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Model Releases: Why US laws are important to non-US photographers

Tuesday, February 26, 2008

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A common question I get about my book on Model Releases is whether the book applies to non-US photographers. I'm American and I cite many US laws in the book, so it's natural to wonder whether it would apply to non-US readers.

First, if you haven't read it yet, the chapter, Model Release Primer explains that you don't get model releases to protect yourself. Photographers have no liability when it comes to how other people publish their photos. Therefore, learning about model releases is not intended to help you protect yourself against your own laws in the country you reside in. Rather, model releases are there to protect the buyers of your images from being sued for violating publicity laws. When you offer images that other people can publish safely, you make more money. That's why you get model releases.

To better monetize images through the global market of buyers, you need to understand that everyone, even local buyers, may still be subject to US laws. 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. The US is the largest consumer market in the world, and as such, almost all companies large and small have some kind of business relationship in the US. Therefore, if they are going to advertise or market themselves in a way that even touches US territory, US laws will apply.

That's why photographers all over the world need to understand US-based laws on publicity and privacy, which is what model releases are intended to protect against.

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 organizations, 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 few Canadian photographers I've interviewed were aware of. It is here where your photo of a farmer could allow him to file a claim in US courts for the use of his photo if he hadn't released it. (His claim would be against the bank, not you.)

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. (My 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), there's one more critical fact: 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.)

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