The Model Release

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

You're at your kids soccer match at school and you're taking pictures. Being the photo buff that you are, you get everything—kids scoring goals, parents screaming from the sidelines, the popcorn vendor, and fans in the stands. Later, you show the pictures to some of the people, and find that some want to buy a print for themselves. This becomes a popular event, and over time, your reputation grows. The local newspaper gets wind of your talent and wants to license a few photos so it can put some in the paper for an article on the school's sports curriculum. Perhaps some shots are so good that the local gift shop wants to sell enlargements of the shot you took of the winning goal at the state championships.

All's going well, till someone tells you that you can't do any of these things unless the people in the photos sign a "release" allowing you to use their pictures.

This and other virtually identical scenarios illustrate a most common situation in which a photographer has to decide whether he needs a release from the people he is photographing. Whether it's a school game, a music concert, an amusement park, or a professional-league game—the circumstances may vary—but it's all about the same thing: What are people's rights concerning their own likenesses, and what are your rights as a photographer to use those photos?

At this point, you're looking at the length of this chapter and thinking, "oh boy, I don't want to read all that." (Indeed—I didn't really look forward to writing it!) So, let me first point you to a short-cut. If you're not a professional photographer, then just skip right down to the bottom and read the summary. If you are a pro, you can also start at the summary because I know you're too darn curious to get to the bottom line. So, go ahead and read it. I'll wait here.

Ok, you're back? I assume you now have a good bird's eye view of what we're dealing with here. And since you're back, I'm sure you're dying to know the answers to your questions, because of course, your particular circumstances are so unique and no one else has yet to address them. Ok, fine. So now let me address the next question on your mind:

Why Not Consult a Lawyer?

Court of Law
(Bridgeport, California, USA)

Some of you may be thinking, "why look to a photographer for advice about this subject, when you should be asking a lawyer?" There are three answers to this.

Model Releases fall under the scope of the First Amendment,
which is a very focused and specialized area of law that few lawyers are well-versed in. Those who are, call themselves "FA Attorneys" (for "First Amendment"), and most people don't have access to these kinds of lawyers. It's partially because they're rare, but even if you can find them, they're way too busy with very high-paying clients, like media companies who need to know whether they're going to be sued for billions of dollars because one of their reporters is about to run an article about a corrupt politician involving an under-aged intern.

Because you aren't necessarily going to get access to an FA lawyer, your next option is to speak to a general-practice lawyer, which is where things usually start going badly very quickly. FA layers often joke that 90% of their business comes from clients who got into trouble because they took the advice of non-FA lawyers in the first place. If you're one of the few that actually does speak to an FA lawyer, the next problem will come up:

There is no easy, single answer to any FA-related question.
Aside from a few extremely simple and commonly understood cases such as "news reporting" (on one extreme) and "advertising" (on the other) the entire middle ground of when a photo may require a release is open to many circumstantial questions. There is no such thing as a simple answer. No matter what you say, a good FA lawyer will reply with, "it depends on the circumstances," at which point, you start plugging the meter with quarters. If you're willing to do that, you may get some good hypothetical scenarios about what your potential liabilities are, but this gets into the next problem:

Lawyers don't give good business advice.

Risky Position
(Patagonia)

"Potential problems" don't mean anything. You could be hit by a car crossing the street, but that doesn't mean you don't cross. In fact, getting hit by a car is more likely than it is that a photographer is sued for a photo he took of someone. In fact, it's extremely rare for a photographer to get sued. To understand that, you should read Model Release Primer, which explains just who is ultimately responsible for a photo of someone being published without a release. Most lawyers don't know these critical factors of publishing and the First Amendment. Therefore, they will cite risks—even realistic ones—but you're not the one at risk in most typical circumstances. Someone else is. That said, that someone could be your client—the one who licenses your photo—in which case, they, too, know the risks, and may not license the photo unless it has a release. So, in order for you to sell your photos, it's important to know those circumstances when releases may be necessary. But that's a business issue.

People think they want to hear about this subject from lawyers because they think they want to protect themselves. Though legal interpretation and analysis of people's rights of privacy and publicity can be very tricky, the real discussion to be had is the business analysis of how the law works. Lawyers are less adept at doing that than a business person is, especially when liability doesn't lie with you in the first place. So, you shouldn't be thinking in terms of whether you can get in trouble for a photo you have that isn't released, it's thinking in terms of who your potential clients are for that photo so you can strategize your marketing and sales efforts to yield the best outcome. Lawyers can advise on legal matters, but usually not on business strategies.

What's a model release?

Priests Meeting
(Kyoto, Japan)

One is shown at the top of this page. In brief, a model release is a document that stipulates the terms under which one party may use pictures taken of another party. Most of the time, it's a brief (one paragraph) statement, although it can also be a lengthy contract full of stipulations on payment schedules, lists of permitted and non-permitted uses, legal rights and sometimes even limitations on the amount of money you can sue the other party for in the event of a contract violation. A model release can say whatever you want it to say—long or short—as long as both parties agree to it. It can also be retroactive; you can shoot first and get the release later. (In fact, sometimes photographers don't bother getting a release unless they have an opportunity to use the picture in a way that would require one.)

And remember, verbal agreements don't mean anything. It makes no difference if someone gives you all the verbal permission and encouragement in the world, the publication of an image can quickly change the mind of someone, especially if they see financial opportunity, or have been harmed in a way they didn't anticipate. So, remember this:

"A verbal agreement is as good as the paper it's written on."

