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Digital Photographer's Guide to Model Releases.
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Introduction
Before we begin, let's test your basic understanding of when a photo
needs to have a model release:
- Does "selling" a photo for a profit require a model release?
- Do I need a release for a photo I took of someone in a public place?
- Should I get a release even if the person in the photo is unrecognizable?
- I'm going exhibit my photos of people at an art fair. Do I need releases?
- What if the person is dead?
- Do I need a release for photos of naked people?
- I have tons of pictures of my ex-girlfriend. Can she sue me if I sold them?
- I own a portrait studio. Do I need clients to sign releases?
- I took a lot of pictures as a hobby, and now I want to sell them.
Do I need releases for all my pictures of people?
- Someone wants to buy my photo of a particular building. Do I need a
property release?
- I was on someone's vineyard and I photographed their grapes. Does the
fact that it's private property trigger the need for a release?
To score your knowledge, give yourself one point for each item you
answered "Yes," and two points for each item you answered "No."
In fact, make it three points. Now, total up all your points. If your
score is above zero, you have a lot to learn about model releases.
Yes, none of these questions have an answer at all. And no, these were
not trick questions. The questions can't be answered because none of
the scenarios indicate a use for the images. And by "use", we're
talking about a form of publication or depiction of a person that would
be affected by two kinds of laws: publicity and privacy laws.
In the first case of privacy laws, courts have ruled that people have
a reasonable expectation of whether (and how) others may observe them
in some conditions, like inside their own homes. If you're at home,
you have the right to not be viewed by anyone. If you're at the park,
a concert, a bar, or even someone else's home, you cannot necessarily
assume that no one there has a camera, or a microphone, or that you're
simply be "observed." This isn't just by the government, but by anyone.
If you're around a bunch of people and you're not at home (or other
special conditions), someone could photograph you. This is what
determines "privacy" in privacy laws.
That's not to say they can do anything they like with the photos they
take; it just means that they can, physically, take pictures.
What people can do with those pictures is governed by publicity laws.
Here, people have rights for how their "likeness" is used by others to
promote ideas, products, other people, or other things. The tricky
keyword here is "promote", which can also be replaced by "advocate" or
"sponsor" or "agree with" and so on. In other words, can the use of the
photo suggest the person (or thing) is tied to someone or something else?
You might think that selling is requires a release because someone's
"likeness" is being used. But, selling is not enough to trigger a
"publicity law" violation. That is, selling doesn't imply that the
person in the photo believes in anything, per se, or that they are
a particular kind of person, or that they "sponsor" an idea, product,
company or religion. The mere act of selling doesn't imply anything
about anyone. For a release to be required, more information is
needed, such as how the photo is used by the buyer. If the buyer
publishes the picture, then we are likely to have that triggering
information, which is where "publicity laws" apply.
A photo used in an advertisement, for example, needs a release because
the person in the photo could be assumed to be a user of a product, or
an advocate for an idea. In such a case a "model release" is the legal
document the publisher has the person sign to give consent to their
photo being used in that manner.
On the other hand, many kinds of photo uses are protected by free speech
(that doesn't require a release). If you sold the same photo to a
newspaper doing a story on that same person for having just opened a new
store in the local mall—or having been accused to burning down the
store—that form of publication wouldn't require a release: it's news.
In both examples, a photo has been sold to different buyers for different
reasons. A release is required for one use, but not in another use. So,
it's not the "selling" that causes the need for a release; it's how
the photo is used.
You may still be confused, and that's OK. I am by no means being "complete"
here. I'm just setting the stage to help get your mental compass
pointing in the right directions so I can dive into details later.
For now, you at least know enough to relax about several common myths:
"Selling" doesn't require a release, nor does it matter what the photo
is of that requires a release. It could be a recognizable person,
a building, a famous celebrity or landmark, a piece of art, someone's
home or property, their dog, or anything at all. None of these are,
by themselves, triggers for requiring a model release. If you have
already shot pictures, or you are about to shoot them, and you're
concerned about whether you need a release for the pictures you shoot,
the answer starts out no. It's only when the photo may be used in
some sort of publication, or other conditions to be discussed, then the
question can be examined.
Who is responsible for a photo being released?
As implied above, the need for a release may be necessary, depending on
how that buyer may use them. But this brings up the second most commonly
perpetuated fear and myth about photography: that the photographer can
get sued if the photo needed a release and the photographer didn't have one.
We know this is a myth because it's not the photographer that publishes
his photos—the buyer does. And the photographer has no control over
what the buyer does with the photo once it's out of his hands. It's also
not possible for a photographer to know or to guarantee that a release
would be required. Publishing a photo without a release assumes some
degree of risk. Even photos that don't need releases could be legally
pursued by photo subjects just to try to win money. There's always
risk. The question is, who assumes the risk? The answer is: whoever
puts the photo into publication. The photographer is not (and cannot
be) in a position to assume the responsibility for how someone else
publishes his photos.
