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You Are Here:  Home  >  FAQ  >  Blogs  >  Personal Privacy and Model Releases

Personal Privacy and Model Releases

Saturday, April 12, 2008

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You're a photographer. A couple hires you to shoot their wedding. Now what? Who owns that photo? What rights do the individuals (you and the couple) have to publishing that photo?

Normally, service photographers don't really care about the answers to these questions, since they tend to focus their energies (and revenue streams) on simply the hourly rate (or fixed "project" rate) of shooting pictures for their clients. They shoot, they hand it all over, and move onto the next client.

But an increasing number of such photographers are looking to sell their inventory of images as stock photography—the practice of licensing images to others who publish them in some context: an announcement about the wedding itself, an article about weddings in general, the cover of Brides Magazine, or for an advertisement.

Many photographers are aware that, to publish these photos for advertising, a model release would be required. (The photographer obtains the release on behalf of the user that publishes the image. See this article for details.) So, for a buyer to publish these images, you will have had to obtain a model release from the couple at the time of the wedding. (Or, you could go back and get it later.)

At the same time, photographers are also aware that model releases are not required for editorial uses, such as newspapers and magazine stories. Most of the time, that basic assumption is true. But what if the wedding couple didn't want their picture published in any way for any reason? Clearly, they would refuse to sign a model release. But since editorial publication does not require a model release, are you still allowed to license photos of this wedding to a newspaper? Do they have a right to stop you? What if you licensed the photos to the newspaper anyway? Do they have a claim against you?

At the same time, consider these examples:
  1. You're an equestrian photographer on a "farm call" to photograph a horse at the owner's stable.
  2. You're an art photographer and you're at an artist's studio to shoot a few pictures of his latest sculpture that he will send to his agent, who will then send them to magazines for a press release.
  3. You're a portrait photographer and own a studio at the local mall. A client comes in to have pictures taken of him so he can distribute them to potential modeling agencies.
  4. You're a press photographer, and develop a special relationship with a congressional candidate, who invites you to the family estate to photograph the clan for a memoir they intend to publish about the personal tolls that political life can have on a family.

The scenarios I listed above were specifically designed to illustrate a unique, but not uncommon scenario, where the subject specifically invited (or hired) the photographer to photograph them so they could use the photos for their own personal uses. This is not the same as candid photos taken in public. They are hiring you to take pictures that they could have taken themselves by putting a camera on a tripod. Their photos for their own use.

These scenarios illustrate sets of conditions where the subjects have not necessarily waived their rights to privacy. Without a bit more information about the intentions of the people whose photos have been taken, there is an ambiguous state as to whether you are permitted to license these photos to anyone, even to a newspaper.

Copyrights vs. "Right to Publish"
All photos begin and remain "owned" by whoever took the photo, with the one exception where a "work-for-hire" contract is signed by the photographer. Unless such a contract is signed, all photos taken by whoever presses the shutter butter are "owned" by that person. This is basic copyright law. That someone else happens to pay the photographer has nothing to do with the copyright ownership.

However, the "right to publish" is different. If the photo is a picture of a person, then that right remains with that person, irrespective of who owns the actual photo (or its copyright). Physical possession has nothing to do with it either.

Many people are unaware of these subtle nuances. Sadly, photographers are equally misinformed. But even if they are, it's often a struggle getting their clients to understand this as well. So there's often a major struggle between photographers and subjects on who owns the image, what rights people have to publish them, and so on. It only gets worse when the photographer's rights permit uses that the subject doesn't like or want.

The purpose of a model release is to establish an understanding between the parties to avoid these conflicts. And this is where we come full circle: if the subject doesn't sign a model release, what rights remain with the photographer to license these photos for editorial purposes, which normally do not require releases? If the photos were taken in public without the subject's awareness, there's no question about it: the photographer can license all he likes to editorial publications without permission from the subject.

But if the subject specifically invited the photographer to shoot the pictures in a context by which there was a "presumed assumption of privacy," then the photos may not be eligible for publication without his consent. But it isn't quite black and white, which is where this article begins.

