Distinction: Model Release and Agency Contract
A distinction can be made between two types of contracts: the “model release” and the model agency contract.
The “model release” is usually a direct contract between the model and the photographer. It is better to clarify the respective rights and obligations in more detail than superficially. After all, it should not be underestimated what is ultimately at stake: for the photographer, their copyright in the photo, and for the model, the right to their own image as their own personal right.
If, for example, it is not expressly clarified where the limits of the photographer’s permitted use of the images lie, there can be a rude awakening if the model’s image is suddenly found on dubious websites or is edited in such a way that the model does not recognise themselves.
Trust is good and especially important in this contractual relationship, but control and transparent regulation of the limits are even more critical. For this reason, it is essential to ensure that the following aspects of content are regulated:
- The subject matter of the contract (time, place, type of photographs)
- Use or intended use of the photographs (if necessary, exclusion of individual purposes, such as pornographic purposes or similar)
- Rights of use for the model (keyword: self-promotion)
- (In-)revocability of the consent
- Remuneration (type and amount of fee, travel expenses, taxes)
In contrast, the agency contract is not concluded directly between the model and the photographer but between the model and a model agency. This agency then takes over the mediation of the model, thus procuring orders for the model. In return, the agency receives a commission.
Model agencies are especially popular with inexperienced up-and-coming models, as they also receive some training to further their careers. Therefore, it is typical and generally permissible that a fixed contract period of two or three years is initially agreed upon, during which the model cannot terminate. The reason: the agency initially invests more in the model than it earns from them. If the model were to quit as soon as she has completed the “basic training” and accordingly receives more lucrative assignments, it would be a disadvantageous loss-making business for the agency. But even here, some limits must be observed to protect the model from unreasonable disadvantages.
The Higher Regional Court of Celle recently passed a judgment of decisive importance on these limits (judgment dated 01.04.2021, ref.: 13 U 10/20).
Agency Contract: Inadmissible Discrimination of the Model
The case: A model concluded a contract with a model agency at the age of 18, which was initially limited to five years. She was to receive career advancement and, in return, pay the agency 25% of the income from the orders placed. During these five years, (ordinary) termination was excluded. It was also agreed that the contract would be renewed for two additional years unless it was terminated nine months before expiration. The first notice period expired, so the agency extended the contract. Before the expiry of the further two years, namely, after about six years, the model quit and refused to continue paying the agency the commission. As a result, the latter sued for continuous remuneration until the end of the contract period.
The decision: The Higher Regional Court ruled in favour of the model. The termination was effective, even if it took place outside the agreed-upon notice period. Thus, the model would not have to make further payments to the agency.
The reasoning: The Court cited § 627 German Civil Code (BGB) as justification. According to this, a service relationship, provided it is not an employment relationship, can be terminated without notice even if there is no reasonable cause. Such cause usually is always required for termination without notice. However, if the services are of a “higher nature” and are based on a “special trust”, it is not necessary. Such services are services of doctors, consultants, but also artist agencies, to which model agencies also belong. However, termination without notice is expressly only possible if no “permanent employment relationship” exists. In this case, such a relationship existed due to the fixed term of the contract. How does it work?
The judges declared the pre-formulated contract clause, according to which the contract term is extended by two additional years, to be invalid. This extension would unreasonably disadvantage the model unilaterally. It is possible in principle to stipulate a specific period without the possibility of termination, as the contracts and the promotion of the models would otherwise not be profitable for the agency (see above arguments).
On the other hand, however, the model must retain the option to terminate the contract if the agency’s performance does not meet expectations, i.e. if the agency does not promote the career as promised. In this case, the model would be unilaterally dependent on the agency and unreasonably disadvantaged if they could not withdraw from the contract promptly. This unfairness is all the more true because the age of models is a significant career factor – job offers decrease significantly with increasing age. If a model cannot get out of a (bad) contractual relationship for a long time, this can, in the worst case, ruin a successful career.
Legal Expertise and Advice from Schlun & Elseven Rechtsanwälte
Do you have questions or problems in the context of an existing modelling contract? Or would you like to draft a modelling contract that is legally secure and fair for all parties? Then do not hesitate to contact our contract law experts. At Schlun & Elseven Rechtsanwälte, our lawyers will provide you with expert advice and support in all matters relating to modelling contracts.