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This page contains material from my book,
Digital Photographer's Guide to Model Releases.
This 288 page, fully-illustrated volume is the most
comprehensive book available on the subject, covering everything you ever
wanted to know about model releases for photos people, places and things.
You may buy a copy here.
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Introduction
You're at your kids soccer match at school and you're taking pictures.
Being the photo buff that you are, you get everything—kids scoring
goals, parents screaming from the sidelines, the popcorn vendor, and
fans in the stands. Later, you show the pictures to some of the people,
and find that some want to buy a print for themselves. This becomes a
popular event, and over time, your reputation grows. The local newspaper
gets wind of your talent and wants to license a few photos so it can
put some in the paper for an article on the school's sports curriculum.
Perhaps some shots are so good that the local gift shop wants to sell
enlargements of the shot you took of the winning goal at the state
championships.
All's going well, till someone tells you that you can't do any of these
things unless the people in the photos give you permissions to sell
pictures of them.
This and other virtually identical scenarios illustrate a most common
situation in which a photographer has to decide whether he needs such
permission. Whether it's a school game, a music concert, an amusement
park, or a professional-league game—the circumstances may vary—but
it's all about the same thing: What are people's rights concerning
their own likenesses, and what are your rights as a photographer to use
those photos? What about the publisher? What about the people who buy
photos from you?
Because people have rights, there are conditions in which photos of
people (and things) can't be used without their giving permission.
So, the best way to get that permission is by their signing a simple
agreement that says, essentially "it's ok." In the photography and
publishing world, this agreement is called a model release. The term
"model" relates to the fact that a photo of a person (or thing) is a
"representation" of sorts. The term, "release", refers to the legal
expression, release of liability. That is, one person has rights that
they agree they will not exert under some conditions. They are "releasing
you from liability." Once you have a signed agreement, the common
vernacular is to say that your photo has been "released."
The thing is, not all uses of photos require consent from the person.
And if a photo does release consent, who is it that's actually liable?
What are the penalties if any? Who doesn't bear any liability risk?
There is a huge list of situations and conditions that can swing either
way, and almost all of these conditions stand on their own—they're all
intertwined with other conditions. If A, but not B.... Or, if A and C, etc...
At this point, you're looking at the length of this chapter and thinking,
"oh boy, I don't want to read all that." (Indeed—I didn't really look
forward to writing it!) So, let me first point you to a short-cut. If
you're not a professional photographer, then just skip right down to the
bottom and read the summary.
If you are a pro, you can also start at the summary because I know
you're too darn curious to get to the bottom line. So, go ahead and read
it. I'll wait here.
Ok, you're back? I assume you now have a good bird's eye view of what
we're dealing with here. And since you're back, I'm sure you're dying
to know the answers to your questions, because of course, your
particular circumstances are so unique and no one else has yet to
address them. Ok, fine. So now let me address the next question on your
mind:
Why Not Consult a Lawyer?
Some of you may be thinking, "why look to a photographer for advice
about this subject, when you should be asking a lawyer?" There are three
answers to this.
Model Releases fall under the scope of the First Amendment,
which is a very focused and specialized area of law that few lawyers
are well-versed in. Those who are call themselves "FA Attorneys"
(for "First Amendment"), and most people don't have access to these
kinds of lawyers. It's partially because they're rare, but even if you
can find them, they're way too busy with very high-paying clients, like
media companies who need to know whether they're going to be sued for
billions of dollars because one of their reporters is about to run an
article about a corrupt politician involving an under-aged intern.
Because you aren't necessarily going to get access to an FA lawyer,
your next option is to speak to a general-practice lawyer, which is
where things usually start going badly very quickly. FA layers often
joke that 90% of their business comes from clients who got into trouble
because they took the advice of non-FA lawyers in the first place.
If you're one of the few that actually does speak to an FA lawyer, the
next problem will come up:
There is no easy, single answer to any FA-related question.
Aside from a few extremely simple and commonly understood cases such
as "news reporting" (on one extreme) and "advertising" (on the other)
the entire middle ground of when a photo may require a release is open
to many circumstantial questions. There is no such thing as a simple
answer. No matter what you say, a good FA lawyer will reply with, "it
depends on the circumstances," at which point, you start plugging the
meter with quarters. If you're willing to do that, you may get some
good hypothetical scenarios about what your potential liabilities are,
but this gets into the next problem:
Lawyers don't give good business advice.
"Potential problems" don't mean anything. You could be hit by a car crossing
the street, but that doesn't mean you don't cross. In fact, getting hit by a
car is more likely than a photographer being sued for a photo he took of
someone. To be precise, no photographer has ever been successfully sued
for not having a model release. There's one case where a photographer lied
about having a release when he didn't, but that's an act of fraud, which
is entirely different. (Telling a lie for the purpose of getting money from
someone is fraudulent.)
Now, this doesn't mean you shouldn't be concerned about model releases.
Indeed, people will threaten to sue you frequently if you intend to take
a lot of pictures of people and do things with them that they don't like.
But even with the best intentions, you should be informed about the topic.
It's even most important if you intend to sell the pictures. As I'll point
out later, the model release has nothing to do with your ability to sell
photos of people, but more your ability to build a viable business doing
so. The buyers of your photos are the people who need the releases, not you.
But it just so happens that because you're the person in front of the
subject when the picture is taken, it's easiest and fastest for you to
get that model release for that future buyer.
Let's take a break for a sanity check. Do you follow all this so far?
If not, you should read Model Release Primer, which explains just
who is ultimately responsible for a photo of someone being published
without a release. Most lawyers don't know these critical factors of
publishing and the First Amendment. Therefore, they will cite risks—
even realistic ones—but you're not the one at risk. Someone else is.
That said, that someone could be your client—the one who licenses your
photo—in which case, they, too, know the risks, and may not license
the photo unless it has a release.
What's a model release?
A sample model release is shown at the top of this page. In brief,
a model release is a document that stipulates the terms under which one
party may use pictures taken of another party. Most of the time, it's
a brief (one paragraph) statement, although it can also be a lengthy
contract full of stipulations on payment schedules, lists of permitted
and non-permitted uses, legal rights and sometimes even limitations on
the amount of money you can sue the other party for in the event of a
contract violation. A model release can say whatever you want it to
say—long or short—as long as both parties agree to it. It can also
be retroactive; you can shoot first and get the release later. (In fact,
sometimes photographers don't bother getting a release unless they have
an opportunity to use the picture in a way that would require one.)
Technically, the release used at the top of this page is sufficient for
any use you may ever need. However, the business caveats are simply that
it is written very heavily weighted in favor of the photographer (and his
licensees), and not really toward the person in the photo. In other words,
it's very broadly worded, and is so permissive, you may not necessarily
get anyone and everyone to sign it. This is particularly true of professional
models who would prefer (if not demand) that more limitations be stipulated
(such as a narrower scope of use, like a singular and particular ad or
publisher). Such caveats aside, most common people that you might photograph
candidly on the street or in public don't care that much and will probably
sign it without giving much thought to it.
If you ever get push-back on this sample release, you could always
modify it by simply writing in extra provisions, even on the back, and
even in crayon. It simply doesn't matter, so long as it's signed. For
example, you may take a picture of a kid scoring a soccer goal, and
ask the parents to sign the release so you can license the photo to
the local sporting goods store. If the parents resist because the
scope appears too broad, just write in "to be used only for ads for
Joe's Sporting Good Store", or whatever the name happens to be, and
you're done. There's no need to get really formal about this stuff.
One more thing: There is no government mandate about when a release
is required. That is, the government does not track down violators. It
is strictly a matter of civil law that must be enforced by individuals
themselves. People have rights to privacy and publicity, but the First
Amendment of the US Constitution also grants freedom of expression. It
is this mixture of rights that often run counter to one another, so
what a model release does is remove that conflict. As its name implies,
it "releases" one party from liability for having violated the other
party's rights.
A quick and important reminder here: Model Release Primer (which
you have read, correct?) states that the photographer is rarely the
publisher of images. Instead, he licenses photos to others who publish.
It's because of this transaction that it's imperative that the model
release includes the language that says the photographer can assign the
release to someone else.
The photographer has people sign releases because he intends to sell the
photo to someone else who will publish them, not entirely because he is
protecting himself. Of course, some photographers self-publish, but this
is very rare, especially for the kind of uses that require releases.
And here's where things get sticky. What are those conditions? When do they
apply? The very short and simple answer is easy, an example of which can be
found in California Code 3344. It has multiple sections, but section
(a) says:
"... Any person who knowingly uses another's name, voice,
signature, photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling,
or soliciting purchases of, products, merchandise, goods or services,
without such person's prior consent, shall be liable for damages."
