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Personal Privacy and Model Releases
Saturday, April 12, 2008
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You're a photographer. A couple hires you to shoot their wedding.
Now what? Who owns that photo? What rights do the individuals (you and the
couple) have to publishing that photo?
Normally, service photographers don't really care about the answers to
these questions, since they tend to focus their energies (and revenue
streams) on simply the hourly rate (or fixed "project" rate) of shooting
pictures for their clients. They shoot, they hand it all over, and move
onto the next client.
But an increasing number of such photographers are looking to sell their
inventory of images as stock photographythe practice of licensing
images to others who publish them in some context: an announcement about the
wedding itself, an article about weddings in general, the cover of Brides
Magazine, or for an advertisement.
Many photographers are aware that, to publish these photos for advertising,
a model release would be required. (The photographer obtains the release
on behalf of the user that publishes the image.
See this article for details.) So, for a buyer to
publish these images, you will have had to obtain a model release from the
couple at the time of the wedding. (Or, you could go back and get it later.)
At the same time, photographers are also aware that model releases are
not required for editorial uses, such as newspapers and magazine stories.
Most of the time, that basic assumption is true. But what if the
wedding couple didn't want their picture published in any way for any
reason? Clearly, they would refuse to sign a model release. But since
editorial publication does not require a model release, are you still
allowed to license photos of this wedding to a newspaper? Do they have
a right to stop you? What if you licensed the photos to the newspaper
anyway? Do they have a claim against you?
At the same time, consider these examples:
You're an equestrian photographer on a "farm call" to photograph a
horse at the owner's stable.
You're an art photographer and you're at an artist's studio to shoot
a few pictures of his latest sculpture that he will send to his agent, who
will then send them to magazines for a press release.
You're a portrait photographer and own a studio at the local mall. A
client comes in to have pictures taken of him so he can distribute them to
potential modeling agencies.
You're a press photographer, and develop a special relationship with
a congressional candidate, who invites you to the family estate to
photograph the clan for a memoir they intend to publish about the personal
tolls that political life can have on a family.
The scenarios I listed above were specifically designed to illustrate a
unique, but not uncommon scenario, where the subject specifically invited
(or hired) the photographer to photograph them so they could use the
photos for their own personal uses. This is not the same as candid photos
taken in public. They are hiring you to take pictures that they could
have taken themselves by putting a camera on a tripod. Their photos for
their own use.
These scenarios illustrate sets of conditions where the subjects have
not necessarily waived their rights to privacy. Without a bit more
information about the intentions of the people whose photos have been
taken, there is an ambiguous state as to whether you are permitted to
license these photos to anyone, even to a newspaper.
Copyrights vs. "Right to Publish"
All photos begin and remain "owned" by whoever took the photo, with
the one exception where a "work-for-hire" contract is signed by the
photographer. Unless such a contract is signed, all photos taken by
whoever presses the shutter butter are "owned" by that person. This is
basic copyright law. That someone else happens to pay the photographer
has nothing to do with the copyright ownership.
However, the "right to publish" is different. If the photo is a picture
of a person, then that right remains with that person, irrespective of
who owns the actual photo (or its copyright). Physical possession has
nothing to do with it either.
Many people are unaware of these subtle nuances. Sadly, photographers are
equally misinformed. But even if they are, it's often a struggle getting
their clients to understand this as well. So there's often a major struggle
between photographers and subjects on who owns the image, what rights
people have to publish them, and so on. It only gets worse when the
photographer's rights permit uses that the subject doesn't like or want.
The purpose of a model release is to establish an understanding between
the parties to avoid these conflicts. And this is where we come full circle:
if the subject doesn't sign a model release, what rights remain with the
photographer to license these photos for editorial purposes, which normally
do not require releases? If the photos were taken in public without the
subject's awareness, there's no question about it: the photographer
can license all he likes to editorial publications without permission from
But if the subject specifically invited the photographer to shoot
the pictures in a context by which there was a "presumed assumption of
privacy," then the photos may not be eligible for publication without
his consent. But it isn't quite black and white, which is where this
To understand this properly, let's review the legal doctrines that
govern two competing interests: that of "personal privacy," and that of
"freedom of the press." We all value privacy, such as sitting in our
own homes. But privacy extends to many aspects of life: the private
profile information we provide on a website, or the things we
search for on the internet, or our health records at the doctor.
