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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
The internet is a virtual echo-chamber of facts and myths of all sorts.
When something goes viral, there's no stopping it. Even the most
blatant falsehoods can perpetuate for years if they cause no
harm in believing them. An example is the myth that the different regions
of the tongue tastes different types of things: sweet in the front, sour
in the back, etc.. In fact, all taste buds are identical, but the myth
started from a single, faulty study in the 1800s that was published in
a school text book, and it's been repeated ever since.
In the photo business, the greatest myths are those involving model
releases. If you have ever considered selling (or licensing) photos
on your own, or through a stock agency, you've probably been told
that photographers need "model releases" to sell photos of people, and
"property releases" to sell photos of buildings and the like. Some stock
agencies actually reject images unless these photos have releases.
While it's true that model release are necessary for certain situations,
the actual laws about these issues are complex and imprecise, and because
people want quick, simple and definitive answers, they over-simplify
the root ideas behind the law, and contort them into inaccuracies
that now circulate the internet today. Yet, they perpetuate because
these myths cause no harm.
If there's no harm, what's the problem? Simply, photographers are
losing enormous opportunity by not trying to sell the images they don't
have releases for. Furthermore, they are going to great lengths to get
releases they don't need. Most photographers could continue to have very
successful businesses without ever getting model releases, all while doing
exactly what they are doing today. Sure, releases are important for many
types of publishers, so if you do get releases for their benefit, you can
expand your buyer base by getting them. But it's a proportionally smaller
market than people think, and the minimally incremental income is unlikely
to offset the time, effort and resources necessary to properly obtain,
manage and catalog an ever-growing inventory of model releases. Keep in
mind that if you do have a release for an image that your buyer depends
on so they don't get sued, they may still pass on the image if the
model's contact information is out of date or the release is perceived
to be risky for any reason. So, ask yourself how much time do you want
to invest in managing this database for a slice of business that, despite
what the internet rumormill would have you believe, is quite small.
Since the market of buyers that can buy unreleased images is enormous,
it's worthwhile knowing the real facts about model releases so you can
optimize your financial opportunities with all your images..
Quick Facts
You do not need a model release to take pictures.
Nuff said. Don't let anyone tell you otherwise. Everyone in the world has
a camera on their phones, and photos are taken constantly. You don't need
someone's permission to take their pictures. Now, just because you might
eventually intend to sell your photos has nothing to do with the ability
to take pictures in the first place.
You do not need a model release to sell pictures. And "profit" has no effect on whether a release is required.
There are two aspects to this question of "profit." From the perspective
of the seller and the buyer (or publisher).
First, as most people know, publishing news about people—and thus,
showing pictures of them—does not require a model release. Accordingly,
newspapers buy photos from people, either from their own paid staff of
photographers, or from people in the general public. In both cases, neither
the newspaper or the photographer (person selling the photo) needs a model
release. Profit has nothing to do with it. The photo can be sold for a lot
of money, and the newspaper can sell ads that are placed next to that to
that photo. It can be placed on the newspaper's website that's behind a
pay wall.
So, selling a photo (and making a profit doing so) to a newspaper
also does not require a release. Furthermore, the newspaper is allowed
to make money (even a lot of it), even directly from that very same
photo. It can place highly paid advertisements next to it, or put it
on a website that requires a paid subscription. Profit from either the
sale of the photo, or the use of the photo, has absolutely no bearing
on whether permission is required (e.g., a model release).
What makes a newspaper unique here? This is where the split comes up
between the buyer and the seller. If the buyer were not a newspaper, but
a company selling a product, and they wished to use the photo in an ad
for that product, the company would need a model release. Why? Because
in this case, the person in the photo could be perceived as promoting a
product or service. In short, an advocate. This is where US "publicity
laws" come into play. People have the right to control if and how their
likeness (a photo) is used to promote products or services. Profit is not
a factor (for either the particular use of the photo, or the company that
published it). In determining whether a release is required, the only
factor is whether the individual was represented in a manner that
violates their right of publicity. The "profit" aspect only comes into
play when assessing the damages after the fact—if and only if the
person's publicity right has been violated. I get into this further in the
section on "commercial use."
It's the publisher's obligations to get the release—it's theirs and
theirs alone. Not the photographer's. You are not expected to be the
first line of defense against a company—if someone doesn't like how that
company used their photo, they sue the company (or the publisher). They
cannot sue after the photographer. (Well, they can threaten to do so,
but it won't go anywhere.)
In summary, the law does not require you to have any knowledge of
the buyer or their intended use of a photo, so you are always allowed to
sell photos without a release. And this is the case whether the buyer is
a newspaper, an ad agency, a non-profit company, a television network,
or an individual person. The act of selling photos never requires a release.