--Samuel Goldwyn

Technically, the release used at the top of this page is sufficient for any use you may ever need. However, the business caveats are simply that it is written very heavily weighted in favor of the photographer (and his licensees), and not really toward the person in the photo. In other words, it's very broadly worded, and is so permissive, you may not necessarily get anyone and everyone to sign it. This is particularly true of professional models who would prefer (if not demand) that more limitations be stipulated (such as a narrower scope of use, like a singular and particular ad or publisher). Such caveats aside, most common people that you might photograph candidly on the street or in public don't care that much and will probably sign it without giving much thought to it.

If you ever get push-back on this sample release, you could always modify it by simply writing in extra provisions, even on the back, and even in crayon. It simply doesn't matter, so long as it's signed. For example, you may take a picture of a kid scoring a soccer goal, and ask the parents to sign the release so you can license the photo to the local sporting goods store. If the parents resist because the scope appears too broad, just write in "to be used only for ads for Joe's Sporting Good Store", or whatever the name happens to be, and you're done. There's no need to get really formal about this stuff.

There is no government mandate about when a release is required. That is, the government does not track down violators. It is strictly a matter of civil law that must be enforced by individuals themselves. People have rights to privacy and publicity, but the First Amendment of the US Constitution also grants freedom of expression. It is this mixture of rights that often run counter to one another, so what a model release does is remove that conflict. As its name implies, it "releases" one party from liability for having violated the other party's rights.

Pelican Flight (7)
(Galapagos, Ecuador)

A quick and important reminder here: Model Release Primer (which you have read, correct?) states that the photographer is rarely the publisher of images. Instead, he licenses photos to others to publish. It's because of this transaction that it's imperative that the model release includes the language that says the photographer can assign the release to someone else. See the sample provided at the top of this page. The photographer has people sign releases because he intends to sell the photo to someone else who will publish them, not entirely because he is protecting himself. Of course, some photographers self-publish, but this is very rare, especially for the kind of uses that require releases.

And here's where things get sticky. What are those conditions? When do they apply? What do you do when the rights of free speech conflict with someone's right to privacy? Because of these complexities, this is probably the most misunderstood topic in the world of photography, which makes it ripe for misinformation running rampant. Whether it's verbal hearsay, or rumors that spread in internet chat rooms, the mistake people make is trying to simplify into a few words a topic that cannot be simplified. Most legal cases that you hear about are too specific for one to draw broad conclusions about generalized behaviors. For instance, if you were to hear about a case in which someone was sued for taking a picture at a soccer game, don't simply assume that one cannot take pictures at soccer games, or any other kind of sporting event. This is how rumors spread. The basic facts of that one case are usually misinterpreted from the outset, and those who spread rumors usually fail to follow these cases, which are often dismissed as "frivolous" anyway.

The reality is that almost every case is different, because the conditions that trigger the need—or lack thereof—for a model release are tightly intertwined and interdependent on multiple factors. It is more the exception than the rule to establish conclusively the necessity of a release for any given image.

Another critical point: many people make their assumptions about when releases are necessary because they were told by their clients, be they publishers or stock photo agencies, that they require releases for photos they use. This does not mean that the use actually requires a release. It only means that publishers are fearful of being sued, and having a release alleviates that risk. Of course, this is a perfectly good reason for them to be cautious, which also underscores the main point that publishers are the ones who are sued, not photographers. Accordingly, the more images you have that are released, the wider your potential audience of buyers are. But, do not confuse the desire for a release with a need for a release. These are very different things, especially when you have business considerations at stake. Simple example: just because you have a great photo of someone that didn't sign a release does not mean that you shouldn't try to sell it—if it's a great shot, you may make some pretty good money with it. Money that you wouldn't have gotten if you wrongly assumed that you couldn't sell it because you didn't have a release.

When a Release is Necessary

We want Answers, dammit!
(USA)

Whether it's photos of people, buildings, or other copyrighted or trademarked items, the key concept you need to always have at the front of your mind is "association." Does the person or thing in the photo imply he or it is an advocate or sponsor for an underlying idea or product. The stronger the implication of this kind of advocacy, the more likely that someone can draw an "association" between the photo subject and that product or idea. Hence, the stronger the need for a release.

The background to all this is that, in some states in the USA, people are entitled to be compensated for using their "likeness" for purposes of promoting a product, idea, political or religious view (or to imply support for any of those things). California is such a state, and the law regarding this subject can be found at http://caselaw.lp.findlaw.com/cacodes/civ/3344-3346.html. Note that New York is a state where compensation is not necessary for a consent to be valid in a model release. While the law may be clear on this for any given state, the real question to ask is still whether a given use of someone's like is a "commercial use."

Similarly to advocacy, there's the question of whether you may be using "features" of a person or thing—such as whether they are well-known celebrities or iconic logos—which may also trigger the need for a release. This is similar to the "association" concept, but rather than suggesting that they are "advocates or supporters" of an idea, the use of the image could be exploiting their inherent recognizability and "goodwill" to enhance the perceived value of a product or idea. (Also see Photos of Trademarked and Copyrighted Works.)

Day Spa Salon (2)
(Park City, Utah, USA)

An important distinction needs to be made here: making statements is free speech, so you may make all the statements you like, provided they are yours. Associating someone else with your views (without his permission) is not (necessarily) free speech. Nor is making false statements about someone (libel). Therefore, a publisher is well-advised to understand how a proposed image is to be used, even in an editorial context, before publishing an unreleased photo. (You, the photographer, on the other hand, don't need to worry about this unless you are self-publishing.)