At the same time, we value freedom of the press, where people have the
right to information that may be important for people to know, even if
it is not beneficial to the people being reported on. We need to know if
our legal representatives are truthful, if our bosses (or employees) are
acting ethically, or that we can enjoy the freedom to express our opinions.
As you can imagine, not everyone is going to agree on whether any given
"event" is newsworthy, or any given statement is in the public interest.
This is not easy. But generally stated, courts have traditionally
weighed in favor of the doctrine where opinions can be expressed in
publications. This why we can mock politicians on TV and the internet,
make fun of products and services (even using their names and logos),
or report on behaviors and actions that are deemed "newsworthy." In such
cases where individuals are involved, people waive their rights to privacy
if, for example, their photos are takensay, because they got married.
Rather than go into the weeds on this big subject, let's stick to
conditions involving photographs and editorial publications.
Privacy laws can protect people's rights in ways that supersede editorial
newsworthiness for some scenarios. Being in your own home, for example.
A photographer cannot take your picture there without your permission.
It's not the fact that you're on private property, it's the fact that
it is a particular condition in which a person has a right to privacy
over other considerations. We all do things in our own home that would be
embarrassing if photos were published. Being in our underwear is a simple,
'G'-rated example. Your imagination can wander into other MPAA ratings
and see where this is going.
Yes, this right to privacy is pretty powerful, and often surprises and
offends many people who look at things in simple black and white terms.
For example, what if you take a picture of someone killing someone
else in their own home? Surely, this is newsworthy, right? True, but it's
after the fact. If no murder took place, why were you there taking pictures?
The constitutional right to privacy keeps peopleeven the government
(which includes the police)from taking your picture in some situations.
And people have determined a long time ago (with few objections) that
we do not want to give anyone the right to simply monitor us without cause.
It's the "cause" that might provide an exception to the rule. We want to
preserve safety and other matters of public interest, so we give the
police (and other government agencies) the right to penetrate those
privacy laws if it serves the public interest. Here, the police can get
permission from a judge to place surveillance cameras on a property if
they provide evidence to suggest a crime may take place. As you probably
know, credible and incriminating evidence is thrown out of court cases
all the time because police did not get such permission.
Balancing the rights of individuals and that of the public good is a
difficult and messy business.
So, what does all this have to do with a wedding photographer giving
photos to a newspaper? "Privacy." There are some conditions where
people have a right to privacy, and other conditions where people waive
their right to privacy. Sometimes it's black and white, but sometimes,
it's a murkier shade of gray.
As we move forward, however, let's understand that the photos we're
referring to only apply towards people or objects that can be subject
to copyright (like a work of art). If the photo doesn't involve these
things, or if the content of the photo does not compromise one's privacy
or imply facts that the subject does not want to be known, then these
photos are not protected by privacy laws. So, if the photo is a scenic
and generic image, or of a common farm animal, or of a building, these
images are not affected by privacy laws unless the nature of the
photo would imply a fact that would violate a person's privacy. This
should make more sense as the topic evolves.
Limiting the discussion to photographs, we ask the question, "Is the
set of conditions such that you could be photographed?" In one's own
home, one has a right to prevent photography. But what if someone hires
a photographer to come in and take their picture? Do they then waive
their right to privacy? No. But here's where the slippery slope begins.
Here's how you need to think about privacy laws as it pertains to
photography and licensing rights:
Does there exist "a reasonable expectation that one
could be photographed by the general public without the person's
What is the relationship between the photographer and the subject?
How much "orchestration" was necessary in order to capture the photo?
Each of these can steepen that slippery slope where the right to
privacy may or may not supersede freedom of the press. So let's address
The first item is the most important because it lies at that pivotal
dividing line between personal rights and that of the First Amendment
(which affects freedom of the press). The question is, is there a
reasonable expectation that you could be photographed without your
knowledge? When at home, you can expect that your privacy is protected
from such photography. But outside your home, this is the pivotal
Many people think that private property is exempt, assuming that
personal privacy is preserved on private property. That is no such
connection. An amusement park, a bar, a zoo, your swimming club, your golf
course, your churchthese are all private properties in that they are
not government domain, such as public streets or national parks. The
key point is that the general public can come, armed with cameras,
and there is a reasonable expectation that your picture could be taken
by one of these people without your knowledge. Hence, everyone on the
premises has waived certain rights of privacy insofar as their photos
being taken by others, even though the property is "private."