Legal Foundations
To understand this properly, let's review the legal doctrines that govern two competing interests: that of "personal privacy," and that of "freedom of the press." We all value privacy, such as sitting in our own homes. But privacy extends to many aspects of life: the private profile information we provide on a website, or the things we search for on the internet, or our health records at the doctor.

At the same time, we value freedom of the press, where people have the right to information that may be important for people to know, even if it is not beneficial to the people being reported on. We need to know if our legal representatives are truthful, if our bosses (or employees) are acting ethically, or that we can enjoy the freedom to express our opinions.

As you can imagine, not everyone is going to agree on whether any given "event" is newsworthy, or any given statement is in the public interest. This is not easy. But generally stated, courts have traditionally weighed in favor of the doctrine where opinions can be expressed in publications. This why we can mock politicians on TV and the internet, make fun of products and services (even using their names and logos), or report on behaviors and actions that are deemed "newsworthy." In such cases where individuals are involved, people waive their rights to privacy if, for example, their photos are taken—say, because they got married.

Rather than go into the weeds on this big subject, let's stick to conditions involving photographs and editorial publications. Privacy laws can protect people's rights in ways that supersede editorial newsworthiness for some scenarios. Being in your own home, for example. A photographer cannot take your picture there without your permission. It's not the fact that you're on private property, it's the fact that it is a particular condition in which a person has a right to privacy over other considerations. We all do things in our own home that would be embarrassing if photos were published. Being in our underwear is a simple, 'G'-rated example. Your imagination can wander into other MPAA ratings and see where this is going.

Yes, this right to privacy is pretty powerful, and often surprises and offends many people who look at things in simple black and white terms. For example, what if you take a picture of someone killing someone else in their own home? Surely, this is newsworthy, right? True, but it's after the fact. If no murder took place, why were you there taking pictures? The constitutional right to privacy keeps people—even the government (which includes the police)—from taking your picture in some situations. And people have determined a long time ago (with few objections) that we do not want to give anyone the right to simply monitor us without cause.

It's the "cause" that might provide an exception to the rule. We want to preserve safety and other matters of public interest, so we give the police (and other government agencies) the right to penetrate those privacy laws if it serves the public interest. Here, the police can get permission from a judge to place surveillance cameras on a property if they provide evidence to suggest a crime may take place. As you probably know, credible and incriminating evidence is thrown out of court cases all the time because police did not get such permission.

Balancing the rights of individuals and that of the public good is a difficult and messy business.

So, what does all this have to do with a wedding photographer giving photos to a newspaper? "Privacy." There are some conditions where people have a right to privacy, and other conditions where people waive their right to privacy. Sometimes it's black and white, but sometimes, it's a murkier shade of gray.

As we move forward, however, let's understand that the photos we're referring to only apply towards people or objects that can be subject to copyright (like a work of art). If the photo doesn't involve these things, or if the content of the photo does not compromise one's privacy or imply facts that the subject does not want to be known, then these photos are not protected by privacy laws. So, if the photo is a scenic and generic image, or of a common farm animal, or of a building, these images are not affected by privacy laws unless the nature of the photo would imply a fact that would violate a person's privacy. This should make more sense as the topic evolves.

Reasonable Expectations
Limiting the discussion to photographs, we ask the question, "Is the set of conditions such that you could be photographed?" In one's own home, one has a right to prevent photography. But what if someone hires a photographer to come in and take their picture? Do they then waive their right to privacy? No. But here's where the slippery slope begins.

Here's how you need to think about privacy laws as it pertains to photography and licensing rights:

  1. Does there exist "a reasonable expectation that one could be photographed by the general public without the person's knowledge"?
  2. What is the relationship between the photographer and the subject?
  3. How much "orchestration" was necessary in order to capture the photo?

Each of these can steepen that slippery slope where the right to privacy may or may not supersede freedom of the press. So let's address them individually.

The first item is the most important because it lies at that pivotal dividing line between personal rights and that of the First Amendment (which affects freedom of the press). The question is, is there a reasonable expectation that you could be photographed without your knowledge? When at home, you can expect that your privacy is protected from such photography. But outside your home, this is the pivotal question.