For example, a well-known school textbook company using an unreleased image in an educational context does not require a release. However, if a religious organization wanted to use an image, they're almost assuredly going to need a release. Religion trumps education, not the other way around. So, if there is any hint of religious dogma, bias, or promotion, privacy law doesn't recognize the use of the image as "educational." The easy test is to look at who the publisher is. If it's a religious institution, or if there any any affiliation with a religious person or organization, chances are really high it would be regarded as a use that would require a release from the subject of the photo.

Of course, there are multitudes of exceptions, as well as the right to free speech, that runs counter to the "association" concept. So, careful understanding of those caveats is important, as will be discussed next. So again, remember,

"Most scenarios are not clear-cut on whether or not a release is required. In fact, most cases are in the middle."

It's this very wide gray area of imprecision that most people don't expect, making them extremely uncomfortable. They want precise answers, and are reticent to accept vagaries like, "it depends," or especially, "well, technically... but you probably don't need to worry because..." In other words, they don't want to think. (The quest for simple, easy answers is what feeds the rumor mill and causes poor decisions to be made.)

Cruise Ship In Port (2)
(Alaska, USA)

Can you identify the subject as a unique person?

If you can't, you don't need a release. This is not quite as easy as you think, because there are shades of gray. Still, 99% of the people reading this text can rest assured that unless people are clearly and unambiguously identifiable in a way that a judge would be able to say, "yes that's him," you don't need a release.

So, if you can identify the person, does that automatically mean you need a release? Not yet. You have to go to the next item.

How is the photo to be used?

Commit this statement to memory: Unless and until you have a specific use for an image, it doesn't make sense to ask whether a model release is necessary. Why? Because of "association." The photo itself does not draw an association between the person in the photo and someone or something else unless a use for the photo exists. Otherwise, there is no "something else" to associate with. Once a use for the photo is determined (because someone wants to license it from you), then you can now consider whether that use would imply an association—or rather, whether the person in the photo would be assumed to be an advocate or sponsor for the product or idea that the user of the image is doing with it. Some uses require a release. Some do not. Some are vague. Since drawing an association is not always obvious (and is easily disputed), you have to look at other things to strengthen the argument on whether a release may or may not be required.

How did you take the picture?

Japanese Subway
(Tokyo, Kanto, Japan)

Was it a public setting, like on a street? Was it in a studio? Did the person know you were taking the photo? Sometimes, you can be taking pictures in private places: someone's home, the workplace, a bar or concert hall, amusement park, and so on. There can be limitations in private settings that need to be considered. But first, let's get some basics out of the way.

No photo can be used at all if any laws were broken, such as "breaking and entering" into someone's home, invasion of privacy, or placing a hidden camera in a workplace. Because these acts violate existing laws, the legality of the photos are moot.

Assuming no laws are broken, shooting in public places provides the most latitude for licensing unreleased pictures of people, even if they are identifiable. "Latitude" does not mean "permitted"—it means that the bar to clear is higher than if the photo was shot in a private setting. For example, a photo of a large crowd of people to be used on a billboard ad for a cellular company my have some recognizable faces, but unless it appears that such people were "advocates or sponsors" for the company, a release from them wouldn't be necessary. Judges (and most objective people) can tell whether a photo trips such advocacy wires, so don't talk yourself into thinking there is ambiguity in a photo because of the person's expression on their face or because you don't think there is a notion of advocacy. You really have to learn to think objectively about this.

Of course, what I mentioned above is a "commercial" use of an image: a billboard ad for a cellphone company. As you no doubt know, a release would not be necessary at all if the use is for editorial purposes, such as a newspaper story or magazine article about a subject. Here, photos of recognizable people and things (copyrighted and trademarked items) taken in public for editorial publication is called "fair use."

We'll touch upon all this again—after all, this is just the checklist to review—so don't worry if you're not getting it all immediately. On that note, there's one more checklist item that needs to be noted:

Was there proper compensation?

This is actually of less concern for everyday use by everyday people, but it is a technicality that you should be aware of for some states. For the moment, set a bookmark in your mind that, if certain other conditions apply, there may be a requirement for compensation in order for a model release to be "valid." As noted earlier, California law requires compensation for a release to be valid, whereas New York does not. Which state within the US you reside in may specify one way or another, but there can be other factors that get into the mix, such as changes of jurisdiction or venue due to where the photo is published, for example.

Most of the time, you should be able to go back to this checklist to figure out where the gray areas are that may need more thorough consideration. But, knowing the answers is not enough—you need to understand how they all tie together, which is not so straightforward. Even then, the decision is incomplete till you go through the Risk/Reward Analysis (later) and apply pragmatism.

Analyzing the Checklist

Let's go through each of the items on the checklist and examine more closely what its implications are. Remember, it's rare that one and only one checklist item triggers the requirement for a release, or that it permits the use without a release. Many factors have to be weighed together.

Identifiability

Non-identifiable People
(California, USA)

In the earlier checklist, the first item says, "If you can't identify the subject of the photo, you don't need a release." However, there are exceptions, but it's almost certainly the case that your case is not such an exception.