Since taking pictures doesn't require a release, nor does selling or
buying photos, why do photographers get releases then? The answer is
alarmingly simple: to sell them. Photographers get releases because
they want to sell the pictures to buyers who may need the photos released
for particular kinds of publications. Since the photographer happens to
be taking the picture, and since they want to sell that picture later,
it makes sense to ask the subject to sign a release. In short, you're
just making life easier (and safer) for your clients, which helps your
business.
How did it become a myth that photographers had to get releases?
It's a matter of advice being passed on—like the game of telephone—
where the real message got lost in translation. Buyers told photographers,
"we can't buy your images unless you have releases," which photographers
passed onto one another as, "you have to get releases to sell your photos."
Ok, let's review basics:
- You never need releases to take pictures.
- You don't need releases to buy or sell pictures.
(Also see Corbis example later.)
- How a person or thing is "portrayed" is what
determines whether a release is required.
- Whoever publishes the photo may need a model release.
- The photographer is usually not the publisher, but gets the release
anyway, which he then "assigns" to the buyer upon sale or license of
the image.
- The photographer is not culpable for unreleased images that are
published by someone else.
- Photographers get releases because it makes photos easier to sell
to publishers, because publishers need releases.
No photographer has ever been sued and found by a court to be liable
for how someone else published a photo of someone. It's always the
publisher that gets sued. But that's not to say that photographers don't
assume some risk. So, let's take a look at that.
I begin by comparing photography with of how the law works with guns:
if someone shoots his friend in the face with a gun, who is responsible?
The guy who used the gun? Or the company that made the gun? As you
probably know, the law starts with the person who used the gun. If the
guy who got shot is going to sue someone, he sues his one-time friend.
(We're assuming, for the sake of argument, that the two are no longer
friends at this point.) Same thing with photos: the guy who used
the photo and caused harm to another person is the guy responsible. The
guy who made the photo has nothing to do with it. He can't control
how the other guy used it. That's why photographers usually bear no
responsibility for whether or not a photo has a release.
Now, that's not to say that the gun manufacturer or the photographer
might assume some risk. For example, say the guy who used the gun said,
"the safety catch was on, but the gun fired anyway." Here, he's trying
to show that the gun manufacturer produced a defective product and can
be held responsible.
Alternatively, if the ad from the gun manufacturer said, "Go ahead! Shoot
your friend in the face! It won't hurt him!" The the company could get into
a lot of trouble. This is called an Estoppel Based on Fact. That is,
if someone asserts a statement to someone else who relies on this
statement to his detriment (that is, he shot his friend in the face
and it actually did hurt him, thereby getting him sued for it), the
the first party can be held responsible. Here, the gun manufacturer.
Of course, the gun manufacturer would never say such a thing. But
photographers are not as judicious in their assertions of fact.
Though it's normally the party that publishes the photo that is
responsible for using it properly, if the photographer asserts his
opinion as to whether a release is (or is not) required for any given
photo, he is putting himself into legal jeopardy if the publisher ends
up taking his word for it and gets into trouble.
The best thing to do is not say anything that would give the publisher
reason to "rely" on your statement. Even the best efforts to be conservative
in your assessments can work against you. Photographers often get themselves
into trouble because they are both uninformed on such topics, and because
they feel that if they don't render an opinion, the client might not buy
the photo.
Most photographers assume that the conservative assumption is always the
safest—that if you have a release, you're always protected. Therefore,
they usually advise other photographers, "It never hurts to ask for a
release." This is not always true for many reasons. One reason is that,
by asking for a release, the nature of the photo can transform from that
of a "candid" shot (where he's unaware of your taking his photo) to an
"orchestrated" shot, one in which the subject is taking direction from you
(how to pose, look, etc.). As you edge ever closer over the line where
privacy laws kick in, you could inadvertently represent the subject in
a way that he would not approve...and wouldn't know it till much later
after the photo is published. If it were a candid shot, there's one set
of conditions that could protect you from his claims, but if it's an
"orchestrated" shot, then the law presumes an entirely different set
of conditions. If you have him sign a release that doesn't reflect
orchestrated nature of the photo shoot, then it may not protect
future uses of the photo that your licensees may use, thereby getting
both you and your client into trouble. (Think of licensing one of these
photos to a hospital producing a brochure seeking volunteers for a study
who are HIV-positive.)
For a longer discussion on this, see
this article.
Another peril to always taking the conservative approach is that case
of Estopple Based on Fact, as discussed above.
Let's use an example: say you were on a cruise to Alaska, and you
photographed a person looking at a whale making a huge lunge out of
the ocean. A non-profit organization sees this great photo and wants to
use it for a public service announcement advocating their campaign to
"Save the Whales." Does the photo need to have a model release for this
use? Do you know for sure? It's a hard question to answer, and people
weigh in differently on whether a release would be required. But you want
to be conservative and you say, "it never hurts to ask for a release."