You do not need a model release to make photos available for sale, either on your own website, or through a stock agency.
If one can sell a photo without a release, one must also be able to
"make photos available for sale" without a release. This includes the
publication of such photos in a manner that would allow potential buyers
to find them. Naturally, this includes the web.
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.
"Commercial Use" does not trigger the need for a model release.
As explained earlier, the sole trigger for whether a release is required
rests on whether the subject can be perceived as supporting or advocating
a particular idea, product or service. That can happen even if no money
is exchanged. It can also happen by a non-profit company. The simple fact
is that people have a right to control certain aspects to how they are
represented. True, many "commercial" uses of images do have people
appearing to be advocates, and this is where the oversimplification
begins. People overlook the many commercial uses where a person can be
presented without appearing to be a supporter or advocate.
One obvious test is whether you can even identify the person in the first
place. If you can't—for whatever reason—then it's a moot point. The back
of someone's head is an easy example. You can also pixelate their face, or
block out their eyes, or many other methods. So to even consider whether a
release is required, the subject has to be recognizable.
As for "making money," consider companies that sell books, magazines,
newspapers and other forms of news media. While the content of their
media may be editorial in nature (which doesn't require a release),
the promotion of their products is commercial in nature. Just because
a company may be promoting its editorial product, that suddenly doesn't
trigger the need for a model release. Promotion is a commercial act,
but simply doing so does not directly imply that the person used in
the image is a supporter or advocate. Consider how Time Magazine may
promote itself by showing the cover of an issue that features a
celebrity. Consent is not required from that celebrity simply because
the photo is used to promote the magazine, which is also a for-profit
product.
So again, "commercial use" does not itself trigger the need for a release.
A lot of people also mistakenly believe book covers require a release.
To further illustrate this untruth, consider the highly critical book
about Rush Limbaugh
("The Most Dangerous Man in America", by John Wilson),
which sports a photo of Rush himself on the front cover. And given the scathing
nature of how Rush is portrayed in the book as an irresponsible, sexist,
racist, ideologue, one would expect that Rush signed no model release or
provided consent of any kind to have him or his likeness be associated
in any way with this book. Obviously, the text is editorial commentary
about the controversial radio host, so no consent is necessary for using
the photo on the book itself.
But what about the promotion and advertising for the book? Both of those
are "commercial" in nature: profits are made, and the book itself is a
product. Again: promotion is "commercial use." Full Stop. So, one would think
that Rush would have his lawyers find any legal position possible to
stop or slow down the supply chain, from the photographer to the stock
agency to the publisher. Yet, there it is in full color, used to both
promote and advertise the book.
The reason a release is not required is because this photo—or most
any photo—would not cause a common person to believe that Rush is an
advocate or sponsor of the book. (If there were a photo of Rush standing
proudly next to a poster sized replica of the book, shaking the hand of
the book's author, then such a photo could suggest he advocated the book.
Then again, the existence of such a photo would be unlikely, and if it
were, then he probably wouldn't be filing a claim about his publicity
rights being violated.)
In short, the "advocacy" question is not satisfied simply because photos
are displayed. There has to be more context to imply advocacy.
By the way, note that the photographer who shot the photo of Rush
Limbaugh didn't need a release to take the picture or to sell the image!
Consider Corbis' position again: if courts had ruled against the in the
Brown case, this would have a chilling effect on the entire industry.
No one would feel comfortable selling an image of Rush Limbaugh to a
publisher for this book out of fear they might be sued, based on the
precedent esstablished by Corbis, were they to have lost.
Once again, this is a clear example of how and why courts couldn't have
ruled against them. The seller didn't need to know what the publisher
was going to use it for, and it turned out, this use wouldn't have
required a release. Good thing the courts didn't put them in a position
to have had to guess.
And that's exactly how this image was found and purchased.
This particular use of the image was commercial in nature, and didn't
need a release. And the same would have been true if it were a
non-commercial use as well. But, be careful not to draw the wrong
conclusion from this statement: Non-profit companies often believe they
can use photos of people in their materials because they are implicitly
"non-commercial." But again, that's not the determining factor.
How would you feel if your photo was used to promote a political
organization that you vehemently opposed, especially those that advocated
a social issue such as gun control or abortion? The organizations
that promote such points of view are non-profit organizations, and the
First Amendment gives those groups protection to publish their points
of view. But they still need consent from people that they present
as supporting those points of view. If they violate those rights,
they could be liable for damages, which courts can impose, regardless
of their non-profit status.