Looks simple, right? Well, it is and it isn't. The simple part is
the notion of "promotion"—the fact that people have the right to
control if and how others use their likeness to promote an idea, product
or service. Where it gets complex is what actually constitutes a product
or a promotion. Remember, the First Amendment allows for freedom of
expression, which includes art forms, opinions, newsworthy information
and other forms of information.
Because of these complexities, people simply disagree: you may think the
photo of you on a website is a form of promotion, whereas the person that
owns the site simply regards it as a demonstration of his artwork.
Which is correct? Whose rights outweighs the other's?
Well, that's what courts are for. But until it gets there, people turn
to... well, each other. And most people are just not well informed on
the subject. It is probably the most misunderstood topic in the
world of photography, which makes it ripe for misinformation running
rampant. Whether it's verbal hearsay, or rumors that spread in internet
chat rooms, the mistake people make is trying to simplify into a few
words a topic that cannot be simplified. And then people cite anecdotal
experiences. For instance, if you were to hear about a case in which
someone was sued for taking a picture at a soccer game, don't simply
assume that one cannot take pictures at soccer games, or any other kind
of sporting event. This is how rumors spread. The basic facts of that
one case are usually misinterpreted from the outset, and those who spread
rumors usually fail to follow these cases, which are often dismissed as
"frivolous" anyway.
The reality is that almost every case is different, because the conditions
that trigger the need—or lack thereof—for a model release are tightly
intertwined and interdependent on multiple factors. It is more the
exception than the rule to establish conclusively the necessity of a
release for any given image.
Another critical point: many people make their assumptions about when
releases are necessary because they were told by a photo buyer, be
they publishers or stock photo agencies. It may be that they want you
to have releases for photos they use, but this does not mean that
the use actually requires a release. The two are distinctly different.
Publishers are fearful of being sued, and having a release alleviates that
risk. Of course, this is a perfectly good reason for them to be cautious,
which also underscores the main point that publishers are the ones who
are sued, not photographers. Accordingly, the more images you have that
are released, the wider your potential audience of buyers are. But, do not
confuse the desire for a release with a legal need for a release.
These are very different things, especially when you have business
considerations at stake. Simple example: just because you have a great
photo of someone that didn't sign a release does not mean that you
shouldn't try to sell it—if it's a great shot, you may make some pretty
good money with it. Money that you wouldn't have gotten if you wrongly
assumed that you couldn't sell it because you didn't have a release.
When a Release is Necessary
Whether it's photos of people, buildings, or other copyrighted or
trademarked items, the key concept you need to always have at the
front of your mind is "association." Again, think about California code
3344: Does the person or thing in the photo imply he or it is an
advocate or sponsor for an underlying idea or product. The stronger
the implication of this kind of advocacy, the more likely that someone
can draw an "association" between the photo subject and that product or
idea. Hence, the stronger the need for a release.
You may have heard the term, "commercial use," and that model releases
are necessary for all commercial uses. It is true that commercial uses
of a photo are those where the picture of the subject (person or thing)
implies an advocacy, like those you see in advertisements. But, you need
to think beyond just that kind of advocacy. If the use of the photo
implies that the person agrees with the underlying message or the
person or company that paid for the use of the photo (like that of an
advocate for a non-profit company), then a release is still required.
For example, a publisher can't just place a photo of a person on a poster
that says, "support your local hospital," just because this is not a
"commercial use." The photo would imply an association between the subject
of the photo and the user of it, and that's what triggers the need
for a release. Similarly, if the use of the photo implies that the
publisher of the photo is speaking for the person in the photo, again,
this requires a release. For example, a photo of a musician that says,
"I never go on stage without my guitar," even though the use of the
photo never advocates a specific guitar company or other product. The
fact that the user of the photo would appear to be speaking on behalf
of the person in it, a release would be necessary.
Well, a release would be necessary unless it were a direct quote from
that person, and the use of the photo is merely repeating something he's
said in public, or to a reporter, for example. When this is the case,
we enter into the realm of "editorial use," where a release is not
necessary. Magazine and newspaper stories about people (famous or not)
do not require releases for the photos because the article is merely
an expression of free speech, and no one is assuming that the person
the article is about necessarily advocates what's being said. Indeed,
many magazine articles say things that the subjects would prefer not
be said, but a release is still not necessary because that's the whole
point of freedom of speech: to report news and information. You would
only get into trouble if you lied about them in a way that harmed their
personal or professional life. That would be a case of libel, and is
beyond the scope of this topic.
So, the general rule to think of is whether the use of a photo would imply
that the subject "agrees with" or is a "sponsor of" the user of the photo,
versus whether the use of the photo is more about the subject that the
average viewer would not assume the subject would necessarily agree with,
or disagree with. There are so many examples of each of these kinds of
"commercial" or "editorial" uses that it would be impossible to list
them all here, or anywhere. So, don't expect to learn specific examples
like "advertisements" and "magazines stories." Yes, these are obvious, but
learning involves understanding why those are as they are. Instead,
you need to think about the basic concepts, just as I described them above.
Granted, this is vague, but it's something you eventually pick up on
quickly as more examples are provided. (Or, as you merely witness real-life
things you see everyday.)
Similarly to advocacy, there's the question of whether you may be
using "features" of a person or thing—such as whether they are
well-known celebrities or iconic logos—which may also trigger the
need for a release. This is similar to the "association" concept,
but rather than suggesting that they are "advocates or supporters"
of an idea, the use of the image could be exploiting their inherent
recognizability and "goodwill" to enhance the perceived value of a
product or idea. (Also see Photographers' issues concerning trademarks and photography.)
An important distinction needs to be made here: making statements
is free speech, so you may make all the statements you like, provided
they are yours. Associating someone else with your views (without
his permission) is not (necessarily) free speech. Nor is making
false statements about someone (libel). Therefore, a publisher is
well-advised to understand how a proposed image is to be used, even
in an editorial context, before publishing an unreleased photo. (You,
the photographer, on the other hand, don't need to worry about this
unless you are self-publishing.)
For example, a well-known school textbook company using an unreleased
image in an educational context does not require a release. However,
if a religious organization wanted to use an image, they're almost
assuredly going to need a release, because people have a right to be
associated (or not) with religious points of view. So, if there is any
hint of religious dogma, bias, or promotion, privacy law doesn't recognize
the use of the image as "editorial." The easy test is to look at who
the publisher is. If it's a religious institution, or if there any any
affiliation with a religious person or organization, chances are really
high it would be regarded as a use that would require a release from
the subject of the photo.
Quick quiz: if you were to sell them such a photo, do you need a release?
You should know by now that you don't—they do. But because they do, they
would be unlikely to buy it from you unless you had it.
All this is making sense, right?
Good, because there are multitudes of exceptions that will surely throw
you off. A careful understanding of those caveats is important, as will
be discussed next.
The Checklist for Determining Need for a Release
The following checklist of four items is a handy tool you can use to
determine whether a model release may be necessary. As you read these,
you can get a sense for what publishers need to consider when licensing a
photo from you. Though you, the photographer are not liable for whether
the photo has a release (you can always sell an unreleased photo), you
make more money when you have releases that permit buyers to use your
photos. Knowing when releases are necessary and when they are not helps
you match up (and market to) those buyers that may need either kind
of photo. That is, for your photos that do not have releases, you can
market them more profitably to editorial buyers, whereas those photos
that do have releases can be more successfully marketed to commercial
users as well.
Can you identify the subject as a unique person?
If you can't, the buyer doesn't need a release. Though there could be
some rare exceptions with matters of privacy that most everyday people
don't run into, you can rest assured that unless people are clearly and
unambiguously identifiable in a way that a judge would be able to say,
"yes that's him," you don't need a release. (For a discussion of those
exceptions of those rare exception of privacy, see
this page.)
So, if you can identify the person, does that automatically mean you
need a release? Not yet. You have to go to the next item.
How is the photo to be used?
Commit this statement to memory: Unless and until you have a specific use
for an image, it doesn't make sense to ask whether a model release is
necessary. Why? Because of "association." The photo itself does not
draw an association between the person in the photo and someone or something
else unless a use for the photo exists. Otherwise, there is no "something else"
to associate with. Once a use for the photo is determined (because someone
wants to license it from you), then you can now consider whether that
use would imply an association—or rather, whether the person in the photo
would be assumed to be an advocate or sponsor for the product or idea that
the user of the image is doing with it. Some uses require a release.