So you go to the guy and ask him to sign a boiler-plate model release
you got from the internet.
Years later, the non-profit produces ads with this guy all over them,
and it turns out he's a lobbyist for a tribe of native Alaskans who
kill whales as part of their rituals. They get upset with the guy and
fire him, causing him to lose all his income. So, he files a claim
against the non-profit, claiming that the release he signed wasn't broad
enough to include the kinds of representations the company implied with
the photo of him. Now, you're stuck because you now realize you know
zilch about the law, and the boiler-plate model release you copied from
the internet was a piece of junk, and now you're on the hook because the
company has implicated you because they relied on your statement that
a release was necessary and that yours would suffice. But, now they've
suffered detrimental consequences. And so shall you.
Had you left well enough alone from the outset—that you made no claim
or representation that the company needed a release for the photo—then
the company would have had a representative contact the man and had him
sign their release. Even though that might not really have saved them,
you wouldn't be on the hook.
Also note this important fact: it still hasn't yet been established
that the photo needed a release. That's what the lawsuit is all about.
Just because the man claimed the release was insufficient doesn't mean
that a judge will agree with him. Always remember: just because the
person filed a suit doesn't mean he's right, or that he'll win. In fact,
it may turn out that the use doesn't need a release, which would make the
case moot. But none of this is the point. The point is, well, two points:
You are not responsible for how others use photos they license from you.
You don't want to be called into any of this in the first place.
The lesson: you can speculate all you like as to whether a photo needs
to be released, and it's wise to be as informed as possible, but your
entire objective is to absolve yourself of responsibility. And the best
way to do that is to assume nothing and don't "say" anything.
Fortunately, you start out in life absolved of responsibility. That's right,
unless you actually do or say something, the law doesn't even look at
you in the case of a dispute. It's only when you open your mouth and
say something do you begin to slide down the hill. So the best thing
you can do is say nothing. Or, better yet, specifically say that you
are saying nothing about whether any given use does or does not need a
release. If you say anything other than "I don't know" (to the question
of whether a given use requires a release), you are rendering an opinion
that the licensee can later use against you.
Why are you safe "by default?" Because, as I mentioned earlier,
photographers are not in ultimate control (or even in full knowledge)
of how their images are used once they leave their hands. If you
license a photo to someone for a particular use, and the buyer ends up
using it only slightly differently than how it was represented to you,
then you can't be held responsible. No matter how close to the "actual,
disclosed and formally stated use" you can get, nothing suddenly transfers
responsibility to the photographer (or whoever sells the image) because
of how the buyer published the image.
In short, the law does not require the photographer to defend against
the use or misuse of a photo that another party may do with it. And the
best way to make this fact unambiguous to the licensee is by disclosing
whether the photo is released, and that you make no claims of its
usability in publication. So you state, "I make no representations
as to whether any specific use of the image requires a release. You
(the licensee) assume that responsibility. I can only say that I have
(or don't have) a release that is transferable to you."
Licensee's Responsibility
As noted, it is always the case that if the subject in a photo wants to
file a legal claim against someone, the first stop along the way
is the publisher of the image. If anyone ever goes to a photographer
first, the photographer's one and only response is, "I'm not the one
to talk to; have your lawyer go to the publisher first." If they press
the issue, "well, how did they get it?" The response is similarly
stern: "All your questions will be answered by going through the proper
channels. Talk to the publisher." If they still persist, they are attempting
to break you down in some way for strategic purposes (for what ends, it's
not clear). Some people are just misinformed, others may have a goal.
Perhaps they know they don't have a case and are hoping you'd naively
settle because you don't want to be sued. Perhaps they want to get
you on their side as they pursue the publisher. Suffice to say, if this
is happening, someone is "angry" and you're the easy target. (This is
another reason why photographers perpetuate the myth about "having to
get model releases.")
In any event, it is the publisher's responsibility to demonstrate two
things: that they acquired the image legally (presumably from you),
and that they are in compliance with the terms of how the image was
used. Of course, all of this is predicted on the assumption that a
release was actually required in the first place. If it wasn't, then
lawyers between the parties will likely resolve this quietly on their own.
If a release is required, then let's follow this thread of questions:
- Did the user acquire the image legally?
- Did the photographer represent the image properly?
- Did the photographer inform the user of the release status?
- Did the user understand the release status of the image?
The first question is a no-brainer and doesn't need discussion.
As for representation, consider a photographer that advertised his
own website using banner ads on other websites with the phrase, "For
a limited time, use any image for free for any use." Someone picking
up those images may go ahead and use them in a way that would require
a release. So here we have an example where a photo is out there, the
photographer gave broad implicit permission to use it, and a publisher
picked up on it. If the subject of the photo decided to sue the company
that used it in an ad, the company would try to bring the photographer
into it by citing his blanket statement of use.
