[by Thomas Werner]
â€śI donâ€™t need a release, I would win in courtâ€¦.â€ť I frequently hear this comment while discussing releases during presentations to students and working photographers, who then point to landmark cases that support their claim. There are many reasons that this logic is faulty, here is one case to illustrate the point. A few years ago Phillip Lorca DiCorcia was sued for exhibiting and selling a portrait of a gentleman taken in the street. The photograph had been taken without the manâ€™s knowledge, and when he found out the photographs were selling for between 20,000 and 30,000 USD at his gallery Pace/MacGil here in New York, he wanted to be paid.
After a protracted court case lasting more than two years, Lorca DiCorcia and his gallery won the right to sell the photographs and keep the proceeds, and were not asked to pay damages to the person in the photograph. Going to court worked for Phillip as his gallery was involved in the litigation and they were able to afford the prolonged battle in this landmark case. Due to Lorca DiCorciaâ€™s standing in the art world and the salability of his work the financial benefit for both the photographer and gallery outweighed the initial cost of the defense.
Now imagine that you are going to defend your work in a similar situation. You must be ready to give up a year, if not years of your life pulling together documents to support not only the value of your imagery, but of your work in general, as it is likely you will not have the history, nor have your history as well documented as Locra diCorcia. You will also need to provide information regarding various other aspects of your business. Additionally, you will need to be ready to pay tens if not hundreds of thousands of dollars in attorneyâ€™s fees as you defend your case and before you can collect any money should you do so. During this period you will find it difficult to work, enjoy life, or to focus on anything but your now consuming court case as the financial health of your family and business begins to rest on the outcome.
Instead of creating imagery, growing your business and enjoying your family and friends you will need to work at the never pleasant task of defending yourself in a lawsuit. You may indeed win your case, recoup your money, and have the right to sell your imagery, but at what price? Most of us cannot afford the time or money necessary to take on such a task. Get a release, make your life easier, yes maybe â€śYou would win in courtâ€ť, but you need to prove that in court, and that isnâ€™t worth avoiding the two minutes that it will take to have someone sign a piece of paper agreeing to release the usage.
Thomas Werner is a Educator, Curator, and Lecturer, you can learn more about Thomas and his projects at Thomas Werner Projects on Facebook.com