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Q: Likeness "release" forms at filmed castings

A client of our performers' agency attended a casting session three months ago and has now been asked to sign a "release", granting the production company various rights in the use of her image in the filmed casting material, including the right in perpetuity to use her likeness and photographs "distorted in character or form" and "in conjunction with her own or a fictitious name" for any lawful purpose whatsoever in any media. The document also contains a release of all claims including "misrepresentation or defamation due to distortion or alteration". In return our client is to be paid "a fee to be agreed, depending upon final usage".

Is such a grant and release legal, and should we advise our client to agree?

A: I suspect what has given rise to the offending words quoted above is a recent addition to the law where since February 1, 2006, performers have statutory moral rights to be identified as such and to be able to object to derogatory treatment of their work. While your client would not have any copyright in the film or stills, she would have the moral rights referred to above. These new moral rights cannot be assigned but can be waived, so the answer to your question "is it legal?" is that yes, it is. However, I would not myself sign such a "carte blanche", catch-all document, and would not advise a client to do so without first explaining the possibly unacceptable consequences.

There was a case some years ago where a well known person had a photograph of his face superimposed on a cut out hole in a fairground, cardboard image of an offensive-looking individual, and successfully sued for defamation. This is just one instance of what can happen if one allows one's image to be used in a distorted manner and it is possible to speculate on much worse scenarios. It is true that the reference to "for any lawful purpose" would preclude fraud, but there is no similar qualification in the "release" part of the document, and in any event there is no need to exclude unlawful acts since they would be banned by necessary implication.

The production company should be asked to explain why they think they need the offending words and, if they have particular acceptable, situations in mind, these can be catered for by saying that in each particular instance they must seek your permission, which possibly you may be willing to qualify by adding that such permission will not be unreasonably withheld. As it stands, I would regard the document as unacceptable, and if the production company persists I would complain to whomsoever has engaged them to produce the material concerned. You could also seek the assistance of Equity in order to put pressure on them to stop such practices. Indeed, the very threat of such action may be enough to deter them.

There is another important aspect to all this, which is the reference to a "fee to be agreed". It is axiomatic that in law an agreement to agree is no agreement at all. Accordingly, if you are not able to agree a fee in advance, or a mechanism for arriving at appropriate remuneration according to some specified arithmetical formula, then you need to specify that in the absence of agreement such remuneration will be "reasonable" (which opens the door to its being fixed by a court on a quantum meruit basis in the light of expert evidence), or by arbitration or by an independent expert. The document should also address payment times and procedures, and verification by inspection of accounts.

Of course, you need to proceed cautiously and politely, because your client is after all seeking to make money from his performances, and you will not want to kill the goose before the golden egg is laid. So do get your client's consent before responding with too heated a challenge.

It seems to me you really need the assistance of a solicitor to negotiate amendments to the document in order to ensure the final version is in acceptable form.

First published 7th January 2008