Here, the judge has a decision to make: will he see the photographer as
naive, and the publisher as sophisticated? If so, he'll slap the publisher
for believing a dubious claim by a naive photographer. On the other hand,
if the judge sees that the photographer as a sophisticated businessman
with an ongoing business licensing photos, he would deem his statement as
a negligent misrepresentation of the usability of his photos. (There have
been some now-extinct stock agencies that have used this very technique.)
Now, let's consider possible answers to the other questions and discuss them.
"Did the photographer inform the user of the release status of the image?"
Possible answers:
The photographer disclosed to the user that the image wasn't released.
If the user didn't think a release was necessary, he's still responsible
because it's the "act of using it" that matters. In other words, whether
it was a misunderstanding of the law, or an intentional violation, it's
his fault. So long as the photographer notified the user that he has
no release for the photo, it's entirely the responsibility of the user
to understand the limitations of the photo's use.
The photographer had a release, but the terms of that release aren't precise enough.
Here, the hypothesis is that a release exists, but its terms may be
too narrow to be used in the manner in question. For example, say the
release said, "the subject permits the use of the image in advertising
and promotion of programs to protect endangered species." Here, the
"Save the Whales" campaign is broad and may include non-endangered species.
Did a violation occur?. We don't know, and until a ruling is established,
it remains unknown. But the question at hand is, "who is ultimately
responsible for knowing?" While the photographer can certainly
speculate as to whether the publisher's intended use would require
a release, it's not his opinion that matters. Again, the publisher
is responsible—they're supposed to know whether the release covers
their intended use, or to take necessary precautions to assure they're
safe. (In reality, most publishers not only do that, but they over-protect
themselves, as we'll discuss later.)
If the photographer said the release existed, but did not disclose the release
Here are some ways the photographer could find himself in some warm
water: the possibility that the photographer hampered attempts by the
publisher to retrieve the release. Remember, again, that the publisher
is considered ultimately responsible for knowing what they're doing,
so it is incumbent upon them to make (legal term here) "best efforts to
assure legal compliance." Sometimes, you may hear the term "reasonable
efforts." Here, the publisher would have to convince the judge that they
made (what the judge believes to be) sufficient attempts at getting a
copy of the release, but they were rebuffed. For example, they could claim
that photographer said, "yes, I have a release, and I'll send you a copy
of it," but failed to do so. The judge could reply, "then you shouldn't
have taken the risk; that's your fault." But maybe it was one of hundreds
of photos obtained by the photographer, and the releases were provided
for all the other photos. The publisher could claim that this one was
simply overlooked and that there was a reasonable assumption that the
photographer was telling the truth about this one. This is where the
term "reasonable efforts" differentiates from "best efforts." In the
scenario I described, a reasonable effort was made because "reasonable
assumptions" were made by the fact that 9 out of 10 releases were
provided, and they were in order. However, if the judge wanted to use
the "best efforts" definition for this particular case (if the nature
of the subject suggested that someone could be seriously harmed if the
photo were published without permission), then much more punitive damages
could be awarded to the plaintiff. And this might also implicate the
photographer even more. This all revolves around the hypothetical case where
the photographer actually hampered the publisher's efforts to get the
release, or that he made misrepresentations that the publisher couldn't
have seen. So again, if the photographer disclosed the true status of a
photo's release, then none of this would apply.
If the photographer said the release existed, but didn't even have one.
Let's not dismiss a very obvious possibility that the photographer lied.
With the advent of many microstock photo sites and other agencies
accepting millions of images from millions of people, the lure of easy
money can find many people submitting images with claims that they have
model releases when, in fact, they don't. Because of the rarity in which
real lawsuits happen due to unreleased photos, it's not a stretch to
envision some people forging what appear to be legitimate releases knowing
that there's little risk. Here, the photographer is clearly the
liable party legally. And yet, even that might not get the publisher
entirely off the hook. Though the judge may apply different standards
depending on the circumstances of the case, he usually leans more on
the publisher than the photographer.
Another sort of scenario may also arise: say the publisher coerced the
photographer. Suppose the publisher got the image from someone's personal
website, where it's clear that the person isn't a pro photographer or has
any awareness of such issues. If the publisher said, "if this person
told you you could take his picture, you are allowed to license it to
us. Are you sure it's ok?" Clearly, this is wrong advice, but the guy
may simply not know, in which case, the judge would look at that and
see mal-intent on the part of the publisher.
And that's what it all comes down to: intent. Circumstances are
important, but in the end, the judge looks at intent by all parties
when making rulings. Where the photographer or the publisher was acting
maliciously, it trumps most other factors. However, this and other acts
of fraud are obviously exceptions to typical (ethical) behavior. For
the duration of this article, we're assuming people are not acting
fraudulently.