The moral of the story is, take "commercial use" out of your vernacular,
and only focus on the "advocacy" question. And while that's the right
place to start, such assessments are not always easy; people disagree on
specific cases and argue incessantly. As a photographer or as a seller
of imagery, none of these are your economic or legal concerns; they are
solely the concern of those who publish images.
Posting photos online is just another form of publishing.
With all this discussion about publishing, the natural question is,
"What if you're the publisher?" If you're promoting yourself, or
selling your own products or services, don't you need a release?
Aren't artistic prints "products?" What about portfolios or even
personal websites that promote photography services?
There are several aspects to all this, each of which are separate
issues. Regarding art (whether prints or online presentations),
these are protected forms of expression already. You never need a
model release to sell art of any form, including photographic prints.
The fact the "product" is a photo itself is oddly irrelevant—the
product being sold is separate from an advertisement used to
promote that product. More on "artwork" is below.
As for self-promotion, this is also a nuanced distinction. Images used
to "demonstrate" the artist's work is different from those used to promote
someone. This is easier to understand when you look at the work of other
craftspeople, such a sculptor or a painter. In those case, it's easy to
see that photos of their works are universally interpreted as "examples"
of the artists' work. If the painting or sculpture happens to be of a
person—even a recognizable one, the general public would not
necessarily perceive those subjects as advocates for the artists.
The same is true for photographers' works. Such an assertion would
require text, often in the form of a quote praising the photographer's
work. That context would require consent from the person depicted.
See the next section.
Photographers do not need releases for photos in their portfolio.
A portfolio is rarely considered a "promotional" item, unless it's
put together very poorly. Professional portfolios consist of a
collection of artistic works that demonstrate the skills and talents
of the photographer. For any given image to be interpreted as to
suggest the photo subject were an advocate for the photographer,
particular text would have to be used, which is not typical for a
good portfolio. Therefore, permission is not required in order to use
photos of people in a portfolio. This includes all forms of publication of
the portfolio, whether in physical form, or as a website, or other media.
The one thing to be aware of, however, is that sometimes photographers
take pictures of people in special, "closed sessions," where an agreement
was made ahead of time—before the photo was taken. If a subject posed
for a photographer with the pre-arranged agreement that the photos would
not be used in a portfolio or any other manner, than that agreement
takes precedent. (Of course, a new agreement, such as a model release,
can supersede it.)
A "property release" is NOT required to sell or buy photos of buildings or people's personal property (like land).
This misunderstanding begins with the word, "property" in the phrase,
"property release," which really refers to two particular forms of
intellectual property: trademarks and copyrights. Examples include
logos, designs and other works. Yes, the owners of a few buildings
have registered their buildings' designs with the trademark office, but
such action doesn't necessarily require publishers to seek permission
to publish such photos of the buildings that were erected from these
designs. An infringement claim can be made only if the use of such a photo
could confuse the general public about who owns the trademark, or whether
the trademark's owner supports or advocates another product, person or
company, or point of view. Furthermore, if such an infringement were
upheld, it is the publisher (the company that used the photo in publication)
that is liable, not the photographer, nor the entity that sold the image.
While trademark violations are not unusual, it is exceedingly rare for
one to result from the use of a photograph of any sort. It is almost always
the result of using a logo or brand name. All concerns regarding trademark
violations—especially those involving photos of buildings or any other
kind of real estate or physical property—are entirely unfounded.
It is impossible for a photo of a Coke bottle to cause a common person
to suddenly think that the Coca Cola company supports or advocates a
freelance photographer in Topeka, simply because he put a photo of it on
his web page, or sold a print of it. If the photographer sold such an
image to a publisher, and the publisher's use of the image implies that
it had a unique and special business relationship with Coke, the risk
of a trademark infringement claim rises for that publisher. No one else.
The history of the "property release" stems from a single bit of
misinformation long ago: Certain physical structures, such as the
Golden Gate Bridge and the Transamerica building in San Francisco are
based on designs that happen to be registered trademarks. And, the
owners of these designs are known to be litigious in protecting their
marks from misappropriation by other businesses, seeking to capitalize
on their recognition value. And yet, none of those cases have ever involved
photographs of such designs. Still, for a brief period of time, some
publishers feared publishing photos of such places would put them at
risk. So, they told photographers "we can't accept these images without
releases." Unfortunately, they were unclear in stating that they needed
releases for the use of the trademarks, not the buildings themselves.
Publishers quickly realized their fears were unfounded, and they lifted that
requirement, but the rumor perpetuated among photographers nonetheless.
Over time, the misinformation trickled around the photo industry, and
then back upstream to new publishers and stock photo agencies, neither
of whom were never involved in the original situations.
