Model Release Primer

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 and save $10.

Introduction

Cable Car Fun (1)
(San Francisco, California, USA)

Before we begin, let's test your basic understanding of when a photo needs to have a model release:

1. Do I need a release for a photo I took of someone in a public place?
2. Should I get a release even if the person in the photo is unrecognizable?
3. Does profiting from the sale of a picture trigger the need for a release?
4. I'm going to put on a public display. Is a release required?
5. What if the person is dead?
6. Do I need a release if the subject is naked?
7. I have tons of pictures of my ex-girlfriend. Can she sue me if I sold them?
8. I own a portrait studio. Do I need clients to sign releases?
9. 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?

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. These are the most common questions I get from people just like you. The reason the questions have no answer is because none indicate a use for the image in question. Unless and until there is a specific use for a photo, there is no answer. In fact, it doesn't even make sense to ask the question in the first place. So, 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. However, if you plan to license the pictures to someone for publication, then a release may be necessary.

Hot Sun Hangin
(Togo)

And here is where the wonderful world of Grey opens up to you. Is the image to be used in an advertisement? Or, is the image to be used in conjunction with an article in a magazine or newspaper? Understanding the difference between images used commercially or in editorial contexts is only the beginning. And while many people clearly understand that those differences exist, it's the over-simplification of them that gives a false perception on what you actually need to do. There is a tizzy of what-if's and exceptions that go to the very core of the First Amendment of the US Constitution. And once you go there, Whoa Nelly! You're in for some serious, eye-glazingly boring, sleepy time.

To save you from that, I'm going to try to characterize this stuff in ways that are fun, simple, and will make you a millionaire.

Ok, maybe not. But it'll be easier to understand. The reason why any of this is discussed to the degree that it is, is rooted in one of the most perpetuated fears about photography: that the photographer can get sued unless he gets a signed model release from the people (or properties) he photographs. The source of this anxiety is based on a fundamental misunderstanding of the law: they think photographer's are the ones who are responsible because they take the photo and sell it to someone. But that's actually not where the real concern is. To address that, let's ask the most basic question, "who is ultimately responsible for a photo being released?"

The Quick, Easy, Summary Answer

Those are my lawyers behind me.
(Nassau, Bahamas)

It may surprise you to know that the photographer isn't ultimately culpable for images that are published without a release. It's the publisher of an image that carries all the liability. Yes, whoever it is that puts the image into use needs to have the photo released. Who puts the photo into use? The user of the photo. The photographer is usually not that person. That the photographer sells the photo (or licenses it) is not what triggers the need for a model release.

Understanding this principle is easier when you think of how the law works with guns: if someone shoots his friend with a gun, the law starts with the person who used the gun. If the guy who got shot is going to sue someone, he doesn't start with the gun manufacturer; he sues his one-time friend. (We're assuming, for the sake of argument, that the two are no longer friends at this point.)

Now, the guy who used the gun has to defend himself. He may say, "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, the guy may say, "the ad from the gun manufacturer said, 'go ahead' shoot your friend in the face! It won't hurt him!'" Again, the claim is that the gun manufacturer induced this idiot to actually shoot his friend in the face. Yet, as we all know, such scenarios are possible, but unlikely. And the few attempts that have been made to hold gun manufacturers liable in lawsuits have (currently) fallen quite short of success.

The exact same principle applies to photographers and photographs. The photographer is the manufacturer (and often the supplier) of the photo, but it's ultimately the party that publishes the photo that is responsible for using it properly.

Photographing Whales
(Alaska, USA)

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.

For purposes of this discussion, we're not concerned about whether a release is required. The issues is whether you are responsible for knowing this answer. Are you liable if it turns out that the photo needed to be released? Or is the organization using the image responsible? That's really the question we're focused on first. Remember, the reason we're asking this question is because you had all these questions at the top asking if you need a release for various photo uses. But, it's important to underscore the fact that, whether a release is required or not, it isn't your responsibility to know this answer. In fact, the less you know may turn out to protect you in some circumstances.