As evidenced by the above examples, there are many possibilities that
could shift the ultimate liability from one party to the other. In
a lawsuit, the judge's job is to unravel it all. But in the end,
the party who puts the image into publication carries the liability,
so it's their responsibility to know (and to enforce, if necessary)
whether the image is properly released for that usage. The only time
the photographer could be held responsible is if it can be shown that he
willfully misled or covered up information from the publisher that could
have prevented the act from taking place. Because the photographer's
liability is so limited, and because his responsibility is so narrow,
the best thing for photographers to do is to simply disclose.
Modus Operandi
This Latin phrase means "normal operating procedure," and for
photographers, their day-to-day operations are often so routine and
repetitive, that they become so second nature, that they are often
overlooked over time. This is why it's important to set things in motion
correctly from the beginning. This, not so much for the legal protections,
since liabilities are already pretty limited. It's more a matter of
being efficient with time and resources. So, the goal should be for you
to optimize your time and resources to the necessary extent that you
protect yourself and to generate business. Coming up with such a
unique balance is the hard part.
For example, many photographers assume they should license no
image that is not released. First, that's a bad business decision
because there are infinite numbers of opportunities to sell images in
situations or conditions that don't require a release. So, it should
be part of your modus operandi to shoot as much as you can, simply
because the more content you have, the more business opportunities
you can yield. On the other hand, there is value to having photos
released, because that opens up licensing opportunities beyond the
editorial market, which also expands your business. So, you should
get releases when you can. Needless to say, it's easier to get a
signed release at the moment you take a picture than it is to hunt
down the person later.
That said, "when you can" is not an easy assessment to make either.
Don't just assume you need to go get a release just because you took a
picture of someone. It's a time-consuming process to be constantly asking
people to sign releases, which can interrupt the photo process for
many. Choosing to take a time-out just to get a release needs to be
weighed against the commercial potential that the image has. Pragmatically
speaking, this is actually much rarer than one thinks—selling pictures
of recognizable people can be quite profitable, but typically involves
a business infrastructure that penetrates a relatively narrow industry
segment of higher-end advertising clients. To those who don't think
it's costly in time and resources to bother getting releases in public
stock photo grab shooting, you're not shooting nearly often enough,
or fast enough. No question, there's a social aspect to it that many
people enjoy. But that's a lifestyle argument, not a business case.
So long as you understand the difference, you're fine.
Also, you should remember the perils of getting so involved with the
photo subject that the shoot becomes less candid and more "orchestrated."
Again, see
this article for additional discussion.
When an opportunity comes up for you to license an image to someone,
it doesn't matter whether you have a release, it matters that you
inform the client. So, your "modus operandi" is quite simple:
"Whenever licensing a photograph of a recognizable person, disclose
whether you have a release from the subject."
As long as you fully disclose what you have, you are not liable for how
the client may use the image.
What You Need to Know, If Anything
At this point, you may be thinking, "What if they're going to use it in
an ad, and I told them the image isn't released? Aren't I responsible
for allowing an image to be used in a manner that requires a release?"
Great question, and that alludes to my statement earlier, when I cited the
case where the photographer may be complicit by neglecting to stop a crime
from being committed. But, it's rarely going to be as black and white as
that. There are far more cases where you're going to be wrong in your
assessment about whether releases are required, so you don't want to
(nor would be expected to) adopt an overly defensive position. Because
legal liabilities often come down to intent, a judge is going to look
at your normal business practices—your modus operandi—and determine
whether you're doing anything out of the ordinary. The business reality
is that you never want to engage in legal speculation (or discussion
with a client) on subjects that you are not necessarily qualified
to speak authoritatively. The usability of any given photo is a
legal question, and every publisher needs to have their own legal
representatives advise them on these decisions. If you begin to render
an opinion on the matter, regardless of how clear-cut it may appear to
you, you open yourself up to Estopple of Fact, and your words may
come back to haunt you. This is not a question of "ethics" or even
legality—it's a business operations rule that you do not advise others
on how to run their businesses.
Because the thrust of this article has been that you are not responsible
for how an image is used (that the publisher is), you could extrapolate that
you technically don't really need to know any of the nitty-gritty details
of whether any given use of an image may require a release at all. In fact,
you could hypothetically just go on your merry way without ever knowing
anything about the legality of image uses. (In fact, since most photographers
are uninformed about these issues, they almost already do go on their
merry ways without ever knowing anything about the legality of image uses.)
That said, the advantage of knowing when releases are required is if you
are building a business selling images to the commercial market. And here,
this isn't to protect yourself, it's so you have a better understanding of
how to draft various kinds of releases for various uses. This is how you
capitalize on business opportunities ahead of other photographers. Since
different uses may require different terms within the release's language,
you may wish to familiarize yourself with the varying conditions in
which releases may be required so as to help in your marketing efforts.
(For that discussion, see Model Releases. But don't leave this chapter yet.)