Ok, so now let's assume you have a clearly identifiable subject. If you were establish (using later checklist items) that you do need a release and you don't have one, a publisher can still use the image provided that he removes identifying features. One way is to digitally alter the image to make the person unrecognizable. "Rubbing out" an otherwise identifiable face is perfectly legal. In fact, you see this all the time in video broadcasts, such as those commercials that advertise weight-loss programs, where a face is usually "pixilated" or "smudged," leaving the rest of the person clear and visible. Because the publisher can rub out a face, he can reduce his liability accordingly. You don't need to do this, nor should you—you're not the one who has to, or that can get in trouble if the publisher doesn't do it. You're just providing the content, so as the photographer, you can sell the image to the client, even if you don't have a release and the use of the image would require one. However, it so happens that you don't want to get caught up in a legal dispute, should the subject ever file a suit. There are ways to protect yourself from this, which is covered in Model Release Primer.

Now, let's go back to that issue of the "crowd" shot again: what if your picture was of the entire field of kids playing soccer. Although you can still identify some people individually, do you still need a release? It's been successfully argued that if the point of the photo is not a specific person, but a broader scene, then a release is not necessary. Tying a person to a promotion of an idea isn't permitted, and a crowd dilutes the perception that a particular person is tied closely. If the crowd were a cohesive group—like a particular religious congregation—then there may be case for their making a claim as a group (or their organization can on their behalf).

On the other hand, a religious use of an image of a person can be problem. For example, even though posters and postcards usually do not constitute a commercial use, a litigant once sued a postcard company for the use of a photo of him, not because of anything to do with the photo, but because the company used the proceeds to support the Mormon Church, thereby implying that the person was an advocate of the Church. (We'll look at another postcard use again later.) The point is, once again, that use has a great influence on whether a release is needed, bringing us to the next item on the list.

Image Use

Jill Food (3)
(USA)

If you have a picture (or are about to shoot one), but don't yet have a use for it, then the question of whether a release is needed cannot be answered at all. Sure, you can try to get one signed anyway, but you won't actually need it unless you have a use that would call for it. This is why the release at the top of this chapter is written the way it is—it's broad enough that you could get it signed right away, and then have unrestricted use for it later.

Also, money has no bearing on this from a legal point of view. That is, whether you sell an image for thousands of dollars, or give it away for free, the transaction itself is not up for question. It is only how the image is ultimately used does it potentially infringe on the rights of others.

How was the Photo Taken?

Antika Sign And Narrow Street
(Ljubljana, Slovenia)

One thing about the soccer photo that's easy to understand is that it was taken on school property. For this example, we're assuming a public school, which makes it public property. But, what about a picture that was taken of kids playing soccer at a private school, or more to the point, in their own backyard? In the case of private property, the question is then, "how did you get the picture?" If you broke into their property and planted a camera, that would be illegal, and you cannot sell the photo to anyone, even to news organizations. If you used a long lens from outside their property—even on your own property—you may still be in violation of the law, if you were found to be a "peeping tom." Ok, those examples are easy because it's "against the law," but most of the time when people take pictures on private property, they may not know it, or be aware of it.

An Exercise

A Face in a Crowd
Model Release Required?
(Kyoto, Japan)

Let's go through an example by looking at the following photo of the "face in the crowd." Did I need to get a model release from this person (or her parents)? Let's go through the checklist:

Are the people identifiable?

What's the use of the photo?

How was the photo taken?

Was there compensation?

What's your analysis? Can you argue both for and against the need for a model release here?

Let's start the discussion by looking at the first two questions: are the people identifiable? And, what is the use? If the people weren't identifiable, we could rule out the need for a release. But, since they are, it depends on other factors. So, let's look at those.

We know the "use" because you're reading this text: it's editorial. That is, I'm teaching a subject. Note that not all "teaching" is necessarily considered editorial. Product manuals that explain how to use a device (such as a camera) is teaching, but it's coupled with the product itself, making it part of a more commercial endeavor than the sole purpose of education. If the manual were sold separately, then it distances itself significantly from the product. And if it was published by a completely different company (or self-published by the author), then this distances the book even further.

If all this material were in a book that is sold for money, is it suddenly a "commercial product?" No—not any more so than how a newspaper is sold for money, and its content is purely editorial. How about the fact that ads are placed on the same page as this article? Again, no, just as ads are used in newspapers and that doesn't suddenly trigger the news articles as being commercial. Why? Remember the "concept" I told you: association. Just because there's an ad on the page—whether here, or in a newspaper, or on a blog—doesn't mean there's an association between the person in the photo as part of the article and the ad itself. And finally, could the person in the photo be considered an "advocate or sponsor" for the content discussed here? Clearly not, as is already self-evident. If I were promoting an idea or product, that would be different, and that gets into the beginning of the gray, ambiguous cases. At the forefront of these are religious and political "teachings." In these highly emotional subjects, true believers often feel they are simply teaching facts, but the courts still consider them "opinions"—well, for the time-being they do. In any event, such text is not considered editorial, so if photos are used, releases are almost certainly required. Yet, there are many things that can be considered opinions, or possibly products or services, and it's not always easy to know whether the photo subjects could be considered "advocates or sponsors." All the more reason why it's the publisher that ultimately carries the burden of responsibility for whether to use a photo without a release. If the subject were to object, the publisher has to defend its rationale for why a release wasn't necessary.

Church On Hill With Scenic (2)
(Naxos, Greece)

Consider a picture of the head of the Supreme Court of the United States, looking directly into the camera, and a caption underneath saying, "My name is William H. Rehnquist and I agree with this text." Clearly, this might be a problem. In this hypothetical, I would be suggesting that the head of the Supreme Court has reviewed this material, which he hasn't. (Note to Justice Rehnquist, or any of his lawyers who happen to be reading this: I don't have a picture of him, nor do I have a caption saying that he agrees with this text. If this is still a problem, contact the publisher. I've moved to Mexico.) Anyway, the point is that you have to be careful how you represent the people in images; it's not just a matter of how the use is classified.

