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Michigan Supreme Court Decision May Affect Photographers - PPA Today

Michigan Supreme Court Decision May Affect Photographers

Photographers in Michigan should keep their eyes open for legislation and other legal changes that stem from a June 18, 2010, state Supreme Court ruling.

The Case
The legal question in Woodman vs. Kera, LLC, was whether a parent has the right to contractually waive liability for injury of their child before the injury occurs--and the court found that in Michigan, a parent's waiver is not enforceable.

The ruling handed down from Lansing included four different opinions from the court with the majority indicating that a waiver of liability signed by a parent is ineffective to waive the child's right sue for his or her injuries. The court's opinion seemingly goes even further, indicating that a parent does not have the ability to contract on behalf of a child or waive any legal claim the child may have unless the state legislature has passed a specific law allowing it.

What Does This Mean to You?
What the court has said means that any waiver of liability relating to injury incorporated into your portraiture agreement is not as binding as it was prior to this ruling. Additionally, even if your contract did not include such wording and was signed by a minor's parent, it has the potential to be voided if the child wishes to exercise his or her legal rights.

It is still unclear as to exactly how this would play out in the context of collecting model releases. However, upon initial review of the court opinion, it looks as though a standard model release signed by a parent is no longer binding in Michigan.

What Can You Do Now?
The court's decision does not provide clear guidance on how those working with children can protect themselves from liability. One possible approach may be to make changes to your contract. Consider the following:

  • Draft a model release agreement that requires the parent (or the party signing it) to agree not to bring a lawsuit in the name of the child for use of the work and to fully defend and indemnify the photographer in the event that the child, or someone on behalf of the child, brings a claim.
  • Work with a local attorney to ensure your liability clauses will hold up if tested in court.

While the court decision is discouraging and not favorable to those who work directly with children, it may be possible for the blow dealt by the decision to be tempered through legislation. We encourage you to contact your state legislators to inquire about any legislation that might be on the table, or request that they consider legislation that will better protect you and your livelihood.

Visit house.michigan.gov/find_a_rep.asp to find your state representative and senate.michigan.gov/fysenator/fysenator.htm to find your state senator.

This alert has been issued by Professional Photographers of America (PPA) for general information purposes and shall not be considered legal advice. PPA strongly recommends that photographers contact local counsel to determine the enforceability of their liability statements.



About this Entry

This page contains a single entry by Professional Photographers of America (PPA) published on August 4, 2010 3:11 PM.

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