So, again, it's the expectation factor. At home, your "expectation"
is that you will not be photographed. Outside your home, that expectation
cannot be guaranteed.
So, what are reasonable expectations? For example, let's say you're
at a concert where photography is strictly prohibited: signs are everywhere,
and it's printed on a ticket stub. Does this preserve one's "expectation"
that they could be photographed? Not quite. Just because a venue
may say there are prohibitions, doesn't necessarily mean the
expectation goes away. And you certainly never rely on your opinion
that people shouldn't be taking pictures. If the rule is not
enforced, and people are copiously shooting away without intervention,
the expectation that you could be photographed still exists.
If you were photographed dancing in your underwear with a pink bow in your
hair, and this is published in the newspaper, causing you to lose your job
as the CEO of the company that sells only blue bows, you cannot sue the
photographer on the grounds that your privacy was violated. The judge
is going to take into account that everyone was taking pictures, whether
they were allowed to or not. You'll have to answer why you didn't just
leave when you had the chance, or at least wear a blue bow in your hair.
Surely, you should be concerned about your job if it was clear photos
were being taken.
So, private property is inconsequential, as are notices of "no photography,"
because it all comes down to "expectations." Everyone's behaviors, witnessed
or acted upon, are the byproducts of expectations.
When it comes to a photographer and his subject, these expectations get
beyond just the environment, but the relationship. Another way of saying
this is the understanding between the photographer and the subject.
To illustrate, consider the scenarios listed earlier: the wedding
photographer, the equestrian photographer on a farm call, a photographer
shooting an artists' new work, a portrait photographer, or even a press
photographer. In each case, the people being photographed asked the
photographer to do so because they wanted the pictures for their own,
personal uses. Insofar as the photos of the people are involvednot
any other photosthe subject of "privacy" is only applicable if the
understanding is that the images are being taken for the subject's
personal use only. Just because there was a direct invitation to the
photographer by the subject, does not necessarily imply that the subject
has waived his privacy rights. Thus, the photographer's use of any photos
of that person may require consent (in the form of a model
release) for editorial publication.
Why am I being ambiguous about whether the right to privacy may have been
waived or that a release may be required? Because what is still unknown
is the understanding between the photographer and the subject about the use
of these pictures. If the subject specifically says, "I am asking you
to take these pictures and not publish them anywhere," then he has
explicitly preserved his right to privacy for those specific photos. Even
if they are on public property and bystanders can take pictures, that
specific directive by the subject to that one photographer stands.
Now, it's presumed that if the photographer doesn't agree, then the
subject probably won't "pose" or do whatever it is he intended to do
for the photos that were about to be taken. It's also unlikely that
the subject wouldn't actually go out into the public where other
people are not under his control and could take his picture. While I
may be drifting into unlikely scenarios here, the point is to illustrate
that it's the implied understanding between the subject and the
photographer that a judge is going to look for if a dispute arises.
Note that this does not affect copyright statusthe subject is not
suddenly the owner of the photos, nor does the relationship imply a
work-for-hire scenario. This is strictly a matter of privacy, which
affects the rights of the individual to control whether those photos can
be made available to others. Copyright has nothing to do with this.
The understanding between the photographer and the subject is critical
when assessing matters of privacy. As a general matter of logic, if
privacy is a concern, then the subject will likely say something to the
photographer. Clearly, the stronger the concern, the more assertive
the subject will be. For example, he may have the photographer sign an
agreement ahead of time. But this isn't necessarily done, or required.
Even a passive verbal statement is sufficient. This is often the case
between a hired model and a photographer. If the model says not to publish
the photos, then the model has not waived the right to privacy. The more
concerned the model is (or the more professional), the more likely this
will be written. But again, it's not necessarily required. Of course, we
all know that the "verbal" instruction is harder to claim in courtthe
photographer could deny it. But then this is where people bring up emails
and other supporting evidence. Yes, it can get ugly.
It's the general set of circumstances that judges look for to determine
whether there are reasonable expectations of privacy.