The Indemnity Clause
Regardless of how well informed you are on the subject of model
releases, everyone's opinions still vary on whether any given use
requires a release. It's sort of like in baseball, whether a batter's
"swing" is a strike: it's nothing until the umpire calls it. For model
releases, no one's right until a judge rules on it. Therefore, it's
not wise to assume your understanding of anything is correct for any
given licensing deal. Similarly, you shouldn't necessarily assume your
(potential) client's interpretation is right either. What you do want
to do is cover yourself in the event your client's use of the image gets
them into trouble. (Yes, if they get into trouble, people are going
to be asking you questions about what you disclosed to them.)
As mentioned repeatedly, your first line of defense is: inform
the client of whether you have a release, and if necessary (or if they
ask), what that release says. If they screw up from there, or are sued
inappropriately by an unscrupulous third party, they're on their own.
It should come as no surprise that publishers already know this.
In fact, they are one step ahead of you, which is why some companies
present you with their own license agreement to sign when they buy
an image from you. In it, there's a section titled, Indemnity, also
known as the "Indemnity Clause." This section usually says something
like, "you warrant that the photo is free and clear of any restrictions,
and that you carry the responsibility if it isn't." Of course, the real
wording is usually much longer and uses fancy legalese type language,
but that's the gist of it. Here, if the subject of a photo were to make
a legal claim against the publisher, the publisher will then come to you
and say, "You have to protect us in this lawsuit." This translates to
"you pay our legal bills and any damages that may come from a lawsuit,
regardless of the circumstances."
While that sounds really scary and that you could be facing a huge legal
and financial burden, there are two things to keep in mind. First,
this provision only applies if you didn't disclose whether you had a
model release or its contents. Unless you committed fraud and lied, your
liability is already limited, regardless of what the indemnity clause
says you'll do. Since you did nothing wrong, and you cannot agree to
assume the liability of another party, simply because you have no
control over what they do, you cannot be required to protect them
from what might potentially be a frivolous suit. It'd be like buying a
used car from someone, and having them sign an agreement that they assume
your liability if you ever get caught speeding. Even if they signed it,
it's an unenforceable clause in the contract because the law protects people
from signing away their own rights in some cases, and this is one of them.
But for a photo, you did exactly what you said you'd do: warrant that the
image is released. As long as it is, that's the extent of your liability.
On the other hand, if you were a large stock photo agency, you probably
have a large legal team, and that's why these indemnity clauses are
there: to make sure stock companies are held to account for the content
they get from their photographers. Thus, the standard procedure taken
by most companies who license images from stock agencies is to have them
sign these indemnity clauses. It's much different for an agency to warrant
their products than it is for a single photographer.
So, if you're presented with such an agreement, understand that you're
just being tied up in a higher-level of legal wrangling of other parties,
and that you don't need to worry so much.
Still, it's interesting to know this, because if you ever provide stock
photo agencies with your images for them to sell, they'll want to get
assurances of the same things! However, some agencies go too far in
this concern and require releases for all photos submitted to them, even
though they (and you) know that not all uses require releases. They want
to minimize their risk of being wrapped up in a lawsuit, but there is
currently only one case where such a concern ever came to the fore—and
the agency won. The case is
Corbis vs. James Brown.
The estate of James Brown sued Corbis for selling unreleased photos
of him to licensees that used the pictures in commercial ways. The
uses of the photos required a release, but the question is whether
Corbis was permitted to sell such unreleased photos as well.
The trial court held that Corbis's action as a stock photo agency does
not require a model release, since the site's use of the photos is
merely a "vehicle of information", therefore being noncommercial
and therefore Brown has no actionable right of publicity either
under common law or the Publicity Act. It's legal to sell unreleased
photos to others to use, and it's incumbent on them to obtain permission
before use (if such use requires permission).
That some agencies won't accept unreleased photos from photographers
is unfortunate because unreleased images have a lot of licensing
potential in editorial uses. (Another reason why it's good to sell
images on your own, independent of agencies.)
Since many large media companies have a lot more money than people like
you, chances are that if a company is sued for how it used an image
that it obtained from you, your involvement will be minimal. The lawyers
filing the suit are going to ignore the company's attempt to bring you
into the picture for long. You will be called to give a deposition
about what you disclosed to the publisher about the photo and its
release status, but short of that, the opposing lawyers are going to
focus all their attention directly on where the money is: the publisher.
They may make many allegations (perhaps some without merit) about how the
publisher used the image in inappropriate ways that supersede whatever
may be in the model release. And if a release doesn't even exist,
they will claim the publisher was negligent in determining this fact,
and claim even more money from them. So, this process is going to
require the time and attention of the publisher's lawyers, which will
almost certainly end in a financial settlement that won't involve you.
