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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.
See here for more information.
Or, order a copy now
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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.
First, newspapers buy photos, and their use of the photo is unlikely
to need a release. So, selling a photo (and making a profit doing so)
to a newspaper also does not require a release.
Next, because the law does not require you to have any knowledge of
the buyer or their intended use of a photo, you are always allowed to
sell photos without a release. In short, the buyer may be a newspaper, or
an ad agency, 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 established precedent for this was
Corbis vs. James Brown,
where the judge called the depiction of a photo as being for sale a
"vehicle of information". Here, consent from a subject is not required.
Therefore, one can make photos available for sale in any manner 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 mostly anywhere.
For detailed information, see the article, Model Release Primer.
"Commercial Use" does not trigger the need for a model release.
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. 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. Similarly,
there are non-commercial uses that do portray someone as a supporter
or advocate, which would require a release. Two examples follow:
On the commercial side, there are companies that sell books, magazines,
newspapers and other forms of 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 they may be
promoting an editorial product, it's irrelevant. Promotion is a commercial
activity. Full stop. But again, "commercial use" does not itself trigger
the need for a release.
For example, a highly critical book about Rush Limbaugh
("The Most Dangerous Man in America", by John Wilson)
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, then such a photo
could suggest he advocated the book, although the existence of such a
photo would be unlikely.)
So, the fact that a photo is used as part of a promotion is a red herring.
Photos may be on web pages, in portfolios, and presented for sale, yet
the "advocacy" question is not satisfied simply because photos are
displayed. There has to be more context to imply advocacy.
This is true of non-commercial uses as well. Non-profit companies often
believe they can use photos of people in their materials because they
are implicitly "non-commercial." But again, the determining factor is
whether the person could be perceived as an advocate or sponsor of the
organization.
Speaking of supply chain, 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; he didn't need to know what the buyer was going to use it for,
assuming he was even aware that someone was buying it. Similarly, a
stock photo agency can display the image online, which is how the book
publisher (Thomas Dunn Books) found it.
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.
Posting photos online is just another form of publishing.
Most photographers do not "publish" photos that would require a release
with the one exception where they use images in certain self-promotion
pieces. Naturally, most will think carefully about that and begin to
worry—but worry not. Most images used as part of a piece that promotes
someone as a photographer is almost universally interpreted by the
public as "examples" of the artists' work, not necessarily as advocates
for them. 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.
As for being in the business of selling photos, photographers are
never responsible for how someone else publishes their pictures.
The buyer bears the risk, not photographers or stock agencies.
The basis for this is simple: one can't make the "advocacy assessment"
until the photo is ultimately put to use, which is long after the
licensing transaction took place.
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).
The root of this misunderstanding is complicated. The term "property"
in an actual "property release" refers to two particular forms of
intellectual property: trademarks and copyrights. Examples include
logos, designs and other works. Yes, there are a few buildings' designs
that have been registered as trademarks, but this doesn't mean that photos
of them cannot be published. It only means that the manner in which
such works are depicted cannot cause confusion among the general public
about who "owns" the properties, or other legally complex factors.
It is impossible for a photo of a bottle of Coke to cause the general
public to suddenly think that the Coca Cola company was now owned by a
freelance photographer in Topeka. If the photographer sold the image
to a publisher, and the publisher's use of the image would imply that
it had a unique and special business relationship with Coke, then that
would trigger a trademark infringement claim. But that dispute would be
between the trademark holder and the publisher, not the photographer, nor
the stock agency that sold the image. Furthermore, such an infringement
couldn't possibly happen by merely the photo being printed. Text around
the photo would have to give this impression. And, since the photographer
or anyone selling such a photo cannot know or control how a publisher
uses a photo, they could never be held liable for the infringement.
Like the myth about the tongue's different taste regions, 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 happen to be registered
trademarks. And, they have been infringed upon inappropriately in
the past, but these were cases that have nothing whatsoever to do with
photography. And at the time, news of these suits briefly caused
publishers to shy away from publishing photos of such places unless
photographers could provide property releases for them. Those releases
were not for the buildings, but for the right to use the trademarks.
This was very short-lived, however, because it is impossible for
photographers to obtain "true" property releases for trademarks without
paying enormous sums of money. And even if they had it, the releases
must say how the image is to be used in advance, which photographers
couldn't possibly know unless they were specifically told about it by
the buyer ahead of time.
But, the rumor perpetuated among photographers nonetheless, which over
time, trickled back upstream to new publishers who were never invovled
in the original situations and just repeat the mantra. After all, having
useless property releases causes no harm, so no one has had much
incentive to question it..
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.
But, the owner has to proactively take an action to prevent you from
doing things. It's not that you're prohibited from actions by default.
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.")
Also not that one may not retroactively enforce their restriction. That
is, if you were at a private event, and then later told you were not
allowed to take pictures, it has no affect on your photos or your ability
to sell those images. (Publishers, on the other hand, may need releases
if the nature of the publication would require it. But that doesn't
affect the photographer's liability.)
So, if you're in a bar, or in an amusement park, or touring a winery,
you are allowed to take pictures unless you're told not to while you're
there. And if you do take pictures, you can sell them to any buyer
willing to assume the risk, if any exists.
Sometimes, photographers will often seek permission to shoot pictures
ahead of time. This is not only unnecessary, but invites someone from
stopping them. If you know ahead of time that you will need permission,
that's another story.
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?
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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