What's further interesting is that the strength of legal cases around
these types of disputes have been decided on the weight of another factor
Here, the more involved the photographer and subject are in coordinating
how photos are taken, the less the subject is truly acting on his own
accord, or in a manner that would accurately depict his nature. Therefore,
the less likely it is that he is waving his right to privacy. While this
feels like a huge stretch of the imagination, it will make more sense in
a moment. But first, remember the rule: a subject waives his rights
of privacy if he can be photographed without his knowledge. Clearly,
if the person is unaware he's being photographed, his actions are of on
his own free will, and anyone that witnesses such acts in a public space
is entitled to publish photos of them in an editorial context. But,
if the subject is directed in a controlled situation, he is no longer
acting on his own accordhe's doing what he's told to doso photos of
him may not necessarily be representative of him. Even if he's agreeing
to be photographed, he can still be misrepresented if the photos are
published out of context.
If someone is asked to pose with a can of beer in his hand, and that photo
shows up in the newspaper, and it turns out he's on probation, his parole
officer and others may want to have a few words with him. This is an example
where someone's personal or professional life can be harmed by his photo
being published in a manner he didn't expect. It's not the newspaper's
faultthey might not have known, and they aren't supposed to care
whether a release is signed. Instead, it's the photographer's fault for
having horrible luck. Good press photographers know that they shouldn't pose
subjects in ways that might cause such situations to happen.
Now, understand that this is purely hypothetical, and real-world
situations are more likely to be gray. For example, just because you ask
someone to pose for a picture doesn't necessarily imply a level of
orchestration that would get someone into trouble. You're still safe
if you ask someone to wave, or stand next to a building, or even spend
considerable time with various positioning. Still, you can see that each
of these progressive acts lead into that gray area; the point at which
you cross into the "privacy" zone is rarely clear and has to be evaluated
on a case-by-case basis.
Example for Consideration
With that background, let's pull together all three of the checklist
items, and consider a case that involves them all: you're hired by a
restaurant to photograph the dining room with people eating. Here's a
complicated situation because we have many people involved, a variety
of conditions, and possibly some "direction" by you to the patrons.
First, unlike the restaurant owner, the diners have no relationship to you
at all, so the first question remains the most important: "is there a
reasonable expectation that they could be photographed without their
knowledge?" If you're there taking pictures, chances are you are quite visible,
so there's a reasonable expectation by the diners that they could be
photographed. They also have a chance to leave, or to object.
Assuming they stay, then the clients have waived their privacy rights,
and you can license the photos (without releases) to a publication who
may publish them in an editorial context. Say, in a newspaper reviewing
Next is the question of "orchestration." Are you simply photographing the
room, or are you having people pose for you? Is it a simple shot, or are
you directing a man and a woman (who don't know each other) to clink their
glasses together and gaze into the camera? Are you adjusting the smile?
Fixing hair? The more you get into these actions, the more likely it is
that your orchestration begins to threaten their rights of privacy if
these photos were published without a release, even in editorial contexts.
You haven't violated anything by taking pictures; it's the publication of
them (or the licensing of them to someone else who can publish them) that
could get you into trouble if it turned out that you're asking people to
do more than act naturally. Again, they'd have to be doing something that
genuinely gets them into trouble if those photos somehow misrepresent them,
even if you had no prior knowledge.
Assuming there is no orchestration, and that people were aware that they
were being photographed, you can license these photos for editorial
purposes to any buyer.
Oh, Wait! Had you forgotten that it was the restaurant owner that hired
you? He's the one that wants to use the photos. Is he aware of all these
issues? Probably not at all. But, as the hired photographer, do you have to be
aware of them? Or is the client in trouble? The ultimate question here is
who provided the photos to the publication that printed them?
Most photographers are now thinking, "just have everyone sign
releases." Technically, this is truesigned releases will almost
assuredly remove the risk. But in the real-world, that could cause more
trouble than it's worth. Diners don't want to be bothered with that as
a group, and if there are a lot of them, it may take more time than you
want to deal with. Do you would really only want to do that with people
with whom you've given direction?
Still, it would be a good idea for those to whom you've given direction.