The Reverse-indemnity Clause
There may be times when you need to protect yourself a little more than
what is otherwise already in your favor. This would happen if you
genuinely feel there may be a risk to how the client is handling himself
legally. For example, say you have a photo of a woman in a bikini,
complete with a broadly worded (and signed) model release. You have
an opportunity to license this photo to an ad agency that wants to use it
in a public health campaign. You happen to know that the campaign is
for AIDS awareness, which is a sensitive subject to be sure, especially
for professional models who depend on their images to be associated with
(or not associated with) certain types of industries. Sure, the photo
is released, but you're concerned that the woman might still have an
objection because the stigma of her image being associated with AIDS may
hurt her modeling career. Release or not, you feel that the client is
underestimating their own risk of being sued. Here is where you may need
added protection because you don't want to be wrapped up in a conflict
that you may feel is very likely to occur.
How do you bolster your exemption from liability more than what is already
afforded you by default? You can do it using the same method they used:
the indemnity clause. That is, you have them sign an agreement that
acknowledges what you told them about what you have (or don't have).
At face value, this seems like a good idea. Problem is, companies are
unlikely to change their existing agreement, especially in a way
that has them assuming even more liability than what they already have.
You can introduce your own contract that has this clause, but they aren't
going to sign your agreement if they already presented you with their
agreement.
For these reasons, I often don't even bother trying to negotiate
reciprocal indemnity language into the license agreement; I simply include
a statement reiterating the limits of my liabilities to how the licensee
may be using the image, including a statement of whether the image in
question is released. I put this statement in both my price quotes
and in my final invoices, both of which act as legal documents. These
are often overlooked by a company's legal department because such
paperwork goes through accounting, not legal. The notification is there,
and if a legal problem ever arises, there is a strong case to show that
they have been duly notified of the release status.
Those photographers that use their own license agreements can add their
own indemnity clause. However, this gets into the more "involved" topic
of contract analysis, which is beyond the scope of this discussion.
In general, I caution photographers who have their own license agreements
to try to avoid being too verbose in its content. The more legal
language you add to an agreement, the more it can be construed that you
are waiving your existing rights (which are very strong and pervasive),
and replacing them with those spelled out in your agreement. You don't
want to rewrite or restate the laws that already protect you, so be
careful in this area.
Self-Publishing
As helpful as this discussion may have been, the huge elephant in the
middle of the room is what is defined as "publishing." For purposes of
whether model releases are required, the kinds of publishing that
matter are those that involve a certain degree of distribution. This
differentiates from personal use, one in which a release is never required.
For example, say you went on vacation to San Francisco and took photos
of everything from the Golden Gate Bridge to tourists having fun at
Pier 39. When you get back, you want to share your pictures with your
friends and family by making a book of those pictures, complete with
a hard-cover binding and high-end glossy paper, much like you'd see in
a retail book store. This personal use is not a form of publishing that
requires a release because the scope of people you are sending the book to
is limited. You could even make all sorts of slanderous statements about
the people you took pictures of, or reference products, properties,
trademarks, and logos, all without risk of liability. Why? Because it
is considered personal use. You could even make the book available in a
print-on-demand form by any number of online printing companies, where
your friends and family would order their own copies (rather than you
spending the money to send it to them), and the book would still not be
considered a form of publishing that requires the photos to have releases.
But, what if your friends start telling their friends? And their
friends tell their friends? At some point along this spectrum,
you cross into the realm of "distribution"—the kind that requires
consent (a release). There's no simple line; it's a slow, gradual one.
In fact, there was a case where The Black Mustang Club—a private
group of car owners—wanted to put together a calendar featuring
member's cars and print it through Cafe Press, but an attorney from Ford
nixed the project, stating that the calendar pics and 'anything with one
of (member's) cars in it infringes on Ford's trademarks which include
the use of images of their vehicles.' Now, reading the popular press
on the subject (namely, that of photo newsgroups), you'd think that
it was illegal to take pictures of your own car. No, that's not the
case. There was nothing wrong with anything about this project until
it got to the point where the poster had become so popular, that the
people buying it so outnumbered the members of the club itself, that
it was clearly a form of public distribution. And because it was,
buyers had assumed that the poster was a product of (and/or advocated
or sanctioned by) Ford. It was for this reason only that Ford forced
them to stop selling the poster. And it was the use of the logo that
gave people such an impression.
Coming full circle, there are two ends of the spectrum: on one side,
the use of the logo is not an infringement if used for personal projects.
On the other end, the mass publication of the poster is "distribution."
Somewhere along the way in the middle is where the line was crossed.
Many people find themselves in similar situations: they sell personal
works of art, or provide interesting photo services or projects that
may involve trademarked properties, or faces of recognizable people.
Do these uses require releases? True, it's the "use" that matters, but
not just by itself. It's the nature of the distribution that does.
Everyone will weigh in differently on just where that line is crossed;
relying on others' opinions is often more wrong than right. The best
thing to do is understand the subject objectively and make your own
decisions.
