Saturday, October 17, 2009

What Do Lawyers Know About the Law Anyway?

Besides being an attorney, I am an avid amateur photographer and a member of the Nevada Camera Club. Whilst trolling the internet for a sample model release to use when I take pictures of interesting strangers, I came across a web article by Dan Heller, who advises that photographers should not consult a lawyer when trying to compose a model release to suit their purposes and avoid being sued. Being an attorney, you can imagine how I feel about this advice.  Heller gives three flawed reasons for his advice.  

As Heller's first reason, he advises that model releases fall under the specialized scope of the First Amendment.  Heller writes,
There is no government mandate about when a release is required. That is, the government does not track down violators. It is strictly a matter of civil law that must be enforced by individuals themselves. People have rights to privacy and publicity, but the First Amendment of the US Constitution also grants freedom of expression. It is this mixture of rights that often run counter to one another, so what a model release does is remove that conflict.
This is entirely misleading.  The First Amendment guards against government intrusion on one's free speech, not action by private parties.  Rendell-Baker v. Kohn, 457 U.S. 830 (1982).  Click here to obtain the full text of the Supreme Court case Rendell-Baker v. Kohn.  Wikipedia gives a nice overview of U.S. First Amendment protections.   Private actions such as libel and slander are tort actions between private parties that do not ordinarily invoke the First Amendment except in specific areas of law that require state enforcement, such as the Noerr-Pennington Doctrine or SLAPP suits.

Heller's next two reasons are that there is no clear answer as to what kind of model release a photographer needs, and that lawyers give bad business advice.  While he is correct that there is no clear answer unless a photographer wants a release for a very specific situation (for that matter, there is no clear answer to any legal question without knowing the specific circumstance), Heller makes the erroneous conclusion that lawyers give bad business advice.  But business decisions are generally the purview of the client/business owner.  What lawyers do do is give legal advice.  Any lawyer worth her salt will a) not give advice in an unfamiliar area of law; b) give thorough advice (i.e. all possible legal scenarios) as to what the state of the law in the client's jurisdiction is, based on the circumstances enumerated by the client; and c) not tell the client what to do.  An attorney needs to provide all relevant legal information to a client so the client can make an informed decision about how the client wants to proceed based on sound business reasons (i.e. the chances of being sued vs. the cost of preventing suit).  So, perhaps Heller has consulted only shady attorneys in the past whose only interests were in "running up the meter."

Notwithstanding the above, Heller does a fair job of explaining the nuances of when a model release might or might not be necessary.  But then again, Heller is not an attorney, and he fails to emphasize that he is relating general law and not a specific jurisdiction.  Be careful of taking his advice.  But don't take my word for it; click here for an attorney who is versed in intellectual property, copyright and entertainment law.

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