First - you have a model who did not sign a model release and who's likeness was used in the marketing and advertising of a rock band. Her story - a Polaroid "snapshot" of the model, taken by her mother may well have been something given to a charity bazaar (during a house-cleaning?). This is but one risk of the Orphan Works legislation, yet, right now, the model has recourse, to the tune of $2,000,000. If Orphan Works were passed, surely her mother (the photographer) wouldn't have recourse, but, would the subject?
And now, a second consideration.
(Continued after the Jump)
All to often, bands claim to have no money to pay for photography - let alone the visual images they use to market their albums/CD's. It's not uncommon for bands to want to pay $100 (or only photo credit!) up to $500. In this case, an "INDIE" group, through a small label, "reportedly paid $5,000 to use the picture". Being paid for cover uses is critical, and values an skyrocket. For example, Japanese photographer Hiroshi Sugimoto's photograph, "Boden Sea", was used on the cover for U2's "No Line on the Horizon" album cover, "Sugimoto's only stipulation was that no text could be placed on top of the image." according to Wikipedia. The arists made a deal, according to The Japan Times (here) "Bono agreed on an "artist-to-artist" barter whereby Sugimoto could use the "No Line on the Horizon" song in any project he wanted in the future." What's the unlimited use of a U2 song worth?
This point is not to be missed - rock bands typically want to pay a fraction of the true value that an album cover image should license for. That image will become synonymous with the artist and album. It will be used in advertising, marketing, and so on, for years to come. The ability of the photographer to relicense that image for exclusive use will not exist in the music industry, and may well be an issue for other industries as well. Further, and don't fall for this one - the record label may say they have to have all rights in perpetuity!
In the end, if you're a hobbyist photographer (as this model's mom was) and you have a polaroid, and the band is an indie band, and the record label is a small one, then the album cover art is STILL worth AT LEAST $5,000.
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