Separately, there's the question of "publicizing", which can take forms
that don't fit into the above criteria. If you make a bunch of fliers
that contain a picture of your ex-boyfriend and post them on trees
around town, saying, "This man is a lying drunk," you're not "publishing"
anything, but you are publicizing. You can be liable for slander or
defamation of character, even if you had the most broadly written model
release, if this was shown to cause harm, such as his getting fired from
his job. Of course, this also assumes he doesn't publicize this himself.
If he's on public record saying that he's a drunk, then you are free
to quote him.
When it comes to displaying images in these ways, the laws that apply
here are not commercial in nature, but that of civil liberties. In general,
the question to ask is whether you are portraying someone in a negative
manner that a reasonable person might find offensive. Did you break the
law in obtaining the images, like planting a hidden camera in their house,
or using a telephoto lens to do the same? Is the photo slanderous, or
suggests an untruth in a way that harms their personal or professional
reputation?
And then there's the question of photos displayed on your website.
Here, the question is both easy and complicated. The easy part is
for photographers who post photos on websites for the purpose of
selling/licensing of images. This is not a form of publication that
requires model releases. The courts call this a "vehicle of information,"
and has been established by the Illinois Appellate Court in
this document.
(This is discussed in more detail in Model Releases.)
For purposes of this discussion, we assume that the way photographers
typically use images are generally not violating people's civil rights,
or break any civil liberties laws. In that case, what we have left over
are uses that are not considered "publishing," so the rules of when
a model release may come in don't apply. It doesn't mean that someone
can't complain, and you'd have to deal with that. In fact, if you're a
wedding photographer, you don't need to have model releases for people
you have shot in previous weddings to display them on your website to
illustrate the work you do. However, if someone objects, it's probably
in your best interests not to use the image(s) anyway, because your
work is largely based on your reputation in the community. The lesson
here is that "being right" may not translate to good business sense.
You have to think about what's good for business first, even if the
law is on your side.
There are occasions where photographers really do double as publishers.
In this case, one has to assume the same liabilities as any other publisher,
in which case, know your business. It should be noted, however, that most
photographers who double as publishers do so by having separate legal
entities (companies) where they separate each function from the other.
The "publishing" company does one set of things, and may license images
from the photographer separately, even though they are the same person.
Summary
So, putting it all together, let's review the basics:
- You don't need a release just because you take pictures.
- Releases may be necessary for those who publish photos.
- Unless a photo is put to use, no release is necessary.
- It is not your responsibility to know whether a release is necessary.
- It is your responsibility to disclose whether you have a release for
a photo you may be providing to someone who wants to buy it.
- Just because you may profit from the sale of picture, it does not
automatically trigger the need for a release.
- If someone refuses to sign a release, it does not mean that you
can not sell or license the photo to someone else to use in a
publication, provided that such use does not require a release.
The bottom line is one that I've repeated many times here: if you are
honest about whether an image has a release, and the client has been
notified of this, then you cannot be held responsible for anything the
client does with that picture, including using it in an ad or any other
form that would require a release. You have no control over what they
do, and therefore can't be held accountable for their actions.
The purpose of getting a model release signed is not so much to protect
yourself, but it's to generate more business opportunities with that image.
Publishers like licensing released photos over unreleased photos. While
unreleased photos have a more limited audience, it's not substantially
so. There is still a large market for photos of people to be used in
editorial contexts, so it is unwise to only license images that have
been released.
It should be emphasized that different publishers vary in their own
assessment of any given use, so don't extrapolate what one person thinks
as legally "necessary" or "correct" about whether a release is necessary
to another. In the end, it shouldn't affect your business decisions.
Rather, it could affect your marketing decisions—whom you market to may
be more attracted to released images, and vice-versa. Further, do not
assume that what a client does represents a de-facto standard throughout
the industry. Lastly, you may entirely disagree with the publisher
on their interpretation of whether a release is required, but again, this
isn't your job. All these fall into the reality that photo buyers'
rationale for requiring a release is not necessarily based on the law.
It may be just a reflection of their own risk assessment—they don't
want to be sued at all, and it's safer when using only released images.
Do not assume you can't shoot a picture, or even sell it, if you don't
have a release. The only times you are not allowed to shoot (and therefore
unable to sell the image under any circumstance) is when you have signed
a contract saying you wouldn't (some private properties have this).
Acquiring the most content as possible is critical to building a viable
stock photography business. Get releases when you can, because this
makes life easier later. But if you can't, don't let this slow you down.
There's no question that your best opportunities arise when you have
signed releases for pictures of people. But, since that's not always
possible, it's short-sighted to be too conservative and not shoot, or even
avoid displaying, unreleased photographs of people. When a client comes
to you for an image, let them determine whether it needs to be released.
To learn more about when model releases are actually required and other
business concerns surrounding it, see Model Releases.
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