#KnowYourRights: Usage

Models may hear the word ‘usage’ thrown around occasionally with regards to big tv commercials, but it was only when writing ‘The Model Manifesto’ that I learned what usage really is. Usage is essentially why models are paid wildly different amounts for different jobs. It is what makes up the fee for a model, why e-commerce companies pay so much and editorials pay so little. It underpins finance for models.

The client is paying for how they want to use the image of the model to make money, i.e how much money they will make off it. If they are putting a model on a billboard in Times Square for 1 month, probably at least 10 million people will see it, and be inclined to buy whatever the model is advertising. If a magazine  is featuring a model alongside 3 others in a magazine, they will theoretically only be printed once and seen by a limited number of people. 

Agents can negotiate different usage rates for different jobs and models. One model may sell a lot more than others depending on their previous experience, and using images in a certain way may exclude other work opportunities. 

Kelleth Cuthbert is suing Fiji Water for using a photograph taken at an event where she was serving drinks, to create a cardboard cutout of her image for use in-store.

Kelleth Cuthbert is suing Fiji Water for using a photograph taken at an event where she was serving drinks, to create a cardboard cutout of her image for use in-store.

Usage is normally agreed by the agency and client when booking a model on a job. It should be listed on the ‘Booking Form’, which is the individual job contract for each job a model does, also featuring how long the client has to pay the agency and the full amount they are being invoiced, inclusive of the agency fee.

However, if the agency does not have a standard practice of legally backing up their jobs with contracts, they may use an ad hoc email system where this is written down in an email and the general terms and conditions of an agency are implied. The problem is the general terms and conditions of the client are also probably implied - so it becomes a ‘battle of the forms’ should a problem arise. 

Usage can be used to exploit models in a number of ways.

  1. The agency keeps extra money made from usage

If a model has no idea what their agreed fee covers in terms of usage, they cannot complain if they see their image featured on a billboard. They have no idea if this was included in the original fee they received (for say, a social media shoot), and if their agency says it was, they have no way of knowing the truth without calling up the client themselves and asking (which is a lot harder than it sounds). 

The agency can therefore keep any extra money made from extra usage. The client may ask to buy the images for further use after the job has been completed, and an agency should inform the model of this, however if they do not then the model is unaware more money is owed to them.

This is a big problem for models who have left agencies and are not kept up to date actively with information, because their agency could claim that they didn’t know how to get in touch with the model.

The solution is to always ASK the agreed usage for a job, check this with the booking form and ask every few months if there have been any buyouts. Your agency may be able to withhold information from you, but it cannot outright lie to you. 

2. The agency doesn’t want to risk their relationship with a client. 

I was extremely excited about finding myself on a billboard in Oxford Street in 2014, taken from a look book I shot for this brand. Having zero idea about usage (mid law degree!) I posted pictures everywhere and went into the party where my picture was plastered everywhere - it was only when my agent saw it and asked where I had found it that I learned usage was even a thing! They didn’t receive any extra money because it was ‘only for a day’, but would have had to pay potentially thousands more if they had shot the images for this purpose.

I was extremely excited about finding myself on a billboard in Oxford Street in 2014, taken from a look book I shot for this brand. Having zero idea about usage (mid law degree!) I posted pictures everywhere and went into the party where my picture was plastered everywhere - it was only when my agent saw it and asked where I had found it that I learned usage was even a thing! They didn’t receive any extra money because it was ‘only for a day’, but would have had to pay potentially thousands more if they had shot the images for this purpose.

Clients may breach usage, for example keeping images on a website that have expired, but the agency may not chase this because they don’t want to start a problem with their clients. As there are more and more model agencies and less clients, they need to keep them happy and will usually do this over the risk of fighting for extra money for an individual model, otherwise they run the risk of not booking any more models with that client in the future. It may also be a case of a lot of money to a model, but not a lot to the agency in terms of commission and their relationship with that client.

An example of additional usage is as such: (original Booking Fee divided by number of average product shots of Model taken at the original Shoot) x 50% = “Additional Usage Fee per Image”. 

 By way of example, if a Standard model was paid an £800.00 full day Booking Fee and there were 50 images taken during the Shoot then the Additional Usage Fee per Image would be calculated as follows: £800.00/50 = £16 which multiplied by 50% gives an Additional Usage Fee of £8.00 for use of one image.  

This may not sound like a lot, but if you add up all of the images on a website and length of time it can work out to a few thousand pounds for a model. The agency will happily still take their cut, though! 

The solution in this case, if your agency tells you ‘the client hasn't responded’ or fails to follow up on usage breaches, is to go to Equity who should be able to take the matter further. You could also contact the client’s legal department yourself to solve this issue. 


3. Technology complicates things. 

Whereas shooting for a magazine for free was once considered worth it for models, who needed ‘tear sheets’ (images torn from magazines) for visas and magazines were held in high esteem, now it is probably more valuable to shoot for a magazine’s Instagram. What once was a 10 minute runway show is now a live streamed video where people can buy directly off the underpaid models,  uploaded onto websites for future reference. Images taken at events and backstage at jobs can be used on social media, creating sales for clients. 

In this case, the best thing to do is ask how the images will be used and to ensure any extra usage goes through your agent. Make sure you listen out on jobs for any mentions of apps, websites or social media and ensure your agent knows about everything your image is being used for. 

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What to do if your usage is breached

Firstly you need to know what usage has been agreed - so ask your agency to inform you or show you the Booking Confirmation Form for each job that you do. If they refuse, contact Equity or get in touch here - they have a legal obligation to inform you of details pertaining to your job and to show you any data involving you they may have. 

Typically, usage rates for websites may be between 4-6 months, worldwide (as it is online) and website only, not including additional advertising or social media use. Therefore it is a good idea to check the websites of clients you worked for years in the past (Pinterest is very helpful for this!) to see if the images are still live and particularly if products are being sold. Other usage rates may vary wildly - for example, from a billboard campaign to a catwalk show - but the general rule is to assess if someone is commercially profiting from your image and whether this has fallen outside of what would have reasonably been agreed. For example, if you see a picture you took for a client’s Instagram on a billboard then you know there is a big issue! 

If you think that your usage has been breached, ask your agency to chase this up. If you are not satisfied with their response, contact Equity who should be able to sort this - if they also fail to chase up the issue for you, you can contact the client yourself. I recommend messaging the law department of the client - they will want to ensure they are not legally at risk by breaching usage, and often clients may just forget to remove images.
Generally if you can prove a breach of contract, you will be paid more money as a result. Remember to take screenshots and photographs of the additional usage with a date stamp.

Usage must be respected and models must be told about what their jobs involved - they cannot enforce their rights if they don’t know what they are.