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Comment by hackersword | Hacker News Reader

>Elden says his parents never signed a release authorising the use of his image on the album.

He can say whatever he wants, but that would seem extremely unlikely.

Major record companies have legal departments. They're not going to greenlight an album cover without rights to the images. Anyone who works in publishing knows how strictly this stuff is treated at a major label.

Probably worth it to bet they lost the paperwork and get a settlement.

There is zero chance that his parents did not consent. It's not like someone just stole their baby for a few hours.

But his parents were apparently paid.

That doesn't mean there was consent and model release paperwork.

The record company should (only slightly ironically) keep records.

If they exist this case is going nowhere. If they don't - that might get interesting.

One would think there'd be some kind of implied consent.

It's hard to imagine a situation where a record company ends up with naked pictures of someones kid, the parent gets paid, and the parent is genuinely not ok with the pics appearing on an album cover.

I agree it's more interesting if there's no consent form, but I still would hope the court would side with the record company.

I wonder if that payment serves as some sort of understanding/contract.

The money was given for some reason. What reason did the parents think?

Accepting payment is usually understood to indicate acceptance of the terms of a contract. A contract generally requires: offer, acceptance, a clear intention to interact (create a legal relationship), and consideration (money or goods/services). One very interesting example of the significance of accepting payment is the lease for the Guantanamo Bay naval facility.[1]

[1] https://www.reuters.com/article/idUSN17200921

Without an explicit contract I think it would be hard to argue they consented to commercial use of the photo, even if they accepted a payment at the time.

What else would they have thought they were getting paid for? A picture was taken, and they got paid; the only logical reason for them to be paid would be that there was some commercial value to the photo.

Does it really matter? The evidentiary standard is "preponderance of the evidence" so it's pretty much up to the defendant to prove that they had consent as long as the plaintiff can prove it was him on the cover. That's why some states even require the release to be in writing rather than a verbal agreement.

Well, I can almost guarantee that the first question that the defendant's counsel will ask in discovery is whether payment was accepted in connection with the photoshoot. The second question will be what the parent thought the payment was for.

A written agreement definitely helps to clarify the matter, but is neither necessary nor sufficient to guarantee a resolution.

Not a lawyer but I sat jury duty on a contract dispute.

A verbal agreement absolutely can be an enforceable contract. The crux is whether there was a meeting of the minds. Of course, without documentation this is hard to prove, so you find people arguing it either direction in legal disputes.

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