Alluding to the religious or political uses described earlier, there is an issue of misrepresentation to consider, but again, it doesn't apply here, as I am making no such statements at all.

This makes the question of identifiability irrelevant because I am not making claims that these people subscribe to my opinions.

The next question is whether the picture was taken in a private setting. For example, a photo studio in the shopping mall that takes people's portraits for a fee is a "private setting" because people aren't in an open space where they could be photographed by anyone at any time. They are now in a controlled setting and are there specifically for their picture to be taken. Obviously, a release isn't necessary for someone to get a photo of himself, because the photographer or the studio is not "using" the pictures—he's just giving them to the client. However, if the studio wanted to hang one in the studio itself or in the display window to illustrate the kind of work it does, a release would be required from the subject of that photo because the use is "commercial." This is a form of advertising or promotion of a product or service. So, is a "private setting" anywhere where the photographer happens to be? Not necessarily, nor is it a stand-alone trigger for the need for a release (for someone else to use/publish the image). I focus on this point because many people are worried about shooting a picture from a private place, like a hotel room, or an amusement park. Does it automatically require approval or a release from the property owner? This is not necessarily the case, especially if there are no identifying elements, in particular, those that are copyrighted or trademarked. If a photo contained a sign or caricature (which is copyrighted or trademarked), then the situation might be different, but only if the use of the image would cause a viewer to be confused about the role of the caricature in how the photo was used. That is, just because you have a photo of Micky Mouse that you took on your vacation to DisneyLand on your website is not a violation of copyright or trademark. And just because you are selling it does not constitute a violation either. It would only be a violation if someone licensed it for use in an ad that implied that the advertiser was the Disney company (or that Disney endorsed the company), even though it didn't. This would be grounds of copyright and/or trademark infringement. (And the liable party would be the user of the image, not the photographer.) Again, see Photos of Trademarked and Copyrighted Works for more.

Compensation

Andrea
(San Francisco, California, USA)

In some states within the US, a model release is not enforceable unless there was some form of compensation—California is such a state. New York does not require compensation. For those states where compensation is required, what is interpreted as compensation, or what form it takes, is not set in stone.

Compensation doesn't have to be money; it can be anything. Even barter. It just has to be something of "value," or as is used in legalese, "for valuable consideration." Because this is vague, most courts interpret this as being whether the contract entered into between the parties were done in full awareness of what they were getting into. So, if you write into the model release that you will give the subject a fake Rolex watch, and the person agrees, a judge would probably say that's ok. But, if it says you'll give them a verbal compliment, a judge might have a problem with that. Obviously, the item of value must be a "legal" item—recreational drugs are not going to look good in a judge's opinion, regardless of how much "value" they may have.

Pagoda (1)
(San Francisco, California, USA)

A popular form of compensation that some photographers like to use is a physical "print" of the photograph in return for permission to use it (via a signed release). This is fine, but be aware of the time, cost and effort to do this, especially if you're going to be doing it frequently. It's common to do this for emerging models who are trying to build their portfolio, or if you're running a photo studio or other form of business where you make prints all the time as a standard part of business. Making another print for someone in exchange for a release is easy. But if you don't make a lot of prints, and if you plan on getting a lot of releases, then this could be expensive. For the common person on the street, it just might be easier (and quicker) to just pay them money. A dollar is typical.

Professional photo shoots usually involve a modeling agency, which will produce a release for you to sign, binding you to limitations for what you can do with the photos. Usually, the client and use are known ahead of time, which is written into the contract.

Where the "compensation" is not involved is when the release is part of a broader agreement between the parties. A typical example is where one goes on tour with an adventure travel company. Here, the liability release waiver, which usually states that you won't sue the company if you slip and hurt yourself, usually has additional language that allows the company to use pictures of you for use in its catalogs. In fact, this is part of my business. I shoot photographs for travel outfitters that sell trips to clients who pay to go hiking, biking, or take cultural tours around the world. The clients are always informed of what's going on, and people can opt-out if they want to, simply because that's good business etiquette. However, the advantage here is that the release has been obtained ahead of time, thereby relieving everyone from the hassle of taking care of it after the fact (or during the trip), should the need arise.

The Risk/Reward Analysis

Another face in the crowd
(Peru)

First, let me put you at ease: most disputes never go to court. Please, read that again. Now, let me put you further at ease: even when cases do go to court, the photographer is not the one people go after. It's the publisher. I remind you once again to please read Model Release Primer, because that clarifies where the burden of responsibility lies. (That chapter also discusses the exceptions.) It's sad how I get email from people who are so concerned with the most frivolous matters, like whether they can place an old black and white, faded photo of some guy they have no idea who it is, on a website that talks about refurbishing old photos. Relax, and commit this to memory: people sue either because there's a perception of easy money (usually, a false one), or because they're just upset about how an image was (or will be) used. And if they are upset, they usually go to the publisher, not the photographer.