To illustrate, let's walk through the real-world logistics of what happens if the person in photo decides to file a claim. As with my earlier example with the gun: it starts with the user. (Even if he threatens the photographer first, his lawyer will direct him to the publisher anyway for the same reason as the gun example because that's ultimately how the law works, and lawyers know this.) (Of course, those who don't know what they're doing may still threaten the photographer, and if the photographer succumbs to this empty threat, then the strategy worked. But, that's not how most situations will be handled; at least, not if there's any significant money involved.)

So, the first one on the hook is the publisher. If, in their defense, they claim you told them that the photo didn't need to be released, that may give you concern. (See? Maybe you shouldn't have said anything!) Still, let's look at that. The judge is going to want to know whether you actually told the the client it was OK, and how it is that you've expressed this. You may have said, "well, you're a non-profit, so it looks like an editorial use, so it's probably OK." Here, the judge is going to wonder why a fairly large organization is placing its legal liabilities in the word of a photographer who doesn't appear to be well informed.

On the other hand, if you said, "Absolutely! And I am so confident in your safety, that I will defend you if you get into trouble," then the judge is likely to be more lenient on the publisher and start looking to you to explain yourself. That'd be like the gun manufacturer saying, "Go ahead and shoot your friend in the face! It won't hurt him!" Point is, no photographer (or anyone else) in their right mind would say such a thing.

Martha Winery
(Moravia, Czech Republic)

All things considered, you really don't want to be in a position where the user of the photo can point to you at all. I'll come back to that later. So, short of actually signing your life away, the publisher still owns the responsibility for how the image is used.

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 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. Now, as it turns out, you start out that way: absolved of responsibility. That's right, unless you actually do or say something that changes this state, 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.

Nitty Gritty Details

Why are you safe "by default?" Because 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

Bay Area Theater Sports Troupe
(San Francisco, California, USA)

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.

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. Or course, all fo 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:

1. Did the user acquire the image legally?
2. Did the photographer represent the image properly?
3. Did the photographer inform the user of the release status?
4. 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.

Jack In Sink (3)
(Coiano, Tuscany, Italy)

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.

Vulkan Zagreb Manhole (b&w)
(Ugljan, Dalmatia, Croatia)

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

Hiking Torre Central (5)
(Patagonia)

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 for photos, 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.

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

Beach Couple Birds Cliffs (2)
(Santa Cruz, California, USA)

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, so you don't want to (nor would be expected to) adopt an overly defensive position, always scrutinizing every use for fear that you would be held liable. 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 about 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 cross examination later, 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.

This reality is often a surprise to many photographers, who mistakenly believe they are responsible for image uses. Because the publisher is responsible, the point when the photographer becomes involved is when the judge tries to determine whether the publisher was fully and properly notified of the status of the image. If the publisher can somehow demonstrate that the photographer coerced them into believing one thing or another about a photo or a use, then the waters get muddy. Therefore, it's best to stay out of any legal discussions with the licensing party.

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. This isn't that far fetched. In fact, there are probably more photographers who never get model releases than those who do, simply because they only sell images to the editorial market. (Think of press photographers, for example.)

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 The Model Release. But don't leave this chapter yet.)

The Indemnity Clause

Bike (4)
(Po Valley, Italy)

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."

Canoe Sunset Panoramic
(Palau)

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 unenforcible 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.

Sun Between Buildings
(Piran, Slovenia)

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

Hikers (10)
(Peru)

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.

Red Geraniums On Stairs
(Tinos, Greece)

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

Jack And Jill Porch (1)
(Nipton, California, USA)

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?

Yellow Hair Dolls
(Castellane, Provence, France)

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 The Model Release.)

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.

Highland Cattle (d)
(Scotland)

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

Iceberg Chunk (1)
(Fox Glacier, New Zealand)

So, putting it all together, let's review the basics:

1. You don't need a release just because you take pictures.
2. Releases may necessary for those who publish photos.
3. Unless a photo is put to use, no release is necessary.
4. It is not your responsibility to know whether a release is necessary.
5. 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.
6. Just because you may profit from the sale of picture, it does not automatically trigger the need for a release.
7. 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 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.

Menu
(Chamonix, France)

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 The Model Release.