change to New York labor law regulations (Part 186) may have onerous implications for photographers and the stock photography industry who shoot child models As of November 22, 2013, “print and runway” models are now included among the artistic or creative services that require a permit when using child performers. Previously, the regulations only applied to performers and entertainers in traditional entertainment endeavors and not still photography. The regulations do not define a “print or runway model” and it is possible that it could apply to all photographs offered for a commercial use, even if no money is exchanged. This change creates new restrictions and requirements on those who use models under the age of 18 which require preparation and planning to ensure compliance with the law. Key components of the law are as follows.
A. Requirements When Using Child Models
Before using child models, photographers must first apply for an Employer Certificate of Eligibility. This certification lasts for three years, costs $350 and can be renewed for $200. The Department of Labor (DOL) provides a form application for employers located here. An employer must also notify the DOL of its intent to employ minors at least three days before a shoot. This form is found here.
Employers must also collect (a) copies of valid Child Performer Permits (which guardians are obligated to secure); (b) information about the child model’s trust account, and (c) emergency contact information and authorization to provide emergency medical treatment for the child model. Employers must inform child models and their parents of any health and safety information necessary to protect the child. One of the most important, and potentially burdensome, obligations is the mandatory transfer a minimum of 15% of the child’s gross earnings into a trust account opened by the child’s guardian.
Employers’ obligations under the new law continue during the actual shoot as well. All child performers under 16 years of age must be assigned a responsible person who is 18 or older and that person must be allowed to be within sight or sound of the child at all times. The law also mandates the number of hours a child model may be required to work as well as how much break time is required. Such restrictions depend on the age of the model and whether or not they are enrolled in school. The DOL provides a helpful document with all hour restrictions here. The law also contains educational provisions that require time and space to study averaging at least three hours per school day on a weekly basis and if the child is to miss more than three days of schools, the employer must provide a certified teacher.
B. Implications for Photography
These obligations seem especially onerous on photographers in the stock industry where no publication, ad agency or fashion house is paying the photographer in advance. Stock photographers make their living by taking pictures and distributing them through image licensing companies for possible licensing. Rare is the case where a photographer will actually employ a child for any length of time and many stock images are simply taken among family and friends – or casting for “ordinary people,” rather than fashion models. The modeling fees are generally low to reflect this more speculative use.
It’s easy to illustrate the problem. A photographer goes out on the street with her camera to take pictures and happens to see a cute kid playing. She snaps a few pictures and secures a model release from the child’s mother. If she then uploads the photo to a stock photo agency and it’s selected for use in a magazine, she has just broken the law. The photographer never secured a permit, nor did she notify the DOL three days in advance of the shoot. Moreover, the child’s guardian almost certainly will not have had a permit or a trust account. These regulations apply even if the photographer pays the child nothing.
The law is designed to prevent exploitation of children and to protect the welfare of children. The DOL is unfamiliar with the stock image licensing business model, where the associated risks to minors are low, since they would not be missing school, and the model fees would not warrant the added costs and administrative expenses. Moreover, due to the speculative nature of stock photograph licensing, permitting fees may discourage photographers altogether from shooting in New York or using models from New York. I contacted the Department of Labor to ask what the term “print and runway models” was intended to cover. I was told it was thought to apply to everything – print or web. I was asked to work with the DOL on these problems, and to prepare a proposal on the application of the new law to the photography industry. I am currently working with them to find a solution.