Some do not. Some are vague. Since drawing an association is not
always obvious (and is easily disputed), you have to look at other
things to strengthen the argument on whether a release may or may
not be required.
How did you take the picture?
Was it a public setting, like on a street? Was it in a studio? Did the
person know you were taking the photo? Sometimes, you can be taking
pictures in private places: someone's home, the workplace, a bar or
concert hall, amusement park, and so on. There can be limitations in
private settings that need to be considered. But first, let's get some
basics out of the way.
No photo can be used at all if any laws were broken, such as "breaking
and entering" into someone's home, invasion of privacy, or placing a
hidden camera in a workplace. Because these acts violate existing laws,
the legality of the photos are moot.
Assuming no laws are broken, shooting in public places provides the most
latitude for licensing unreleased pictures of people, even if they are
identifiable. "Latitude" does not mean "permitted"—it means that the
bar to clear is higher than if the photo was shot in a private setting.
For example, a photo of a large crowd of people to be used on a billboard
ad for a cellular company my have some recognizable faces, but unless it
appears that such people were "advocates or sponsors" for the company,
a release from them wouldn't be necessary. Judges (and most objective
people) can tell whether a photo trips such advocacy wires, so don't
talk yourself into thinking there is ambiguity in a photo because of
the person's expression on their face or because you don't think there
is a notion of advocacy. You really have to learn to think objectively
about this.
Of course, what I mentioned above is a "commercial" use of an image: a
billboard ad for a cellphone company. As you no doubt know, a release
would not be necessary at all if the use is for editorial purposes,
such as a newspaper story or magazine article about a subject. Here,
photos of recognizable people and things (copyrighted and trademarked
items) taken in public for editorial publication is called "fair use."
We'll touch upon all this again—after all, this is just the checklist
to review—so don't worry if you're not getting it all immediately.
On that note, there's one more checklist item that needs to be noted:
Was there proper compensation?
Please refer to
this section
for a thorough discussion.
Analyzing the Checklist
Let's go through each of the items on the checklist and examine more
closely what its implications are. Remember, it's rare that one and only
one checklist item triggers the requirement for a release, or that it
permits the use without a release. Many factors have to be weighed together.
In the earlier checklist, the first item says, "If you can't identify the
subject of the photo, you don't need a release." However, there are
exceptions, but it's almost certainly the case that your case is
not such an exception.
Ok, so now let's assume you have a clearly identifiable subject. If you
were establish (using later checklist items) that you do need a release
and you don't have one, a publisher can still use the image provided that
he removes identifying features. One way is to digitally alter the
image to make the person unrecognizable. "Rubbing out" an otherwise
identifiable face is perfectly legal. In fact, you see this all the
time in video broadcasts, such as those commercials that advertise
weight-loss programs, where a face is usually "pixilated" or "smudged,"
leaving the rest of the person clear and visible. Because the publisher
can rub out a face, he can reduce his liability accordingly. You don't
need to do this, nor should you—you're not the one who has to, or that
can get in trouble if the publisher doesn't do it. You're just providing
the content, so as the photographer, you can sell the image to the
client, even if you don't have a release and the use of the image would
require one.
Now, let's go back to that issue of the "crowd" shot again: what
if your picture was of the entire field of kids playing soccer.
Although you can still identify some people individually, it's been
successfully argued that if the point of the photo is not a specific
person, but a broader scene, then a release is not necessary. Tying a
single person from that crowd to a promotion of an idea has not been
ruled as a legal liability. A crowd dilutes the perception that
a particular person is tied closely to an idea or promotion. If the crowd
were a cohesive group—like a particular religious congregation—then
there may be case for their making a claim as a group (or their
organization can on their behalf).
On the other hand, a religious use of an image of a person can be
problem. For example, even though posters and postcards usually do not
constitute a commercial use, a litigant once sued a postcard company
for the use of a photo of him, not because of anything to do with the
photo, but because the company used the proceeds to support the Mormon
Church, thereby implying that the person was an advocate of the Church.
The point is, once again, that use has a great influence on whether
a release is needed, bringing us to the next item on the list.
If you have a picture (or are about to shoot one), but don't yet have
a use for it, then the question of whether a release may eventually be
needed cannot be answered at all. Sure, you can try to get one signed
anyway, but you won't actually need it unless you have a use that would
call for it. This is why the release at the top of this chapter is
written the way it is—it's broad enough that you could get it signed
right away, and then have unrestricted use for it later.
Also, money has no bearing on this from a legal point of view. That
is, whether you sell an image for thousands of dollars, or give it
away for free, the transaction itself is irrelevant. It is only how
the image is ultimately used does it potentially infringe on the rights
of others.
One thing about the soccer photo that's easy to understand is that it
was taken in a public setting. But what if is was in someone's backyard?
In the case of private property, the question is then, "how did you get
the picture?" If you broke into their property and planted a camera,
that would be illegal, and you cannot sell the photo to anyone, even
to news organizations. If you used a long lens from outside their
property—even on your own property—you may still be in violation of
the law, if you were found to be a "peeping tom." Ok, those examples are
easy because it's "against the law," but most of the time when people take
pictures on private property, they may not know it, or be aware of it.
The legal test is a simple question: is there a reasonable chance that
you are in a situation where someone could photograph you? If people are
standing around with cameras, then the answer is yes. It doesn't matter
whether people are "allowed" to take pictures, what matters is whether
there's an apparent opportunity where you have a reasonable expectation
that you could be photographed. If you don't want your photo taken, and
you have a chance to leave, then do so.
But some situations aren't like that—your own home, for example. Or some
public settings like locker rooms, dressing rooms, bathrooms. These are
examples where you have a reasonable expectation that you will not be
photographed.
Where this gets more interesting in when you "invite" people to be
photographed—or, even when whether they invite you to photograph
them. Photo studios are the most common example. Once there's a
"orchestration" event, where there's a premeditated plan to photograph
or be photographed, then the consent is granted for the "act" of being
photographed, but the subject has not yielded any rights for how the
photo is used beyond that. This is strictly a private matter, so far.
Because this has to do with privacy laws and rights, not publicity laws,
you are encouraged to read more about the topic in the article,
Personal Privacy and Model Releases (Saturday, April 12, 2008).
Let's return to public places and publicity rights now. For this,we
return to photo of the "face in the crowd." Did I need to get a model
release from this person (or her parents)? Let's go through the
checklist:
-
Are the people identifiable?
-
What's the use of the photo?
-
How was the photo taken?
-
Was there compensation?
What's your analysis? Can you argue both for and against the need
for a model release here?
Let's start the discussion by looking at the first two questions:
are the people identifiable? And, what is the use? If the
people weren't identifiable, we could rule out the need for a release.
But, since they are, it depends on other factors. So, let's look at those.
We know the "use" because you're reading this text: it's editorial.
That is, I'm teaching a subject. Note that not all "teaching" is
necessarily considered editorial. Product manuals that explain how
to use a device (such as a camera) is teaching, but it's coupled with
the product itself, making it part of a more commercial endeavor than
the sole purpose of education. If the manual were sold separately,
then it distances itself significantly from the product. And if it
was published by a completely different company (or self-published
by the author), then this distances the book even further.
If all this material were in a book that is sold for money, is it
suddenly a "commercial product?" No—not any more so than how a
newspaper is sold for money, and its content is purely editorial.
How about the fact that ads are placed on the same page as this
article? Again, no, just as ads are used in newspapers and that
doesn't suddenly trigger the news articles as being commercial.
Why? Remember the "concept" I told you: association. Just because
there's an ad on the page—whether here, or in a newspaper, or
on a blog—doesn't mean there's an association between the person
in the photo as part of the article and the ad itself. And finally,
could the person in the photo be considered an "advocate or sponsor"
for the content discussed here? Clearly not, as is already self-evident.
If I were promoting an idea or product, that would be different,
and that gets into the beginning of the gray, ambiguous cases. At the
forefront of these are religious and political "teachings." In these highly
emotional subjects, true believers often feel they are simply teaching
facts, but the courts still consider them "opinions"—well, for the
time-being they do. In any event, such text is not considered editorial,
so if photos are used, releases are almost certainly required.
Yet, there are many things that can be considered opinions, or
possibly products or services, and it's not always easy to know
whether the photo subjects could be considered "advocates or sponsors."
All the more reason why it's the publisher that ultimately carries
the burden of responsibility for whether to use a photo without a
release. If the subject were to object, the publisher has to defend
its rationale for why a release wasn't necessary.
