While in high school, I had a close friend who was “discovered”. I thought it was the best thing ever and always quizzed her on being a model, shows she’s been, the people in the industry and so forth. I remember once she told me that it’s not as glamourous as I think. She said that she often felt out of place and designers (and other persons) often talked about her while she is in the room. For example, if they thought she was too fat or not unique enough they would just say so. In fact, once she told me someone called her ugly. I could not believe it! There went my glorious view of the industry.
As a fashion lawyer, I am more cognisant of the issues models face daily. I am not as naive as I was in high school. A model’s career is not as glamorous as we think. Models are human and they endure a lot of pressure to look and be perfect. Earlier this year, the story broke of Ananda Marchildon, Holland’s Next Top Model, suing her agency Elite for prematurely ending her contract because they thought she was too fat. Allegedly, Elite told Ananda that she could not do runway shows and should slim down, because the agency’s hip requirement is 35.4 inches. You should bear in mind that the average European woman’s hip measurement is 40.5 inches. There was no way Ananda could achieve 35.4 inches in a healthy way.
I was not surprised therefore when Sara Ziff decided to establish The Model Alliance. Have you heard of it? The Model Alliance according to Sara was formed because:
For too long, there has been a myopic disregard for the modeling industry’s systemic abuses of its workforce. While I have been very fortunate in my modeling career, I have also seen firsthand how the industry often disregards child labor law, lacks financial transparency, encourages eating disorders, and blindly tolerates sexual abuse in the workplace. The lucrative careers of high-profile supermodels misrepresent the reality for most working models, who are young, mostly female, and uniquely vulnerable.
With the help of reality TV and shows like America’s Next Top Model and Scouted, everyone can appreciate that a model’s lifestyle can be rough. They have gruelling schedules, having to do multiple photo shoots, multiple fashion shows, and flying from one country to another. I can assure you that even if they are travelling in first class, frequent travelling can take its toll. The worse part of all about being a model is that they are typically freelancers or independent contractors, which means they enjoy marginal labour rights.
An independent contractor generally is not an employee, he/she is simply someone contracted to do work when required. Not being an employee means that employee regulations do not apply to the working relationship/contract. Models therefore don’t get workmen’s compensation and health coverage/insurance. They don’t get rest or breaks during the work day. So, unlike a normal employee they cannot take two 15 minute coffee breaks and an hour lunch break. They don’t get that luxury.
There are also concerns about discrimination, sexual harassment and sexual abuse. Especially because many models are discovered at a very young age. They start working at a young age, without employee protection. Can you imagine doing that? Then there are those models who are flown into the US from overseas and the only persons they know and feel comfortable with are the staff at the model agency (the agency normally sponsors the visa). This influential position can be abused.
The Model Alliance’s focus is working with US model agencies to champion the rights of models. I think a monitorship program would be good. Teaming up young models with more seasoned models would help to sensitise younger models. What do you think?
For me, the model rights movement have highlighted a big problem in the industry and the need for models to understand legal concepts. This knowledge will help models to understand their rights and the contracts they sign. Gone are the days when people blindly sign documents. Below I have highlighted a few things models should know when signing with an agency.
Contract/Agency Tips for Models
1. A lawyer should always look over any contract presented to you. It’s an investment in your career and your future.
2. Research the model agency. Try to speak to models signed with the agency and even those who have left. FInd out about the working conditions. Google makes everything easy now. So, Google them!
Another reason to research the agency is to find out the size of the agency. The size of the agency can help you to understand their business model.
A large agency can spend the money to train you, get portfolio done and so forth. Just know that you will have to pay them back. There will be a clause in your contract about repayment. You need to read it and re-read it and make sure you understand it. Nothing in business is done for free!
A medium-sized agency, will have less money to train you. In fact, they might require that you pay for your own training, portfolio and so on. Really, I would advise you to try to sign with a larger agency so that they pay for your training etc., especially if you don’t have a lot of money. However, I do understand that not every person can sign with the bigger agencies. In this case, ensure that the agency can provide you with enough work to make your money back.
Smaller agencies have little to nothing to invest in a model (there are exceptions). Often these agencies have modelling schools, where you pay the school to teach you to model. I have a few friends who went this route and trust me, nothing became of them. No high profile fashion shoots, runway shows or anything so. I would advise you to stay away from these agencies. Often, they will not have the contacts to get you the work you desire.