Many people think that private property is exempt, assuming that personal privacy is preserved on private property. That is no such connection. An amusement park, a bar, a zoo, your swimming club, your golf course, your church—these are all private properties in that they are not government domain, such as public streets or national parks. The key point is that the general public can come, armed with cameras, and there is a reasonable expectation that your picture could be taken by one of these people without your knowledge. Hence, everyone on the premises has waived certain rights of privacy insofar as their photos being taken by others, even though the property is "private."

So, again, it's the expectation factor. At home, your "expectation" is that you will not be photographed. Outside your home, that expectation cannot be guaranteed.

So, what are reasonable expectations? For example, let's say you're at a concert where photography is strictly prohibited: signs are everywhere, and it's printed on a ticket stub. Does this preserve one's "expectation" that they could be photographed? Not quite. Just because a venue may say there are prohibitions, doesn't necessarily mean the expectation goes away. And you certainly never rely on your opinion that people shouldn't be taking pictures. If the rule is not enforced, and people are copiously shooting away without intervention, the expectation that you could be photographed still exists.

If you were photographed dancing in your underwear with a pink bow in your hair, and this is published in the newspaper, causing you to lose your job as the CEO of the company that sells only blue bows, you cannot sue the photographer on the grounds that your privacy was violated. The judge is going to take into account that everyone was taking pictures, whether they were allowed to or not. You'll have to answer why you didn't just leave when you had the chance, or at least wear a blue bow in your hair. Surely, you should be concerned about your job if it was clear photos were being taken.

So, private property is inconsequential, as are notices of "no photography," because it all comes down to "expectations." Everyone's behaviors, witnessed or acted upon, are the byproducts of expectations.

Photographer-Subject Relationship
When it comes to a photographer and his subject, these expectations get beyond just the environment, but the relationship. Another way of saying this is the understanding between the photographer and the subject.

To illustrate, consider the scenarios listed earlier: the wedding photographer, the equestrian photographer on a farm call, a photographer shooting an artists' new work, a portrait photographer, or even a press photographer. In each case, the people being photographed asked the photographer to do so because they wanted the pictures for their own, personal uses. Insofar as the photos of the people are involved—not any other photos—the subject of "privacy" is only applicable if the understanding is that the images are being taken for the subject's personal use only. Just because there was a direct invitation to the photographer by the subject, does not necessarily imply that the subject has waived his privacy rights. Thus, the photographer's use of any photos of that person may require consent (in the form of a model release) for editorial publication.

Why am I being ambiguous about whether the right to privacy may have been waived or that a release may be required? Because what is still unknown is the understanding between the photographer and the subject about the use of these pictures. If the subject specifically says, "I am asking you to take these pictures and not publish them anywhere," then he has explicitly preserved his right to privacy for those specific photos. Even if they are on public property and bystanders can take pictures, that specific directive by the subject to that one photographer stands.

Now, it's presumed that if the photographer doesn't agree, then the subject probably won't "pose" or do whatever it is he intended to do for the photos that were about to be taken. It's also unlikely that the subject wouldn't actually go out into the public where other people are not under his control and could take his picture. While I may be drifting into unlikely scenarios here, the point is to illustrate that it's the implied understanding between the subject and the photographer that a judge is going to look for if a dispute arises.

Note that this does not affect copyright status—the subject is not suddenly the owner of the photos, nor does the relationship imply a work-for-hire scenario. This is strictly a matter of privacy, which affects the rights of the individual to control whether those photos can be made available to others. Copyright has nothing to do with this.

The understanding between the photographer and the subject is critical when assessing matters of privacy. As a general matter of logic, if privacy is a concern, then the subject will likely say something to the photographer. Clearly, the stronger the concern, the more assertive the subject will be. For example, he may have the photographer sign an agreement ahead of time. But this isn't necessarily done, or required. Even a passive verbal statement is sufficient. This is often the case between a hired model and a photographer. If the model says not to publish the photos, then the model has not waived the right to privacy. The more concerned the model is (or the more professional), the more likely this will be written. But again, it's not necessarily required. Of course, we all know that the "verbal" instruction is harder to claim in court—the photographer could deny it. But then this is where people bring up emails and other supporting evidence. Yes, it can get ugly.

