RE: portaits: verbal agreement and assignment of rights (work forhire)

I am sure that many lawyers will respond in depth, but the "School of Hard Knox" tells me that the model has a real problem with a verbal agreement and should have never proceeded without an agreement.

If you let us know her name we will let you know which Internet sites she appears on in the future. (Said with tongue in cheek, but high likelihood of being the case.)

Greg Erkins
Non-lawyer

-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]On Behalf Of Gallotti Alberto
Sent: Friday, September 08, 2000 1:54 AM To: Multiple recipients of list
Subject: portaits: verbal agreement and assignment of rights (work forhire) Importance: High

This may be an issue that has many times been dealt with, but there may be some new turnouts that I hope are stimulating to the community.

I am an Italian lawyer, and my client, a model, went to Massachusetts, to have pictures done for a calendar to be sold this winter. The agreement
(verbal) was that the photographer takes the pictures at the model's
expense. The model pays up front 50% of the compensation in consideration of the work, the rights to cover all the expenses. The model, very famous here in Italy, promises to promote the photographer in Italy by naming him in and all publications of the stills.

Before having the pictures taken, I tried to have a clearance of rights signed by the photographer, in order that any sort of claim of copyright over the stills would be already disciplined by a full and irrevocable assignment. But my client was never able to have him sign this, "because he is a real friend, and he is going to have a great opportunity".

Well as you can expect, when the second half of the payment is to be sent, once the shooting and the development - enlargement of the photos are made, here comes a fax from the photograph's lawyers in which the photographer
(now called "artist") licenses the model for one year and only for the media
of the calendar, the pictures, in consideration of the full sum, and a profit participation.

No mention of work for hire, as agreed, no mention of satisfaction of the model over the photos, no mention of the protection of the model against improper use of the photos (many photos are nude, and the model makes a very careful use of her nude pictures.

Under Italian copyright laws, and if I remember correctly under US laws, this is a work for hire, proven by the fact that the model paid the expenses, and by witnesses attending the verbal agreement.

But how does the model get the photos? Signing the agreement would be a forced manifestation of will (unconscionability issue?) that would put my client in a more difficult position. Legally, I don't think the photographer has any right, if not that of having his name and money. But factually, he is blackmailing the model as he keeps the photos and negatives.

Thanks for any suggestion

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Prof. Alberto M. Gallotti, Esq.
A F M A   Arbitrator
Studio Legale: via Lisbona, 9
00198  - Rome - ITALY
e-mail: delphis[_at_]mix.it
Tel & fax +39(0)6-8842030
Tiscali fax: +39-1782249822
http://firms.findlaw.com/Alberto/.