor voids a contract. Most importantly, he or she must disaffirm the entire contract. What this means in simple terms is that the minor cannot decide they like some provisions and not others, and cannot decide to only abide or enforce provisions that work for them.
Also, just because a contract is voided by the courts, the minor may be required to pay for the goods received, or return goods received under the contract – for example, prints, or albums. If you have agreed to the former minor utilizing images you have photographed in their portfolio or on social media in exchange for permission to use their image for a commercial purpose (or to endorse a product), and they have sought to void the contract, it is important to note that the entirety of the contract is now void.
That is, those licenses may be effectively revoked, and they may not have the right to use the images that you own copyright over in any way. You would, as the photographer, have the right to compensation should they continue to publish, or benefit from publication of those images.
So what are best practices for model releases for minor photography subjects?
- Make sure the model release is written specifically with the State in which you are working in mind, as well as the kind of photography you are producing, and the type of uses you forsee.
If you forsee a senior session could be used in a commercial manner later, even though that may not be the client’s initial intent, be sure that the model release specifically addresses this possibility.
If yours does not, you may need to go back and get the now adult model’s signature on a model release that does include reference to commercial use (and use of image to endorse a product or book or service). This is invariably more complicated than simply making sure your release in on-point in the first place.
- Have a parent or guardian authorized to act as an agent countersign the model release as well as the minor.
In the best of all worlds, the subject (or model) should sign the release, but when you are dealing with a minor (18 in the majority of states, and 19 or 21 in others), because a minor may not understand the terms of a release, the signature of a parent or guardian is required before using a minor’s name or image.
As a practical matter when dealing with an agent (whether parent, guardian, or commercial agent), including a statement to the effect of, “I am the authorized agent for [name of model]” above the agent’s signature line helps to make sure that they have the authority to sign for the minor and grant a release.
- Have the model release witnessed by someone who is not the photographer to verify the model’s signature or the signature of their parent, guardian, or agent – this can be an assistant or employee who is over the age of 18. Some industry leaders suggest making copies of ID for both the model and the parent or guardian; while this may be helpful, this also opens you up to information security obligations so make a decision one way or another and hold yourself to it.
- Blanket commercial use model releases sound like they are a great solution – but they may not protect you if the commercial use of the image could be considered to be use of an individual’s image to endorse a protect or business or function to defame the model (used in a way to infer characteristics, behavior or endorsement that would require an affirmative approval): some examples of this include, images used to advertise certain medications, . If you do want to use a blanket commercial release, we would encourage you to speak to an attorney who is familiar both with the law in your state and with the photography industry.
Ultimately, whether you need to go back and get another model release when a former minor client is now over 18 and you have a request for a commercial licensing deal for images featuring that former minor, is going to be very much dependent on what the original model release provides for, and who signed it.
If you have a relationship with the client, a discussion with them about the proposed use as a heads up may be beneficial for building goodwill even apart from the matter of whether you can sell a commercial license to those senior sessions images without contacting them.
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