It's the general set of circumstances that judges look for to determine whether there are reasonable expectations of privacy.

What's further interesting is that the strength of legal cases around these types of disputes have been decided on the weight of another factor involved: "orchestration."

Here, the more involved the photographer and subject are in coordinating how photos are taken, the less the subject is truly acting on his own accord, or in a manner that would accurately depict his nature. Therefore, the less likely it is that he is waving his right to privacy. While this feels like a huge stretch of the imagination, it will make more sense in a moment. But first, remember the rule: a subject waives his rights of privacy if he can be photographed without his knowledge. Clearly, if the person is unaware he's being photographed, his actions are of on his own free will, and anyone that witnesses such acts in a public space is entitled to publish photos of them in an editorial context. But, if the subject is directed in a controlled situation, he is no longer acting on his own accord—he's doing what he's told to do—so photos of him may not necessarily be representative of him. Even if he's agreeing to be photographed, he can still be misrepresented if the photos are published out of context.

If someone is asked to pose with a can of beer in his hand, and that photo shows up in the newspaper, and it turns out he's on probation, his parole officer and others may want to have a few words with him. This is an example where someone's personal or professional life can be harmed by his photo being published in a manner he didn't expect. It's not the newspaper's fault—they might not have known, and they aren't supposed to care whether a release is signed. Instead, it's the photographer's fault for having horrible luck. Good press photographers know that they shouldn't pose subjects in ways that might cause such situations to happen.

Now, understand that this is purely hypothetical, and real-world situations are more likely to be gray. For example, just because you ask someone to pose for a picture doesn't necessarily imply a level of orchestration that would get someone into trouble. You're still safe if you ask someone to wave, or stand next to a building, or even spend considerable time with various positioning. Still, you can see that each of these progressive acts lead into that gray area; the point at which you cross into the "privacy" zone is rarely clear and has to be evaluated on a case-by-case basis.

Example for Consideration
With that background, let's pull together all three of the checklist items, and consider a case that involves them all: you're hired by a restaurant to photograph the dining room with people eating. Here's a complicated situation because we have many people involved, a variety of conditions, and possibly some "direction" by you to the patrons.

First, unlike the restaurant owner, the diners have no relationship to you at all, so the first question remains the most important: "is there a reasonable expectation that they could be photographed without their knowledge?" If you're there taking pictures, chances are you are quite visible, so there's a reasonable expectation by the diners that they could be photographed. They also have a chance to leave, or to object. Assuming they stay, then the clients have waived their privacy rights, and you can license the photos (without releases) to a publication who may publish them in an editorial context. Say, in a newspaper reviewing this restaurant.

Next is the question of "orchestration." Are you simply photographing the room, or are you having people pose for you? Is it a simple shot, or are you directing a man and a woman (who don't know each other) to clink their glasses together and gaze into the camera? Are you adjusting the smile? Fixing hair? The more you get into these actions, the more likely it is that your orchestration begins to threaten their rights of privacy if these photos were published without a release, even in editorial contexts. You haven't violated anything by taking pictures; it's the publication of them (or the licensing of them to someone else who can publish them) that could get you into trouble if it turned out that you're asking people to do more than act naturally. Again, they'd have to be doing something that genuinely gets them into trouble if those photos somehow misrepresent them, even if you had no prior knowledge.

Assuming there is no orchestration, and that people were aware that they were being photographed, you can license these photos for editorial purposes to any buyer.

Oh, Wait! Had you forgotten that it was the restaurant owner that hired you? He's the one that wants to use the photos. Is he aware of all these issues? Probably not at all. But, as the hired photographer, do you have to be aware of them? Or is the client in trouble? The ultimate question here is who provided the photos to the publication that printed them?

Most photographers are now thinking, "just have everyone sign releases." Technically, this is true—signed releases will almost assuredly remove the risk. But in the real-world, that could cause more trouble than it's worth. Diners don't want to be bothered with that as a group, and if there are a lot of them, it may take more time than you want to deal with. Do you would really only want to do that with people with whom you've given direction?