Consider a picture of the head of the Supreme Court of the United States,
looking directly into the camera, and a caption underneath saying,
"I agree with this text." Clearly, this might be a problem because
I would be suggesting that the head of the Supreme Court has reviewed
this material, which he hasn't. It's not the photo that's the problem,
it's the text associated with it. A publisher needs to be careful how
he represents people, regardless of whether images are used.
Alluding to the religious or political uses described earlier, there is
an issue of misrepresentation to consider, but again, it doesn't apply
here, as I am making no such statements at all.
This makes the question of identifiability irrelevant because
I am not making claims that these people subscribe to my opinions.
The next question is whether the picture was taken in a private
setting. For example, a photo studio in the shopping mall that
takes people's portraits for a fee is a "private setting" because
people aren't in an open space where they could be photographed by
anyone at any time. They are now in a controlled setting and
are there specifically for their picture to be taken, and for their
own personal use. They aren't consenting to someone else using their
photo. Otherwise, they wouldn't choose to sit for the photo.
Obviously, a release isn't necessary for someone to get a photo of
himself, and the photographer or the studio is not "using" the pictures.
However, if the studio wanted to hang one in the studio itself or in the
display window to illustrate the kind of work it does, a release would be
required from the subject of that photo because the use is "commercial."
More precisely, the studio is a specific place of business, and the
display of a photo of someone would imply by itself that the person is
an advocate or supporter of this business. This will come up again later
when contrasting it to a web site, where this distinction isn't so clear.
That is, "illustrating" the kind of work a photographer (or studio) does
is separate from "promotion."
In the example of the photo studio, is the fact that it's a "private
setting" a trigger for the need for a release (for someone else to
use/publish the image)? Not by itself it isn't. The "privacy" aspect only
means that you're taking photos of someone that has not given up privacy
rights—if they want you to take pictures of them in funny clothes, or
doing what would otherwise be embarrassing in public, that's their right.
And their act of letting you take their picture isn't under the same
conditions as if they were out in public doing the same thing.
The same is true of whether you ask someone to model for you, whether you
pay them or not: if you're asking them to pose in particular ways, or to
wear clothes, or anything at all, this is not a "candid" photo that can be
treated the same way as those taken in the public. For a detailed discussion
on shooting professional models (or anyone in controlled settings), see,
Pro Models and Their Agencies (Wednesday, April 21, 2010).
Another misunderstanding people have is the difference between "privacy"
and "private property." In fact, the whole issue of "property" has
been misconstrued by photographers over the tears to the delight of
property owners. Property itself has no implicit rights the way people do.
Photos of property has to be "protected" either by trademark law, or
in some cases, copyright law.
The most common example people use is photos of buildings. There are some
that are trademarked, like the TransAmerica Building in San Francisco.
The law regarding trademarks is such that a violation occurs only if the
nature of how the photo was used would cause a viewer to be confused
about the association between the publisher (whoever put it into print)
and the owner of the building. That is, just because you have a photo of
it that you took on your vacation to San Francisco on your website
is not a violation of copyright or trademark. And just because you are
selling it does not constitute a violation either. It would only be a
violation if someone licensed it for use in an ad that implied that
the advertiser was the TransAmerica company (or that TransAmerica endorsed
the company). This would be grounds of copyright and/or trademark
infringement, and the liable party would be the user of the image,
not the photographer. (Again, see Photographers' issues concerning trademarks and photography for more on trademarks
and copyrights, and Model Release Primer for info on "who is liable"
for model releases.)
This can be confusing because this compensation has nothing to do
with civil code (that is, "publicity laws"), but with contract law in
general, and that can vary from state to state. California requires
that any contract must have some kind of consideration, or the contract is
unenforceable. The subject is summarized extremely well on page 20 of the book,
Fundamentals of Contract Law.
(The link will take you directly to page 20.)
In brief, it says that a contract can only be enforceable (and defensible)
if there is "consideration" (compensation). If there is no consideration,
the law calls it, a gratuitous promise, where one party agrees to do
something in for or without reward. Courts will uphold this promise for
situations such as pledging a donation of money to a charity, but not
if the party has relinquished a right, which is precisely what a model
release is doing. Hence, it's a contract, not a promise, and therefore
consideration must be given (and the contract should say so to avoid
disputes later).
Consideration doesn't have to be money; it can be anything. Even barter.
It just has to be something of "value," or as is used in legalese, "for
valuable consideration." Because this is vague, most courts interpret
this as being whether the contract entered into between the parties
were done in full awareness of what they were getting into. So, if you
write into the model release that you will give the subject a fake Rolex
watch, and the person agrees, a judge would probably say that's ok.
But, if it says you'll give them a verbal compliment, a judge might
have a problem with that. Obviously, the item of value must be a "legal"
item—recreational drugs are not going to look good in a judge's opinion,
regardless of how much "value" they may have.
A more typical example is where one goes on tour with an adventure travel
company. The clients sign a liability waiver that includes "model release"
language as well, and the consideration in this contract is the simple
fact that they are going on the trip. The same kind of thing can be found
on admission tickets for certain performances (where they may have a
photographer take pictures of the audience), amusement parks, and other
private events where the public pays to enter. In some of these cases,
people agree to have their likeness used (if their photo is taken), whether
they are aware of it or not. Now, strictly speaking, it's unlikely any of
these companies will use such photos without asking people directly anyway,
simply because of the bad press they'd get if someone were to complain.
But the point of this section is merely to point out that the "valuable
consideration" portion of the contract can be satisfied by many things.
If you're a photographer and you're getting grab shots in public, and
asking people to sign model releases, there is no such consideration
as in the above examples. So, what do you do?
Some photographers like to offer someone $1 to sign a release. This is
fine, but if you plan on shooting a lot of people and getting a lot of
releases, you're going to lose a heck of a lot of dollars, all for photos
that are highly unlikely to ever be used or licensed by anyone else (and
even then, they aren't necessarily likely to need a release). It may be
easier to just offer to email them a copy of the photo(s) you take. Here,
you can get contact information (which you need anyway), and you're done.
Professional photo shoots usually involve a modeling agency, which will
produce a release for you to sign, binding you to limitations for what
you can do with the photos. Usually, the client and use are known ahead
of time, which is written into the contract.
Note that not all states require consideration. New York doesn't. You can
have someone sign a model release and give them nothing. In fact, you can
even insult them. (Some New Yorkers actually do this as a matter of
professional courtesy.) Either way, the model release "contract" is still
valid. Every state is different, so if this matters to you, check with
your state's website.
The Risk/Reward Analysis
First, let me put you at ease: most disputes never go to court.
Please, read that again. Now, let me put you further at ease: even when
cases do go to court, the photographer is not the one people go after.
It's the publisher. Remember when we went over that? I remind you once
again to please read Model Release Primer, because that clarifies
where the burden of responsibility lies. (That chapter also discusses the
exceptions.) It's sad how I get email from people who are so concerned
with the most frivolous matters, like whether they can place an old
black and white, faded photo of some guy they have no idea who it is,
on a website that talks about refurbishing old photos.
Relax, and commit this to memory: people sue either because there's a
perception of easy money (usually, a false one), or because they're just
upset about how an image was (or will be) used. If they are upset, they
may threaten you till they are blue in the face, claiming to get a lawyer
and sue you. They may even get a lawyer. But once they do that, the lawyer
will quickly inform them that, unless something is done with the photo,
nothing can be done. In this case, the lawyer may grandstand saying that
you're in trouble, but this is just a performance. They can't do anything
to you because you haven't done anything with the photos. And if you did
happen to license it to someone who published it, then they go after the
publisher, not you.
About lawsuits: it's expensive to sue someone. Incredibly expensive.
The cost of hiring a lawyer to sue you is so exorbitant, that unless
you are both egregiously guilty and stinking rich, you're worrying
over nothing. Of course, this is not a green light to publish nude
photos of your ex-girlfriend because you happen to be homeless and
living under a bridge. You also don't want to be burdened by the "hassle
factor" of getting badgered by annoying letters from angry people who
"threaten" suits, even though they will eventually learn they can't
afford to sue you. Millions of photos a year are published without
a model release in ways that, if accompanied by a litigious lawyer,
would end up in at least a healthy settlement. There are fewer suits
on wrongful publication of images than there are tax audits, lottery
winners, or elephants that stand on one leg at the circus. It's just
a very rare event, and usually limited to high-profile celebrities
where their images have financial value.
Lastly, remember that you're in business to make money, and business
is about relationships. Regardless of the law, you want people to be
happy, especially with you. No matter what your circumstances are, the
best way to handle any kind of dispute is not by trying to explain the
law to someone. That never works. Instead, allay their fears about
how their images may be used. If they're really irate, just say you'll
never ever use them. (At such a point, the goal is nothing more than to
end the argument.)