That will also allow the restaurant owner to use the photos for commercial
uses. But, note that model releases are not required from people
who are simply part of a scene, even if they are recognizable, and even if
the use is commercial (advertising or brochures). What triggers the need
for a release in a commercial use is if the people appear to be "advocates
or sponsors." So, if one of the pictures you took is of a couple clinking
their glasses looking directly into the lens, and the picture is clearly
on them, they would have to sign a release for the restaurant
to use their photos. On the other hand, a wide-shot photo of the entire
room with everyone eating at their tables (not looking at the camera),
none of these people would need to sign a release. This applies to both
the commercial and editorial uses by either you or the restaurant owner.
Got all that? Well, we're not quite done yet. There's one more important
factor in the "relationship" section that hasn't yet been brought up.
The photographer asking the subject to participate in a photo shoot.
This is where the roles are reversed from each of the scenarios discussed
so far, where the subject asked the photographer to photograph him.
Let's assume a scenario where you call a farm and ask if you can bring a
group of photographers (perhaps students) to do a photo session of the
owner and his horses? This is a subtle but important difference that
could change the entire landscape of whether releases would be required
for editorial uses.
The first question to ask is, "what is the purpose of those photos?" If
the subject hired the photographer, he knows what the photos
are for, and his expectations about how they are used have been
set. If the pictures were to later show up in the paper, it would be a
dramatic difference to his expectations than if you asked the subject
to photograph him. Here, his expectations of the photos are simply
undefined, and this subtle difference weighs very strongly insofar as
determining whether his privacy rights have been violated. For instance,
he'd have an easier case to make if he could say to the judge, "I hired
the guy to photograph me and my horses so I could have printsimagine
my surprise when they showed up in the paper." This is a stronger case
than if he said, "These guys asked if they could take pictures of me,
and a few weeks later, there I am in the paper." Here, the difference in
the preconceived expectations carries weight as to whether the farmer's
personal privacy has been violated.
Again, individual cass can be argued, but I illustrate the difference here
because one scenario is a stronger case than the other. And when you
factor in other instance-specific details, the pendulum has a tendency to
swing in unexpected directions quite easily.
The final thing to discuss is a matter of "contracts." Some photo
assignments (such as wedding shoot or other major exchange of money
and services) involve contracts. One such contract is called "work-for-hire",
which, by definition of copyright law, means that the photos aren't even
yours in the first place. You have to hand them over to whoever hired
you, and you're done. You have no rights to or legal access to those
photos (unless, of course, the client chooses to let you have them).
Assuming it is not a work-for-hire contract, the client's own use
of the photos are limited to personal use only. I had mentioned in several
of the examples that the clients were going to publish the photos in some
form. Technically, because you own the copyright to the photos, the client
cannot publish them at all without permission from you. Assuming that it
was the client's intention to publish them, we can assume that the
contract specifically stipulated the right to use the pictures for the
stated uses. However, just because the client can use the pictures in the
manner stated, it does not affect your use of the photos insofar as
the model release requirements are concerned. That is, if you performed a
portrait session with a client who had you sign a contract saying that
he's going to provide these photos to a stock agency who will license
them, he has the right to provide them to the agency because it was
written into the contract. You don't, unless you have a model release from
him. Otherwise, you've violated his privacy rights because he came to you
to get his pictures taken.
One might think that if you don't own the photos, then anything that
happens with those photos is not your responsibility. You were merely
a hired hand. That may potentially be true, but you should still be careful
in how you orchestrate people if you don't get a release. The more you
deal with them, the better off you are in having that release. But,
this too has its caveats: if you do not orchestrate anyone in any way,
then having a release could present a real risk.
For example, let's say you took a candid photo of a guy drinking a beer
at a public event. Then you asked him to sign a release. You then license
the photo to the newspaper doing a story on the event. If he was on
parole and wasn't supposed to be drinking, and he gets into trouble
because your photo of him drinking is now in the paper, he's going to
try to sue someone. If you had any exchange with himsuch as your asking
him to sign a releasehis lawyer might try to claim that you orchestrated
the scene and had him sign a release in an attempt to absolve yourself of
responsibility. True, the release would give you the right to license the
picture, and you're probably not going to get into trouble, but on the other
hand, the fact that you talked to the guy in the first place opened you
up to the inquisition. Had you just shot the picture and left it at that,
the guy's lawyer wouldn't have barked up.
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