Still, it would be a good idea for those to whom you've given direction. That will also allow the restaurant owner to use the photos for commercial uses. But, note that model releases are not required from people who are simply part of a scene, even if they are recognizable, and even if the use is commercial (advertising or brochures). What triggers the need for a release in a commercial use is if the people appear to be "advocates or sponsors." So, if one of the pictures you took is of a couple clinking their glasses looking directly into the lens, and the picture is clearly on them, they would have to sign a release for the restaurant to use their photos. On the other hand, a wide-shot photo of the entire room with everyone eating at their tables (not looking at the camera), none of these people would need to sign a release. This applies to both the commercial and editorial uses by either you or the restaurant owner.

Got all that? Well, we're not quite done yet. There's one more important factor in the "relationship" section that hasn't yet been brought up. The photographer asking the subject to participate in a photo shoot. This is where the roles are reversed from each of the scenarios discussed so far, where the subject asked the photographer to photograph him.

Let's assume a scenario where you call a farm and ask if you can bring a group of photographers (perhaps students) to do a photo session of the owner and his horses? This is a subtle but important difference that could change the entire landscape of whether releases would be required for editorial uses.

The first question to ask is, "what is the purpose of those photos?" If the subject hired the photographer, he knows what the photos are for, and his expectations about how they are used have been set. If the pictures were to later show up in the paper, it would be a dramatic difference to his expectations than if you asked the subject to photograph him. Here, his expectations of the photos are simply undefined, and this subtle difference weighs very strongly insofar as determining whether his privacy rights have been violated. For instance, he'd have an easier case to make if he could say to the judge, "I hired the guy to photograph me and my horses so I could have prints—imagine my surprise when they showed up in the paper." This is a stronger case than if he said, "These guys asked if they could take pictures of me, and a few weeks later, there I am in the paper." Here, the difference in the preconceived expectations carries weight as to whether the farmer's personal privacy has been violated.

Again, individual cass can be argued, but I illustrate the difference here because one scenario is a stronger case than the other. And when you factor in other instance-specific details, the pendulum has a tendency to swing in unexpected directions quite easily.

The final thing to discuss is a matter of "contracts." Some photo assignments (such as wedding shoot or other major exchange of money and services) involve contracts. One such contract is called "work-for-hire", which, by definition of copyright law, means that the photos aren't even yours in the first place. You have to hand them over to whoever hired you, and you're done. You have no rights to or legal access to those photos (unless, of course, the client chooses to let you have them).

Assuming it is not a work-for-hire contract, the client's own use of the photos are limited to personal use only. I had mentioned in several of the examples that the clients were going to publish the photos in some form. Technically, because you own the copyright to the photos, the client cannot publish them at all without permission from you. Assuming that it was the client's intention to publish them, we can assume that the contract specifically stipulated the right to use the pictures for the stated uses. However, just because the client can use the pictures in the manner stated, it does not affect your use of the photos insofar as the model release requirements are concerned. That is, if you performed a portrait session with a client who had you sign a contract saying that he's going to provide these photos to a stock agency who will license them, he has the right to provide them to the agency because it was written into the contract. You don't, unless you have a model release from him. Otherwise, you've violated his privacy rights because he came to you to get his pictures taken.

One might think that if you don't own the photos, then anything that happens with those photos is not your responsibility. You were merely a hired hand. That may potentially be true, but you should still be careful in how you orchestrate people if you don't get a release. The more you deal with them, the better off you are in having that release. But, this too has its caveats: if you do not orchestrate anyone in any way, then having a release could present a real risk.

For example, let's say you took a candid photo of a guy drinking a beer at a public event. Then you asked him to sign a release. You then license the photo to the newspaper doing a story on the event. If he was on parole and wasn't supposed to be drinking, and he gets into trouble because your photo of him drinking is now in the paper, he's going to try to sue someone. If you had any exchange with him—such as your asking him to sign a release—his lawyer might try to claim that you orchestrated the scene and had him sign a release in an attempt to absolve yourself of responsibility. True, the release would give you the right to license the picture, and you're probably not going to get into trouble, but on the other hand, the fact that you talked to the guy in the first place opened you up to the inquisition. Had you just shot the picture and left it at that, the guy's lawyer wouldn't have barked up.

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