The risk of legal entanglement is not something that should scare you out
of the photo business, or even cause you to limit your subjects to birds,
bees, snow and trees. Yet, I don't want to put you too much at ease: these
are important issues, and guidelines should be followed to the best of
your abilities. Just don't worry.
The Perils of Getting a Release
We all understand that the photographer is the apparent target
simply because he was there to take the picture in the first place.
And, because of the close relationship between the photographer and
the publisher, it's in the photographer's business interests to get
the release because he has immediate and convenient access to the
person in the photo. So, this means that the photographer really
is the person who will be getting a signed release, regardless of
who ultimately publishes the image. But, the process of obtaining
that release isn't so simple either.
There are upsides and downsides to the prospect of getting a subject to
sign a model release. Because people don't always take well to being
asked to sign a release (timing is important!), you can actually cause
yourself more headache by trying to get a release than if you just took
the picture and dealt with it later (or not at all). By having a better
understanding of certain realities, you can find the best balance between
the upsides and downsides of doing business.
To understand the framework for this line of discussion, let's make it
easy by defining two easy and obvious ends of a spectrum. On one end,
if you're not in the business of photography, and you're just an
everyday person that took a snapshot of something—anything, like a rock
star at a concert, a woman cooking, or a professional baseball game—and
someone says to you, "Hey! Can I buy a print of that?" You can. Why?
Because making a print and selling it is not implying that the person in
the photo supports or advocates an idea, product or service.
Some often point to the photo itself as the product, but this is
where "art" comes into the picture, which is another subject discussed
below in this section.
Now, compare that with the other end of the spectrum: if you had a
store in the mall where your business was selling prints of baseball
players—even the same snapshot you may have taken at the game you went
to—then you would need a release from all sorts of people, such as the
players themselves, the team they play for, the baseball commission,
and maybe even others that would have their lawyers on you in a second
if you had such a business. In this case, you're engaging in formal
distribution of trademarked or copyrighted material. That's a whole
nother ball of wax to deal with.
I want to close the loop on the framework we're working with here.
What all this leads to is the biggest risk of all: money. People or
companies with lots of money are more at risk, and people with very
little money are less at risk. People who do "big" things with pictures
(high profile, or mass distribution, or anything that garners attention)
are more at risk, whereas people who engage in smaller transactions (like
with only one person, or in a small market) are less at risk. Where you
are in the spectrum helps govern what your risk level is, and what kinds
of precautions you need (or not need) to make.
Big companies always have to be careful about what they do when it comes
to the public because of susceptibility to lawsuits. Even baseless
claims are costly to defend, and unscrupulous people are known to go after
large media companies for photo usages, even though 99% of these claims
are without merit. Their best defense against this is to only use released
images, even if a given use doesn't require one. Yes, this very practice is
what causes most people to completely misunderstand when and why model
releases are necessary. Just because a media company gets a release from
someone for a particular use does not mean that a release was necessary.
It means they are reducing the chance of a frivolous lawsuit. They need to
do this because they are high-profile and have tons of money. Do you need
to protect yourself from a frivolous lawsuit? That's up to you to decide,
and that's part of the risk/reward analysis.
One of the biggest mistake photographers make is assuming that they
have to follow the same "behaviors" as big companies do because, well,
they must know something the little guys don't. This is a fallacy. Big
companies do things because their risk assessment require them to be
that way. This does not necessarily translate to your business (if you
are in business), or your risk level.
Completing the Picture
The checklist that was presented earlier in the chapter may help
you decide whether a release is required for a given use of a photo.
But, real-world scenarios often outnumber the text book cases
usually discussed. There is more often no cut and dry answer.
Therefore, the Risk/Reward Analysis is used to find a pragmatic
perspective to tip you one way or the other.
At this point, let's review some common issues that people face every
day on the question of whether (or how) a release may or may not be
required. As you read through them, you may gain a better appreciation
for just how complex circumstances may become.
I alluded to "fair use" earlier when I mentioned that a photo could be
used in an editorial context without the need for a release. This applies
to people, but also to photos of copyrighted items, like works of art
(like a photo of a sculpture or a painting or another photo), or trademarked
items (like the Coca Cola logo). Photos taken of anything taken in public
and published in editorial context do not need releases because they fall
under the "fair use" provision.
Many who know a little about fair use usually only know a subset of the
many definitions it can entail, and if they aren't familiar with how
it pertains to photography, this section can be confusing, or worse,
appear misleading or unrelated. But they are related, so let's back up
and look at it from a conceptual viewpoint. The presumption of fair use
is that when "things" (people or objects) are in public view, they can be
used in any manner that is protected by The First Amendment. Many kinds
of speech and expressions are protected, but then, many aren't. You
can state your opinion freely, but you can't damage or cause harm to
someone's reputation through misinformation (e.g., lying). Obviously,
this is really tricky stuff, and we don't want to get buried in this
banter again, so let's just step back and look at photography.
The spirit of "fair use" means anyone should be aware that he could
be photographed at any time by anyone. One cannot stop the photography
process from taking place, even though a subject still has some
rights for how those photos may be used. This is in contrast to private
settings, such as going into someone's home, or in a bar or at a concert.
Under those conditions, someone actually has the right to stop you from
taking pictures. This is usually stated on an admission ticket that has
fine print that says, "no cameras." Obviously, you see people there
shooting anyway, which may cause you to think, "are they breaking the
law?" No. It just means that the property has a right to stop you from
doing so if they so desire. It's up to them to enforce their rights or
not. Turns out, most places don't mind that pictures are taken either.
So why have the restriction? There could be a variety of reasons, such
as how some photographers can be disruptive, or the property may have
certain items they don't want photographed, or there may be trademark
concerns. For further discussion on that, see Photographers' issues concerning trademarks and photography.
Interestingly, despite the fact that you may have taken photos
against the policy stated by the admission ticket, this has no
bearing on the limitations of your right to license those images.
This is because properties (and animals) do not enjoy the same privacy
or other protections by law that people do. I'll touch upon this
in the next section on Property Releases.
Now, in practical reality, the only people who really care about this
are high-profile, famous, or rich celebrities who derive some of their
gazillions of dollars of income from the sales of their own photos, shot
by their own (work-for-hire) photographers. They also don't want to see
"bad" pictures of them bubbling up all over the place, so they restrict
photography to control their appearance. If you're just at the local
bar and are watching a band, you should certainly feel free to take
pictures. Who knows—you could get a new client.
Another widely misunderstood topic is that of property releases. Most people
think that such are necessary when taking pictures of buildings and the like.
However, property does not have any special rights like people do. That
is, buildings are not protected by privacy and publicity laws.
Therefore, the people who own the property have no right to stop the
publication of such images on those grounds. However, they can protect
their property through trademark registration. Here, the publication of
a photo of a trademarked item (such as a building, a logo, or other sorts
of things) could potentially require consent from the trademark holder.
But, that's a big "if." In fact, it's a very rare exception, indeed.
A release is required if the nature of how the photo is used could somehow
confuse the general public into thinking there's an association between
the owner of the trademark and whoever publishes the photo. So, if you
took a photo of a woman standing next to a Coca Cola sign, someone could
publish that, provided that the nature of how the photo was presented doesn't
suggest that Coca Cola somehow endorsed or advocated another product or
point of view. As you can imagine, there's no way to really know in the
general case ahead of time whether such a "test" would be met, so you
can't use a general "rule of thumb" that photos of trademarked works
always require releases. In fact, as I said, that it's more the exception
than the rule.
So, why do most photographers think they need releases of buildings?
The short answer is: history. Because image buyers don't want to be
sued by anyone for any reason (remember, people sue if there's a perception
of easy money), such buyers only license images from photographers that
have releases. Doesn't matter what the photo is of—people, places,
or things—if there's something in there that could cause a litigious
lawyer to go after the publisher, the publisher doesn't want to be exposed.
So, many will only buy (and use) released photos, even though they
know perfectly well that releases may not necessarily be required for
any given use. Most publications use thousands of images for each
published periodical (book, magazine, newspaper, advertisement),
and they do thousands of these per month. They simply don't want to
have to think about whether each and every photo needs a release. It's
already a complicated subject, so when you're dealing with thousands of
photos on a regular basis, you just want to play it safe by only buying
released images, and making that the standard operating procedure.
So, for years, photographers heard from their buyers, "Only give us
released photos." The photographers then got into the habit of only
sending them released images. But what got lost in the message is the
reason; they mistakenly believed it was because releases were required,
and they also mistakenly believed they were at risk, not the publisher.
