Now that my book on Model Releases is out, I've
been getting lots of email asking whether the book applies to non-US
photographers, since I'm American and I cite many US laws.
First, I must point out that, while the book does cite a few laws,
this is not a legal book—it's a business book. Making smart business
decisions (such as whether to make money or to avoid risk) requires
more than just the knowledge of "law." This is especially the case
for all of the laws that apply when model releases would be applied,
regardless of whose laws or what country. What's more important is that
you understand the principles and concepts behind what the various laws
are intended to protect. Never are there conditions so cut and dried that
all you needed to know is the letter of the law and your decision-making
is done. That's why this is a business book—I examine (and explain) the
legal analysis and intent behind the scenes so you can make appropriate
decisions on a case-by-case basis.
Now, as for why US laws are so critical here, let's begin by understanding
the role of international trade and globalization. Whether intentional or
not, the marketing materials that companies use often end up "landing" in
the US somewhere, and they do so in such a way that could trigger US laws.
For example, say your local Canadian bank wants to license your photo
of a farmer in Alberta for ads it places on web sites. You may think
that has nothing to do with US publicity laws. But, if the bank targets
any customers at all in the US, even if they are investment partners or
other kinds of trade organizatons, then the bank is said to have "reach"
into the US. And once that happens, any business it conducts within the
US (such as that advertisement) is subject to US laws. Not all its business
conduct is subject to US laws, only those portions where the "reach"
penetrates borders. In fact, Royal Bank of Canada does quite a bit of
business in the USA, directly targeting US consumers, a fact that none
of the Canadian photographers I've interviewed were aware of. It is
here where that farmer could have a claim in US courts for the use of
his photo without a release. It is not uncommon for non-US entities to
file claims in US courts under US laws, even though none of the parties
involved may be US citizens. The book gets into details about how and
why all this works.
If the publisher can be shown to have such "presence" in the US,
a claim can be filed in the US under US laws, regardless of the
nationality of any of the parties involved. If you are from another
country, and take a picture of someone in yet another country, and license
it (without a release) to a company from yet another country, but they
used it in an ad in a magazine that is published or distributed in
the U.S., the subject could file a claim against that company in the US
under US laws.
Because of this, international companies that advertise in international
magazines, or on the internet, or on television must be cognizant of laws
that apply in each of the countries in which it has "presence." While that
may sound onerous (it is), I come back once again to my earlier point: the
US has some of the most punitive laws and litigious culture than any
other country. So, it is more likely that a company that complies with
US laws is probably covered for most other countries as well. And you
want to sell photos to those companies.
Indeed, proving that a company has "presence" in the US could be onerous
for the claimant as well. Clever defense lawyers will do their darnedest
to refute such broad interpretations of law. But, clever lawyers act on
behalf of both sides, so this sword cuts both ways. Still, it's true
that a local German company that sells local beer to a limited geographic
region is not going to get called into a US court just because they happen
to have a website that has an unreleased photo of someone and that website
can be seen in the US. It'd be hard to convince a judge that there's any
real "presence" there. So, let's not get carried away with ourselves:
not every use of any photo is suddenly subject to US laws or courts.
Now, let me stand back and remind you of your job as a photographer:
to cast the widest net to catch as many buyers as possible of your photos.
If you are knowledgeable of (and comply with) US laws in your photo
business, you will not only get more potential US-based buyers of your
imagery (not a small market by any measure), but you'll have a better
reach for your local buyers as well. And that's really what this is
all about.
For completeness, there's the other side of the coin that may surprise
many people. If you took a photo of an American citizen and licensed it to
a magazine in Cuba, where there are no such privacy or publicity laws, the
infringement took place in a jurisdiction where no such protections are
provided, and no claim can be made. The fact that the subject is American
is irrelevant. You can publish naked pictures of Paris Hilton in Cuba and
she can't sue you. (Of course, the Cubans authorities might not take too
kindly to it, but that's a business decision you'll have to make.)
In summary, U.S. laws still apply if you license images to clients that
publish in, or distribute to the U.S., which covers a lot of international
media. Regardless of where you live, or to whom you license photos, your
clients may need to consider U.S. laws, which, in turn, can affect
business decisions you make. So, it's in your interests to understand US
laws.
And yes, this is all covered in my new book on
model releases. And, for what it's worth,
the combination of the low value of the dollar, and some really
great postal rates I've gotten, it's a bargain when you buy it
on
my website.
(NOTE: the shameless bit of self-promotion you just saw was that of a
sudden switheroo to my being the lowly salesman type. I disavow my actions
on this matter, as it was imposed upon me on the advice of my PR rep, who
also happens to be me. But that's a technicality that you can take up with
any one of my vast arsenal of lawyers in waiting.) Labels: dan
heller, legal, model
release, model
releases, stoc
k photography
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