About lawsuits: it's expensive to sue someone. Incredibly expensive. The cost of hiring a lawyer to sue you is so exorbitant, that unless you are both egregiously guilty and stinking rich, you're worrying over nothing. Of course, this is not a green light to publish nude photos of your ex-girlfriend because you happen to be homeless and living under a bridge. You also don't want to be burdened by the "hassle factor" of getting badgered by annoying letters from angry people who "threaten" suits, even though they will eventually learn they can't afford to sue you. Millions of photos a year are published without a model release in ways that, if accompanied by a litigious lawyer, would end up in at least a healthy settlement. There are fewer suits on wrongful publication of images than there are tax audits, lottery winners, or elephants that stand on one leg at the circus. It's just a very rare event, and usually limited to high-profile celebrities where their images have financial value.

The other reason people sue—because they're upset about how they are represented—is usually handled very differently than a lawsuit. Here, their primary objective isn't money, it's to stop the image from being used. So the first thing they're going to do is talk to you, perhaps by yelling and screaming, or by sending email using all capital letters. The point is, if they're upset, they're not going to silently avoid you and go directly to a lawyer and prepare a lawsuit against you. And even if such a person did that, the first thing the lawyer's going to ask is, "so, did you ask the other party to just not use the photo?"

No matter what your circumstances are, the best way to handle any situation is less about knowing and explaining the law to someone, than it is about doing something that's far easier: talking to them. Allaying people's fears about how their images may be used eliminates 90% of the problem right there.

The risk of legal entanglement is not something that should scare you out of the photo business, or even cause you to limit your subjects to birds, bees, snow and trees. Yet, I don't want to put you too much at ease: these are important issues, and guidelines should be followed to the best of your abilities.

The Perils of Getting a Release

271 T (200)
(Nassau, Bahamas)

We all understand that the photographer is the apparent target simply because he was there to take the picture in the first place. And, because of the close relationship between the photographer and the publisher, it's in the photographer's business interests to get the release because he has immediate and convenient access to the person in the photo. So, this means that the photographer really is the person who will be getting a signed release, regardless of who ultimately publishes the image. But, the process of obtaining that release isn't so simple either.

There are upsides and downsides to the prospect of getting a subject to sign a model release. As with anything in business, there are always risks, ranging from errors you make, to the "Murphy's Law" syndrome, where bad things happen no matter how hard you try to avoid them. Because there are fuzzy scenarios, and people don't always take well to being asked to sign a release (timing is important!), you can actually cause yourself more headache by trying to get a release than if you just took the picture and dealt with it later (or not at all). By having a better understanding of certain realities, you can find the best balance between the upsides and downsides of doing business.

To understand the framework for this line of discussion, let's make it easy by defining two easy and obvious ends of a spectrum. On one end, if you're not in the business of photography, and you're just an everyday person that took a snapshot of something—anything, like a rock star at a concert, a woman cooking, or a professional baseball game—and someone says to you, "Hey! Can I buy a print of that?" For all practical reasons, you can sell them this picture without a release. Why? For no other reason than this is the practical reality of life. This sort of small-time exchange between people is considered a "private exchange," not a form of distribution. This, much the same way you can record your CD onto tape and loan it—or even sell it—to a friend. The point is, you're clearly on the far end of the business spectrum that doesn't really mean much in the business world. For more details on this, see Model Release Primer.

Famous Celebrity Photo
(San Francisco, California, USA)

Now, compare that with the other end of the spectrum: if you had a store in the mall where your business was selling prints of baseball players—even the same snapshot you may have taken at the game you went to—then you would need a release from all sorts of people, such as the players themselves, the team they play for, the baseball commission, and maybe even others that would have their lawyers on you in a second if you had such a business. In this case, you're engaging in formal distribution of trademarked or copyrighted material, and/or the sales of identifiable likeness of people. (This is also a case where you are both the photographer and the publisher, because you are selling pictures in your own store.)

While these two ends of the spectrum are obvious to you and me, the confusion—and hence, the need for this section here—is finding where that fine line is in the middle. When does a transaction go from an informal, friendly exchange between a few individuals, to a formal business model that would require a model release? Now, if you're thinking that, well, you're a pro photographer in business, then that's clearly on one side of the gray line. Yet, that doesn't quite necessarily apply to all circumstances. Similarly, if you're thinking that the best course is jurisprudence, and to assume the conservative position is to get a release "to be safe," the problem with that is that it can actually cause you more trouble than if you'd just kept quiet.

The Maasai: Not Culturally Predisposed to Litigation
(Ngorongoro Crater, Tanzania)

Before I tangent into those directions, I want to close the loop on the framework we're working with here. What all this leads to is the biggest risk of all: money. People or companies with lots of money are more at risk, and people with very little money are less at risk. People who do "big" things with pictures (high profile, or mass distribution, or anything that garners attention) are more at risk, whereas people who engage in smaller transactions (like with only one person, or in a small market) are less at risk. Where you are in the spectrum helps govern what your risk level is, and what kinds of precautions you need (or not need) to make.

Big companies always have to be careful about what they do when it comes to the public because of susceptibility to lawsuits. Even baseless claims are costly to defend, and unscrupulous people are known to go after large media companies for photo usages, even though 99% of these claims are without merit. Their best defense against this is to only use released images, even if a given use doesn't require one. Yes, this very practice is what causes most people to completely misunderstand when and why model releases are necessary. Just because a media company gets a release from someone for a particular use does not mean that a release was necessary. It means they are reducing the chance of a frivolous lawsuit. They need to do this because they are high-profile and have tons of money. Do you need to protect yourself from a frivolous lawsuit? That's up to you to decide, and that's part of the risk/reward analysis.