This kind of misunderstanding—and thus, misinformation—has been
traveling around the photo industry for years. But now you know better.
So, are you similarly exposed if you try to sell unreleased photos?
No. Remember from Model Release Primer that it's only the publication
of photos that requires a release. The sale of photos does not require
a release. Therefore, you do not need to obtain a release from the owner
of the building or any other kind of property just to sell or license
the photo to someone else. It is entirely the buyer's responsibility to
(1) know whether their use would potentially violate the trademark, and
(2) if so, to obtain permission to use the mark.
If this is the case, why do some stock agencies require releases for
photos of buildings and/or people? The "gentle" answer is that the
agencies just want their buyers to be assured that the images they
use are safe—that they won't be sued. The agency wants to have a good
reputation for having publishable content. The less gentle answer is
that most agencies have no idea what the law really requires, and are
simply misinformed that they think they need releases to sell the photos
in the first place. In actuality, the mere publishing of photos of
buildings (or other trademarks) would rarely, if ever, constitute a
trademark violation, and most publishers are less skittish about this
as they used to be. What's more, the internet has grown to such a
degree that most publishers are small companies or individuals; they
either are unaware, or they just don't care. This is an odd
circumstance where ignorance yields a more intelligent policy.
What's more, trademark violation cannot be done merely by publishing a
photo, like it can be done for pictures of people. The photo itself is
not a violation of the trademark, but the text associated with the
photo that would cause it to become so. This is why it is impractical
(if not impossible) to know whether any given photo of a building (or
any trademarked item) would require a release unless and until there was
an actual, known design for how the image would be presented in
publication. For it is then and only then could one look at it and say,
"yeah, that would require a release."
Still, from a business perspective, it would still seem as though getting
a release ahead of time would be useful for future potential sales. Like
photos of people, if you have the release ahead of a sale, wouldn't that
help in the sale of that photo? You'd think, but here's the catch-22 with
property releases: If a given (and known) use of the photo really would
trigger the need for consent from the trademark holder, the owner
would never just sign one without an intended use that you already know
about. In other words, they won't sign an open-ended release like the kind
of model releases that everyday people are willing to sign. In fact, if
a trademark holder was willing to sign an open-ended release, chances are
that one was never needed anyway. If a release would be required, he won't
sign it for you—he'll wait for the publisher of the image and probably
demand a form of payment. A lot of it.
The net rule of thumb is, the more easily you can get a release for a
photo of a trademarked item, the less you actually need it. If it starts
getting expensive—an expense you shouldn't pay for—then the more
likely it is that a release would be required.
This entire subject is far more complicated once you get into
details of atypical uses and subjects. So, you should read
Photographers' issues concerning trademarks and photography, and get informed. In any event, taking
photographs of (or on) buildings or personal property is always legal,
as is selling such photos to others. While the actual publication of
such photos may require consent, be sure not to confuse the two: selling
isn't the same as publishing insofar as consent is required.
Animals do not share the same rights as humans, much to the dismay
of PETA. So, photos of animals invariably do not require releases.
The "exceptions", such as specific and well-known animals, are
protected, not because they are "animals", but because their
likenesses are trademarked. An advertiser can't use a photo of
Lassie, the famous TV dog, in an ad without a release from whoever
owns that trademark. Of course, it'd be incumbent on a litigant to
prove that the photo is attempting to leverage the name and "goodwill"
of Lassie as a form of promotion. In this case, the claim would more
likely be that the ad said something that wasn't permitted, and the
photo wouldn't really be that much of a concern.
If you're looking to make a calendar of cute animals, and you're using
candid photos you took in public, you are free to do so without releases
from the animals' owners.
On the other hand, if you photographed the animals in a private
settings, not in public view, such as a photo studio, you need to get
a release because it's a private business transaction, where the person
who paid for the session did not give up his right to privacy—and that
right includes his presumption his actions (of being photographed with
or without props) is not to be made generally available.
This provision of privacy applies to people, too. When you're engaged
in an arranged photo shoot at the request of either the subject or
the photographer, the person has not waived his inherent right of
privacy, so the photos taken during that session are privacy unless
the person waives that right. In such cases, a release would be
required if someone wanted to publish the image for any
kind of publication, editorial or commercial. (Please see
Personal Privacy and Model Releases (Saturday, April 12, 2008)
for more information.)
Yes, when it comes to humor, just about anyone and anything is free
from requiring a release. You see this all the time on television and
in printed form. Saturday Night Live has made such satire a household
name in contemporary culture. But, tread carefully in this area too;
people hate to be made fun of. Also, people might make veiled attempts to
capitalize on a celebrity, and use the "satire" excuse to justify it.
For example, a company that makes the "bobbing head doll" made one
of Arnold Schwarzenegger after he became governor of California. The
governor sued under the premise that he's a movie star, but the defense
claimed that he is now a public figure, and the doll was satirical of his
persona. The company lost the case after a long court deliberation,
because the court ultimately decided that the doll was taking advantage of
Arnold's movie celebrity status, not his role as governor. That it was
a close call is a reminder that these things are never cut and dry.
And by the way, to get a sense of how all of this can easily be argued
in the other direction (despite what courts say), see
this article. I don't have an opinion one way or another—just presenting the various
points of view.
Art, Books, Exhibitions, Presentations, Etc.
Speaking of the First Amendment, artistic exhibitions (and publications)
are considered editorial and are protected from the need to have consent
from a subject in order to publish a photo of him, her or "it" (like a
building or other property). This means that you can exhibit your photos
of recognizable people or things in galleries, public fairs, photo
contests, magazines, newspapers, postcards, posters and coffee table books
(or books of any sort, so long as it's not one that's distributed with
a product, like a camera manual). In fact, "art" in any of these forms
can be printed without a release, regardless of the medium in which it is
printed, because of that First Amendment permission.
You can also sell these pieces because, as you may recall from
Model Release Primer, profit has nothing to do with whether a
release is required. ("Profit" can certainly affect the amount of
damages can be recovered later, but only after a determination
that a release was needed in the first place.) This is another one
of those mass-disinformation internet rumors, that "art" suddenly
becomes "commercial" because it may be sold for money.
Granted, it's not always clear when art is considered as such for any
given work; indeed, many commercial efforts have tried to masquerade
themselves as artwork. but an educated eye can tell the difference—as
you may recall, the ultimate test is whether the average person would
assume an implied support or advocate association between the artwork and
the person or thing depicted. For example, in the case of
Nussenzweig v. diCorcia,
Defendant Philip-Lorca diCorcia's show "HEADS" appeared at the Pace
Gallery in Chelsea (Manhattan) in September and October 2001. The
exhibition featured photographs of 17 people taken without their
knowledge in New York, Tokyo, Calcutta and Mexico City. The
photographs, tightly focused on their individual subjects and printed
at four-feet-by-five-feet, created uncommonly intimate likenesses.
In addition to the Pace exhibition, the photos appeared in a catalog
and numerous advertisements and reviews.
This court case was also the basis for a decision for a dispute between
a top photographer and the Orthodox Jew whose picture he surreptitiously
took at Times Square, then sold 10 prints of at $20,000 to $30,000 each.
As commerce, the picture would be subject to a model release; as art,
it would not. Supreme Court Justice Judith J. Gische has ruled it is art.
In another court case, Mattel, Inc. et al. v. Walking Mt. Productions,
which you can read about
here,
Mattel sued an artist and his company for copyright and trademark
infringement based on the artist's use of BARBIE dolls in a series of
photographs depicting them in various unflattering poses, and use of the
BARBIE mark in connection with the photo series. The court found that
the photos are permitted under "fair use" professions, which precludes
Plaintiff's trade claims. Furthermore, the artist may sell postcards
featuring the same photos displayed in the exhibit, since an artist
is permitted to sell his own artwork in other formats. In the court's
opinion, the average person would not necessarily assume that the
Mattel company was an advocate or sponsor for the photos depicted.
In fact, with most forms of art (such as all of those mentioned above),
the question of "advocacy" is rarely a problem. However, you start
to get to gray zones when you want to make an association, but try to
hide it. Political and religious groups run into this problem a lot,
but increasingly, many non-profits do too. They believe that because
of their non-profit status, that their "cause" is not commercial in
nature. That may be, but "commercial" is not the determining factor.
It's whether there can be an association or implied affiliation between
someone and the organization. That is the determining factor.