Today, many publishers and stock photo agencies require property releases
for photos of buildings, but not a single such document has any legal
standing. Since the worthless document causes no harm, no one has had
much incentive to question it, and the practice continues.
To be crystal clear, property releases are not required to sell or resell
photos of buildings and other real estate or physical property of any sort,
including land, pets, livestock, homes, etc. If something happens to
be a registered trademark (building or otherwise), then the publisher
will already be quite aware that they are the ones that need to obtain
permission from the trademark owner (which may not even be the building
owner). Any permission obtained by the photographer would be entirely
useless to the publisher.
For more, see Photographers' issues concerning trademarks and photography.
You usually do not need permission to shoot pictures of (or on) private property.
While it's true that property owners can restrict photography, that's
not saying much. They can also stop you from picking your nose. It's
their property, so they can stop anyone from doing anything. You've
seen signs that say, "No shoes, no shirt, no service." There's also the
sign that reads, "We reserve the right to refuse service to
anyone." In short, property owners can apply restrictions indiscriminately
and inconsistently and arbitrarily.
To initiate this restriction, the owner has to proactively do something.
such as make signs, print it on tickets, or verbally tell you. The key fact
is that you're not prohibited by default. Sometimes, photographers
will seek permission ahead of time, and this is not only unnecessary,
but invites more problems than it's worth, or is necessary. This is not a
simple matter of being courteous—the mere request on its own has itself
an additional set of implied consent conditions that really complicate
matters, and this applies in both cases of whether they grant or restrict
that permission. (This is a complex matter of law that I won't get into,
but it edges into the area of privacy rights.)
So, unless and until you are told not to take pictures in advance,
you can shoot photos on private property and you can sell those photos
legitimately. (See later section on "ownership.")
You do not need releases for Art, Books, Exhibitions, Presentations, Fairs, Contests, Postcards, Calendars, Etc.
As stated earlier, the only time a release is needed is if a person can be
seen as supporting or advocating an idea, product or service. True, there
are often disputes about whether a given publication of a photo of someone
could be construed in such a way, but the dispute gets closer into the
safety zone when that publication is a form of artistic expression. The
First Amendment of the US Constitution protects "artistic exhibitions"
(and publications) as a form of free speech, so consent from anyone else—
by definition—is never required. Money or profit has nothing to
do with whether a work is published or "depicted in an artistic manner."
Again, people argue frequently about whether such depictions are, in fact,
artistic in nature, which leads to a complex argument: is it art, and
if not, is it a promotion, and if so, is it the type of promotion that
should have required consent from the person in the photo?
There are a lot of "ifs" there. While these are all good questions,
the reality is that no one has ever successfully won the argument that
a model release was necessary for a photo that was used in a book, in
an art gallery, or at a fair, or any of the items in the above list. In
short, the law is on the side of the First Amendment by default - a
claimant bears the burden of proving otherwise, and that's a difficult
and very expensive bar to clear. While this is indeed a very deep and
complex subject, those wishing to seek quick answers can feel relaxed:
"don't worry. You're fine."
For for more info, I encourage you to
read this.
You might also wish to read
Personal Privacy and Model Releases (Saturday, April 12, 2008).
Ownership of physical pictures and ownership of rights are different.
When people hire photographers to take pictures of them, they think they
own the photos, or have rights to publish them. They don't. This has to
be agreed upon, usually ahead of time (but it can be negotiated later.)
Normally, this isn't a problem. But where things break down is when
subjects don't like the photos of themselves. Here, they try to demand
them back, but they don't have this right. (They also cannot retract
permission if it's been granted in writing, such as a model release.)
The same thing is true of pictures taken on (or of) people's property.
They think that because it's their house, or their private event, or
their pet, that they have the rights to the photos. They don't. Nor
can they stop the photographer from publishing those photos. Non-humans
do not have inherent rights, unless protected by trademark or copyright.
Conclusion
The reality is that photographers (and stock agencies) don't get sued
for the publication of an unreleased image. And given the very high cost
of suing someone, litigants are usually told by their lawyers to go after
the "publishers" of the images in question, as they are the ones who
bear the true legal liability.
As an active photographer, understand that most people are entirely
uninformed about model releases, and factor this into your business
dealings. You will be told by many—publishers, stock agencies and
others on the internet—that model (or property) release are required
before selling or buying photos, or for accepting your images into a
stock agency. Despite their being wrong, this is the way of the world,
and you can only do what they ask, or don't play.
But don't underestimate the sales potential of your unreleased images,
and the large market of buyers who don't make such demands.
For those with interest in reading the details, I have many articles that
answer all the technical questions, like this one
and this one.
I also wrote a book called, Photographer's Guide to Model Releases.
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