3. Know the different type of contracts:
Exclusive contract – this restricts you from signing with another agency during the contract. Now, if you are with a reputable agency, who can provide a lot of work, you might not mind signing this type of contract. The problem arises when you sign with an agency that is medium to small (as discussed above) or cannot give you the type of work you want. Then, you might decide to sign with an additional agency. This will be a breach of contract. Please consider that!
Non-excusive contract – if you sign with a small or medium-sized agency that cannot pay for your training and development etc. I would suggest you negotiate a non-exclusive contract, which allows you to find work on your own or sign with other agencies.
One-time contract – you only do the work for which the contract covers and nothing else. Please note that you will not get additional work to do under this contract. A new contract will have to be executed for any other work.
Mother agency contract – this is the mother of all model contracts in my view. Your agency can basically sell your rights to another agency (often a bigger one), all the while, still getting a cut of your money for work you have done. Imagine that! The percentage (the cut they get) can be as high as 20%. That is 20% of your money.
4. Take a note of the parties to the contract. Often the registered name of the company might be different from the name it carries on business in. In the end you need to know who you contract with and who you can sue.
5. Understand what is a standard form contract. Generally, this is a contract where the terms and conditions of the contract are set by one of the parties, normally, the model agency, and the other party, normally the model, is placed in a “take it or leave it” position with little or no opportunity to negotiate the terms. This is why you need to get a lawyer, so the bargaining position is even.
5. Know the differences between boilerplate clauses and other clauses. Boilerplate clauses are typical in contracts but not all are appropriate for every contract. The unnecessary ones should be removed from the contract. Keep the contract short and sweet, so you can know what you are getting into.
6. Ensure that you agree to the governing law of the contract. While you might not know the laws of every state, at least research the relevant laws of the state that is stated in the contract. Lets say you decide to sue your agency and you live in state X, but the contract you signed choice of law is state Z, you will have to pay to go to state Z to file your claim and appear in court. If the case goes on for months or years, imagine having to fly to state Z every time to attend court.
7. Find out how disputes will be handled. At best, the contract should mention alternative dispute resolution or mediation. The choice of governing law (as discussed above) will be important here too. You want to mediate in the state that is most convenient for you.
In the end, if you still feel the need to litigate (if the agency is in the wrong), note that litigation is important and then you will really need to get a lawyer. (See if you had gotten one in the beginning you might have saved yourself some heartache). Costs and attorney fees might be addressed in the contract. So take note, that if the contract says the prevailing party pays costs and attorney fees, and you lose the case against them, you might have to pay up. The flip side is that if you win, the agency pays up.
If the contract does not speak to costs and attorney fees, generally each party is responsible for his/her/its own costs etc.
8. When is there a breach? Ensure that you understand the clauses on breach and the remedies or damages the parties are entitled to. The contract should not be one-sided, stating that only the model can breach the contract. If your contract says that, you should not be signing with that agency!
9. Be comfortable with the cancellation terms of the contract.
Finally, I would just like to touch on model release. Another issue that has surfaced since the start of New York Fashion Week 2012.
A model release is similar to a liability waiver. It is normally signed by the model and giving permission to publish photograph in whatever form. This release therefore states the allowances and restrictions (and the compensation paid for the photo). Even though the release gives permission to the photographer, he/she is not normally the publisher of the photograph, rather he/she licenses the photo to someone else to publish it. It is an endless web. Let me just end here by saying that publishing the photo without a model release can amount to civil liability.
For models, it comes down to dollars and cents and of course the fact that they have little control over their image – which is their brand. Never feel compelled to sign anything out of fear. You are a model offering your services and for your services you should be appropriately compensated. Your image is your brand and you have to protect your brand. Always read a model release, ask questions and when you are not sure about something find someone who does.
I know that it can be difficult, especially for models just starting out to dictate the terms they are comfortable with, especially when dealing with famous photographers. You feel dwarfed by his/her fame. Be aware however, limiting the use of your photos can save your career, you don’t want your image to be used in a way that can harm your reputation.
While most model release are standard form, do not feel bad to write in the margin. I do that all the time if I feel a standard service contract that is provided to me is not on my terms. To do so is an indication that you know what you are doing and a sign of your intention. Do not agree to anything verbally. Write it in the margin! For example, you can write in the margin that your photos should not be used on sexually explicit web sites or in pornographic materials.
Never, never, never (did I say never?), sign a model release which discharges the photographer or anyone else (for that matter) from all liability if the published photo is used in a manner you did not contemplate. Neither should you waive your right to approve the finished product.
Your legal fashionista,
For a detailed discussion of some of these points have a look at Sebastian Gibson’s, a modeling lawyer in California, website.