Publishing photos of recognizable people in editorial books
(which includes almost all books) never requires releases (though
publishers often ask for them anyway, as discussed earlier, and in
Model Release Primer.) Many photographer forums say that book covers
are exceptions (the thinking being that the cover "sells the book"),
but this is untrue. The 11th Circuit court ruled on July 18, 2006,
"amazon.com did not violate a person's right to privacy or commerce
simply because the photo was used as the cover of the book."
(The court case and the circuit's opinion is written
here.)
The exception to when "art" isn't really art, brings us back to the
example where you have a portrait studio in a shopping mall. Remember my
point about posting a photo of someone in the store to demonstrate your
work? That's a commercial use because you are promoting your business.
Here, the photo—or "art" in one of its forms—is being used in a
commercial context because it is very specific to the nature of the
business. This is quite different than a restaurant, where artwork is
not so clearly a part of the establishment's "business model." Here, it's
more widely accepted as being part of the decor. (One can argue that
decisions to eat at a place aren't based on its artwork.) What's more,
it is generally accepted that eating establishments have always been
venues for art. This de facto standard has been established long ago,
and courts usually uphold such traditions.
Art exhibits—and indeed, the sales of photos as artwork—are exempt from
requiring a release from subjects that happen to be portrayed. Courts
have decided repeatedly on this matter, including those situations where
other potential conflicts may be intertwined. See
this article
for a case in point.
However, an exception may apply if the exhibit were displayed in
a way that would make the exhibit appear to be more of an advertisement.
For example, American Express, the credit card company, once sponsored an
exhibit of photographs from Annie Liebovitz, where her portraits of famous
people were portrayed. While the US Constitution provides a person the
right to control how their likeness is used for advertising and promotion,
the legal statutes indicate that there must be a direct connection
between the person portrayed and the product or service being advertised.
In fact,
California's Civil Code 3344(3) specifically says
The use of a name, voice, signature, photograph, or likeness in a
commercial medium shall not constitute a use for which consent is required
under subdivision (a) solely because the material containing such use
is commercially sponsored or contains paid advertising.
If Annie Liebovitz's exhibition were only underwritten by American
Express, consent from the people in her photographs would not be
required, even if the entire exhibit was overrun with ads and
promotions. But in this case, under each large portrait was a copy of an
expired American Express card that was once held by that particular
celebrity. This establishes the direct connection between the person
and the company, so their consent would be required from each such case.
A less clear case would be if there were an art exhibit sponsored
with an effort to raise money for AIDS research. Here, the legality
isn't so much in question insofar as publicity goes; the real liability
here is that of privacy. The law provides protections for people's
reputation and livelihoods as well, and someone could make the case
that they have been harmed by the implication of being affiliated with
the cause or the disease. This would be a difficult and ugly public
dispute, of course, but the point here is to recognize the difference
between being associated with a commercial expression, where someone else
benefits from someone's photograph, versus a personal expression, where
the photo subject himself might be harmed. Discerning between the two
is not easy.
To Shoot or Not to Shoot?
Should your concern for whether a given image requires a model release
govern your decision on whether to shoot it? The clear answer is an
unambiguous no. There are those who believe that if you may need a
release for a photo, then you better not even shoot it. Nothing could
be further from the truth, and is easily proven by the simple fact that
photography is a common activity that everyone does, from the three year
old toddler to the vacationer in Hawaii. Even blind people have been
known to take extraordinary photos. It's a hobby to most people, and laws
don't change simply because you may be a professional (or want to be).
If you have a camera, and you are in a public setting (in most free
countries, including the United States, for the time being, at least),
you are perfectly within your rights to snap those pictures.
You can even sell them. Whom you sell them to, and what they choose
to do with your photos is another thing entirely. So, even if you're
unsure about how you can use an image, keep this in mind: if you
don't shoot the picture, you've lost a potentially great image and
a potential sale. If nothing else, you could have put in your
scrapbook. If you can somehow manage to get a release later, or if
you want to use the image in an editorial context, you always have
that option. The rule of thumb is, shoot first, and ask questions later.
Physical Ownership and Usage Rights
Physical ownership of images (prints, film, and digital) has nothing
to do with rights to use them. And, vice-versa: if you own the rights
to an image (because it's a photo of you), but you don't have the
rights to the media, you aren't entitled to the photo. Hence, the
matter of inter-dependency.
As you know from reading this chapter so far, if you're the photographer,
you own the physical media to pictures you shoot, but it doesn't mean
others have the right to use those pictures commercially. (That's
why you want to get a release.) Conversely, however, if you're not
the photographer, it doesn't necessarily mean you can use pictures of
yourself either. Why? Because you don't own the copyright to the
images. Yes, the photographer owns the copyright to the "work,"
even though the subject owns the right to his own likeness. Normally,
you get around this by purchasing (or coming to some other agreement
to acquire) the image(s). This "license agreement" is the method
by which one obtains those rights. The terms of that agreement is
what sets limitations on either or both parties.
So, the lesson: "usage" and "ownership" are two very different matters.
You can own images, but not have the right to use them. You own the
rights to yourself, but unless you have a legal access to the copyrighted
work, you can't use them either.
To clarify a common misconception about the relationship between ownership and
rights: regardless of whether the subject grants rights to a photographer,
it does not mean the subject can demand the physical media from the
photographer. The media always remains the property of the photographer,
regardless of whatever rights he may or may not have to use it. If the
buyer is the subject of the photo, then he can obviously do whatever
he wants—he owns both the media and the rights to it. But if the
buyer is not the subject, the sale of the physical media does not
transfer the rights to use it. There are broad implications of
this: if someone takes a picture of you, even if it's against your
wishes, you do not have a right to confiscate the media. Similarly,
if you take a picture of someone else, you are not required to
forfeit your media just because they demand it. (Note, the only
time someone can prohibit your taking a photo is on a private
property as discussed earlier.)
The point to all this is that the use of an image in a commercial context
(only those where a model release would be required) requires cooperation
from both the photographer and the subject. Neither can use the image
without the consent of the other.
Even if you don't have a model release and you cannot use the picture, you still own the picture.
You are not required to forfeit your media (prints, film, digital copies)
just because someone did not authorize you to take their photo or use
photos of them that you already took.
Owning a photo does not give you implicit rights to use it.
If someone else took a picture of you, it doesn't mean you can license
the picture, or use it any way you wish. You do not own the copyright,
since you are not the photographer. The exception to this is if you
hire the photographer to photograph you and the contract is written
as a "work-for-hire" agreement.
Buying a photo does not implicitly transfer the rights to that photo to you.
You would have to either obtain a license to the photo (if it were required
for your intended use) from the original subject, or you would need to obtain
it from the current license holder (assuming one exists).
A person emailed me saying that he purchased raw negatives of the Beatles
on eBay and thought it gave him the right to make new prints and sell
them. This is not the case because this would involve reproduction
and distribution of copyrighted material. (The Beatles are not just
copyrighted, but also trademarked, which is another kettle of fish.)
He would have to obtain a release from the current owner of the Beatles
trademark (Apple Records). If this person wanted to make a few prints
for himself, that's fine. "Personal use" is never regarded as commercial
reproduction. Want to give some to your family? Still ok. Friends? We're
starting to get into that gray area where it looks more like a form of
distribution, but chances are, no one's going to be sending you letters
just yet. The more you try to stretch this, as you can see, the closer
you get to getting yourself in trouble.
Posting photos on websites for the purpose of selling/licensing is
not a form of publication that requires a release (from people or
property).
The legal case that most legal analysts point to is
Corbis vs. James Brown.
While this case was never adjudicated because the parties ultimately
settled out of court (after appeals that didn't appear to favor either
side), my interviews with legal scholars, reporters and judges who were
familiar with this case felt that the case would not have changed the
current law—that sellers have any liability for how publishers use (or
misuse) images of others.
The primary issue they cite is the countrary argument: if sellers were
in the position of being held accountable for how a buyer published
an image, publisher's would no longer bear such responsibility, and the
rate of violations would skyrocket.
If someone tried to bring a claim against the publisher, they would
point to the Corbis case as precedent. That is, if someone sold them
the image to publish, it must have been ok to publish. If it wasn't
ok, then it's the seller's fault.
Not only do courts not want such a scenario to take place, but courts
also recognize they don't want non-liable parties in a position of
making complex legal decisions on behalf of people they don't represent.
Therefore, all legal analysts I've ever interviewed on this subject
feel confident that the Corbis case would not have gone against them.
That there is no other case where a seller was held liable for how a
publisher used an image, it's reasonably assured that making an image
available for sale does not require a model release. This includes any
and all forms of publication and media, whether it's traditional print
or online formats, including personal web pages, photo-sharing sites,
social media sites, stock photo sites, or anywhere.