One of the biggest mistake photographers make is assuming that they have to follow the same "behaviors" as big companies do because, well, they must know something the little guys don't. This is a fallacy. Big companies do things because their risk assessment require them to be that way. This does not necessarily translate to your business (if you are in business), or your risk level.

Strangely, market forces seem to impose a sort of equilibrium on this matter. If you never get releases for your photos, chances are you're not going to have many highly paid sales because those licensee won't assume the risk of using unreleased images (even though their use may not require one). Therefore, the market that buys unreleased photos will be limited to those who buy for editorial uses, thereby reducing your risk. Not that there's anything wrong with this—there's plenty of good money in selling to editorial clients, so don't assume that your collection of unreleased people pictures are worthless.

Completing the Picture

Supermodel
(San Francisco, California, USA)

The checklist that was presented earlier in the chapter may help you decide whether a release is required for a given use of a photo. But, real-world scenarios often outnumber the text book cases usually discussed. There is more often no cut and dry answer. Therefore, the Risk/Reward Analysis is used to find a pragmatic perspective to tip you one way or the other.

At this point, let's review some common issues that people face every day on the question of whether (or how) a release may or may not be required. As you read through them, you may gain a better appreciation for just how complex circumstances may become.

Fair Use

Many Identifiable People
(San Francisco, California, USA)

I alluded to "fair use" earlier when I mentioned that a photo could be used in an editorial context without the need for a release. This applies to people, but also to photos of copyrighted items, like works of art (like a photo of a sculpture or a painting or another photo), or trademarked items (like the Coca Cola logo). Photos taken of anything taken in public and published in editorial context do not need releases because they fall under the "fair use" provision.

Many who know a little about fair use usually only know a subset of the many definitions it can entail, and if they aren't familiar with how it pertains to photography, this section can be confusing, or worse, appear misleading or unrelated. But they are related, so let's back up and look at it from a conceptual viewpoint. The presumption of fair use is that when "things" (people or objects) are in public view, they can be used in any manner that is protected by The First Amendment. Many kinds of speech and expressions are protected, but then, many aren't. You can state your opinion freely, but you can't damage or cause harm to someone's reputation through misinformation (e.g., lying). Obviously, this is really tricky stuff, and we don't want to get buried in this banter again, so let's just step back and look at photography.

The spirit of "fair use" means anyone should be aware that he could be photographed at any time by anyone. One cannot stop the photography process from taking place, even though a subject still has some rights for how those photos may be used. This is in contrast to private settings, such as going into someone's home, or in a bar or at a concert. Under those conditions, someone actually has the right to stop you from taking pictures. This is usually stated on an admission ticket that has fine print that says, "no cameras." Obviously, you see people there shooting anyway, which may cause you to think, "are they breaking the law?" No. It just means that the property has a right to stop you from doing so if they so desire. It's up to them to enforce their rights or not. Turns out, most places don't mind that pictures are taken either. So why have the restriction? There could be a variety of reasons, such as how some photographers can be disruptive, or the property may have certain items they don't want photographed, or there may be trademark concerns. For further discussion on that, see Photos of Trademarked and Copyrighted Works.

Interestingly, despite the fact that you may have taken photos against the policy stated by the admission ticket, this has no bearing on the limitations of your right to license those images. This is because properties (and animals) do not enjoy the same privacy or other protections by law that people do. I'll touch upon this in the next section on Property Releases.

Now, in practical reality, the only people who really care about this are high-profile, famous, or rich celebrities who derive some of their gazillions of dollars of income from the sales of their own photos, shot by their own (work-for-hire) photographers. They also don't want to see "bad" pictures of them bubbling up all over the place, so they restrict photography to control their appearance. If you're just at the local bar and are watching a band, you should certainly feel free to take pictures. Who knows—you could get a new client.

Property Releases

Beringer Winery
(Napa, California, USA)

Another widely misunderstood topic is that of property releases. Most people think that such are necessary when taking pictures of buildings and the like. However, property does not have any special rights, nor do the people who own property. So, just because someone may own something—a building, a piece of real estate, or an item of any sort—it doesn't mean you need a property release to take a picture of it, or to license it to anyone. However, if the property owner wishes to protect his properties from certain kinds of published uses, they can do so through copyright and/or trademark registration. This is how some companies protect buildings, designs, a work of art, a performance, or anything else. These protextions are enforced by preventing someone from publishing a photo in a very particular manner that would violate the copryight or trademark. But those particulars are very high standards, and most likely do not apply to the publications that photographers typically sell to. Of course, if any given licensee wishes to use your photo for their needs, whatever they are, it's the licensee that needs to both establish that the photo may need a release, and to acquire the release themselves. You may think that getting a release ahead of time would be useful here, but releases for copyrights and trademarks are not as simple as those used for people, and as you will learn in the article, Photos of Trademarked and Copyrighted Works, if a release actually is necessary, it would be for a very specific use that you would probably not know about ahead of time when you shoot the picture. So, getting a release in anticipation of a sale would be either unnecessary or useless.

In any event, taking photographs of such property is always legal, but for one to publish photographs of such items in a manner that would violate that copyright or trademark protection, a release may be necessary.

Pets

Pets don't need a release
(California, USA)

Animals do not share the same rights as humans, much to the dismay of PETA. So, photos of animals invariably do not require releases. The "exceptions", such as specific and well-known animals, are protected, not because they are "animals", but because their likenesses are trademarked. An advertiser can't use a photo of Lassie, the famous TV dog, in an ad without a release from whoever owns that trademark. Of course, it'd be incumbent on a litigant to prove that the photo is, in fact, Lassie. Generally, the real complaint would come about because the user of the image used the name and "goodwill" of Lassie as a form of promotion. In this case, the claim would more likely be that the ad said something that wasn't permitted, and the photo wouldn't really be that much of a concern. (But, while you're in the courtroom, why not add it to the list of claims?)