The easy way to think about this is the simple case of a photo of a
high school football player scoring a touchdown. You can put it up on
your website and license it to a newspaper as part of its story on the game.
The fact that its editorial means that a release isn't necessary.
That you can sell it for such a purpose underscores the reason why
you can place it for sale without a release. Just because someone else
might want to license the photo in a way that would require a release
doesn't suddenly mean you can't place it on your site for sale. Selling
doesn't require a release, and you aren't required to know whether a
given buyer would require a release for their particular use. It's out
of your hands. Again, see Model Release Primer.
However, you still need to consider the "affiliation" implication, and
this is more of a design consideration of your website. That is, you
can display images for sale, but if your use of an image would somehow
suggest that a given person is affiliated with you, or advocates your (or
anyone else's) business—rather than just your selling the photo—that
could require their consent. Obviously, this is highly subjective,
and accordingly, people tend to swing in extremes on this. You can either
use an image for which you already have a release, or just choose a
different design for your page.
Artwork is far less ambiguous—you can always sell photographic prints
without a release, and therefore, you may place them on a website as
being for sale without a release.
Using common sense to see whether an objective observer would consider a
given photo as a promotion of an idea, product or service is your best
guide. The fact that you're selling those photos is not the same as
the promotion of them. A web page that sells photos of people is not
the same as a catalog that sells other products.
Summary
Now's the time to wrap it all up into a quick, summary package. (Or,
if you just skipped here from the beginning, get ready for the punchline.)
Here's the very, very brief summary:
Checklist for Photographers
- Model Releases are only necessary to publish pictures.
Even then, very specific guidelines are necessary to trigger the need for a
release: if the photo suggests someone subscribes to a particular idea,
product or service.
- It is highly unusual that photographers ever publish images in
a manner that requires a model release.
Photographers sell (or license) photos to others who publish those images.
- Selling or licensing photos does not require a release.
Such is not a form of publication, nor is it an action that suggests
anything about the person in the photo. It is merely a financial
transaction. - Placing photos on websites for the purposes of selling
them does not require a model release. It is what courts have called a
vehicle of information (that the photo is for sale). The buyer of the
photo may need a release if and only if the nature of its publication
would trigger the need for a release.
- Money or profit has nothing whatsoever to do with whether a
release is required.
Because the need for a release is only governed by how and whether
the person in the photo might be regarded as subscribing to an idea, product
or service, it is entirely irrelevant whether money (profit) was made.
Similarly, even free uses of photos (or use by non-profits) does not
mean that releases are not required. Get the whole idea of money out of
your mind.
- Photos of property (of any sort) even more rarely require releases.
There are substantially further limitations on when a release is necessary
for buildings or other property, because "things" don't have rights. Things
are protected by "copyright", and its extremely difficult for a photo of a
copyrighted thing to violate that copyright. In fact, it is impossible for
a photo by itself to violate the copyright of something—rather, it's the
text associated with a photo that might. For example, the text with an image
of the Transamerica building being used in an ad that might suggest the owners
of the building advocate some other, unrelated idea, product or service.
That would violate the building's copyright and its trademark.
A photographer doesn't publish images in that manner, so the photographer never
need a property release. (For more information on that, see Photographers' issues concerning trademarks and photography.)
Checklist for Non-Photographers
If you're not a "pro" photographer, and you're wondering about model
releases, you probably fall into one of these three categories:
Everyday people who simply take pictures as a hobby.
If you have no intent to ever sell or license your photos, don't even
read this. You can just go about your day to day life, taking pictures
of anything and everything. (In fact, pro photographers can do this too.)
Getting "permission" from people you photograph is not required.
Where everyday people can get into trouble (but still not very often),
is if they say something about someone that somehow causes him to lose
his job, or destroy his life. This has nothing to do with photography
per se—it's more about the "text" of what you say> Photos are
often used in conjunction with defamatory statements, but it's not the
photo that gets people into trouble.
People who are upset that someone else took their picture and published it.
Of the emails I've had from people who fit into this category, there's
only been one case where someone actually had a valid claim for how
the image was used that was worth pursuing. In short, unless someone
has used a photo of you in a commercial context (also discussed in this
chapter) or has violated your privacy, you can't do a whole lot about
it. The sadder part is, even for those who may have a valid claim, the
infringements are usually so small that doing anything about it would be
too costly to bother with. A major part of this chapter is the section
on the Risk/Reward Analysis.
Photographers who wish to license or sell photos.
These people need to be informed about model releases because it affects
a huge spectrum of sale opportunities. You want to get model releases
so you can sell those photos to others, and it's those people who need
releases, not you. That photographers get model releases is not because
they need them, but they do so as a convenience to the people they
sell pictures to. They're the ones who need them. The common perception
among photographers is that you need a release to protect yourself. This
isn't the case. As discussed in this chapter, you don't need to "worry"
about having releases so much as you need to be sure you understand the
nature of how the law works and what your responsibilities are. That's
why you should start by reading, Model Release Primer.
Privacy and Publicity Laws
Regarding commerce, if a photo is to be used in a commercial context
that requires a release (note: not all commercial uses require releases),
publicity laws kick in. But this is not well-defined at all, and is
usually where the internet rumor mill opens up, and just about everyone
gets it wrong. So wrong, that they get themselves in more trouble by
trying to protect themselves from something that they shouldn't have
worried about in the first place.
If you haven't done so, immediately read Model Release Primer.
That short chapter basically encapsulates why releases are necessary,
and who is ultimately responsible if an image is used improperly.
The reason for getting model releases is not to protect you, it's to
protect those who ultimately license the photos from you. If it were
that simple, why do photographers care about getting people to sign
model releases? Because more clients will buy a released image than an
unreleased image. Therefore, getting a model release is a business
decision, not an act of self-protection. (Yes, exceptions exist, and
that's also discussed here.)
Even if you are worried about yourself, the practical reality is that
no one is going to sue you unless (a) you have a lot of money that
can be taken, and (b) they have a lot of money to spend on the suit.
For someone to bother with any suit, they need to have a strong case, or
don't mind risking the loss of a lot of money in trying. And because
of (2) above, they aren't going to sue anyone unless they're really,
really upset. (Or, unless there's a lot of money to be had at little
risk or cost.)
The Final Summary (I mean it this time!)
Ok, so that's the summary—the simply-stated bottom line. So, to wrap
it all up... again... Let's return to the photos of the school soccer
game mentioned at the beginning of this chapter that you started reading
several weeks ago. Maybe you can now answer some of these questions
yourself. If you want to license some to the local paper for a news
story, now you know you can—without a release. If you want to sell
prints back to the parents, again, you know you can do this—without a
release. If the school wants to put your pictures on its website, you
know it can do this—without a release. However, if you want to license
the pictures to someone that will use them in some sort of ad,
promotion, or statement, that's another story. For these, they will need
a release, in which case, it's customary for the photographer to get it.
The second-most important aspect we examined is the
Risk/Reward Analysis
Here, the lesson is that you can't just look at things as whether
it's strictly legal or not. You have to look at the more practical,
real-world considerations. In the soccer game example, if one of the
parents has a problem with your showing his kid's face in print, your
biggest problem is probably going to be social concerns, not legal ones.
You may have the legal right to sell the photos, but agitating other
people isn't going to help your business. The point here is that
being "right" isn't enough to be profitable.
The examples I gave in this article are simple, but as I mentioned
in the beginning, most situations aren't as cut and dry. And while
most consumers don't run into them often, pro photographers do, and
as such, you must get used to having ambiguously wide, gray lines
on whether a release is required for any given subject or use. So,
while details are critically important to learn, it's impossible
to put them into use without a pragmatic voice that interprets
circumstances for the reality that they are.
There's no way to teach pragmatism. You either get it or you don't.
One way to determine if you're not being pragmatic is if you find
yourself constantly worrying about whether you need a release for
one photo without thinking. If you find yourself looking for literal
legal interpretations, you're not be pragmatic. If you're trying to
pin-point specific arguments for or against something, you're not
being pragmatic. There's certainly nothing wrong with contemplating
the subtler nuances of the law and having thoughtful discussion
about it, but if it affects your decision-making on how to move
forward with business, then you're not being pragmatic.
Lastly, don't assume I'm suggesting you be carefree about the issue
of releases. I'm not—you can make as many bad decisions by being too
lax on the matter as well. Pragmatism is finding that reasonable middle
ground where the costs and the benefits are in balance.
Oh, and in case you missed it, please read Model Release Primer.
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