If you're looking to make a calendar of cute animals, and you're using candid photos you took in public, you are free to do so without releases from the animals' owners for three reasons:

1. Fair use
2. Calendars are editorial in nature, unless they are associated with a product, company, service, etc.

The "fair use" item above is important. If you photographed the animals in a private settings, not in public view, such as a photo studio, you need to get a release because it's a private business transaction that has nothing to do with "fair use." And, in fact, this would apply to people, too. (Hence, the fact that it's a private setting is what matters, not the fact that it's a person or animal.) You can't bring someone in and have them go through a photo shoot and not tell them what you're doing and why... at least, not as far as the need for a release is concerned. If you get a release, the language should be as specific as possible about the pet so as to avoid future arguments. Some pet studios actually write into their service agreement that they have the right to use the photos they take for promotional uses, and most people don't have a problem with this. This is neither underhanded or unethical, unless you are one of the few who is under the mistaken impression that people make a lot of money from such calendars. (If that were only the case.) It's common practice to give free copies of the calendar to those clients whose photos (of them or their pets) are used in it.

Satire

Yes, when it comes to humor, just about anyone and anything is free from requiring a release. You see this all the time on television and in printed form. Saturday Night Live has made such satire a household name in contemporary culture. But, tread carefully in this area too; people hate to be made fun of. Also, people might make veiled attempts to capitalize on a celebrity, and use the "satire" excuse to justify it. For example, a company that makes the "bobbing head doll" made one of Arnold Schwarzenegger after he became governor of California. The governor sued under the premise that he's a movie star, but the defense claimed that he is now a public figure, and the doll was satirical of his persona. The company lost the case after a long court deliberation, because the court ultimately decided that the doll was taking advantage of Arnold's movie celebrity status, not his role as governor. That it was a close call is a reminder that these things are never cut and dry.

And by the way, to get a sense of how all of this can easily be argued in the other direction (despite what courts say), see this article. I don't have an opinion one way or another—just presenting the various points of view.

Art, Books, Exhibitions, Presentations, Etc.

Recognizable Hands, not Face
(Rome, Italy)

Speaking of the First Amendment, artistic exhibitions (and publications) are considered editorial and are protected. This means that you can exhibit your photos of recognizable people in galleries, public fairs, photo contests, and coffee table books (or books of any sort, so long as it's not one that's distributed with a product, like a camera's manual). In fact, art can be printed without a release, regardless of the medium in which it is printed. You can also sell these pieces because, as you may recall from Model Release Primer, profit has nothing to do with whether a release is required.

With most forms of art (such as all of those mentioned above), the question of "advocacy" is rarely a problem. However, you start to get to gray zones when you want to make an association, but try to hide it. Political and religious groups run into this problem a lot, but increasingly, many non-profits do too. They believe that because of their non-profit status, that their "cause" is not commercial in nature. This is far from the truth, and has caused many to get in trouble.

Publishing photos of recognizable people in editorial books (which includes almost all books) never requires releases (though publishers often ask for them anyway, for reasons discussed in Model Release Primer.) It was thought at one time that the one exception is a book cover, which was considered commercial in nature because it's considered the part that "sells the book." But it turns out this isn't true either. This is according to the 11th Circuit court, which ruled on July 18, 2006, "amazon.com did not violate a person's right to privacy or commerce simply because the photo was used as the cover of the book, and that amazon.com displayed it on their website." (The court case and the circuit's opinion is written here.)

The exception to when "art" isn't really art, brings us back to the example where you have a portrait studio in a shopping mall. Remember my point about posting a photo of someone in the store to demonstrate your work? That's a commercial use because you are promoting your business. Here, the photo—or "art" in one of its forms—is being used in a commercial context because it is very specific to the nature of the business. This is quite different than a restaurant, where artwork is not so clearly a part of the establishment's "business model." Here, it's more widely accepted as being part of the decor. (One can argue that decisions to eat at a place aren't based on its artwork.) What's more, it is generally accepted that eating establishments have always been venues for art. This de facto standard has been established long ago, and courts usually uphold such traditions.

Promenade Nite Cityscape Opera House Panoramic
(Sydney, Australia)

Art exhibits—and indeed, the sales of photos as artwork—are exempt from requiring a release from subjects that happen to be portrayed. Courts have decided repeatedly on this matter, including those situations where other potential conflicts may be intertwined. See this article for a case in point.

However, an exception may apply if the exhibit were displayed in, or underwritten by, an organization in a way that would make the exhibit appear to be more of an advertisement than an actual art exhibit. For example, American Express, the credit card company, once sponsored an exhibit of photographs from Annie Liebovitz, where her portraits of famous people were portrayed. Under each one was a copy of an expired American Express card that was once held by that particular celebrity. Clearly, the exhibit was intended to promote the card, so model releases would be required from each of the celebrities.

A less clear case would be if there were an art exhibit sponsored with an effort to raise money for AIDS research. Here, the legality isn't so much the case as whether it would be in good taste to exhibit photos of people who may not want to be affiliated with the cause, or associated with the disease. Someone who wanted to bring a case would probably have many positions from which to launch. The lesson again is, don't oversimplify. You need to look at the broader context and think objectively.