Model Releases: What Commercial Photographers Need to Know

I AM NOT A LAWYER. Therefore, this article cannot be considered legal advice, just a guide to what is known about the topic. If you need specific legal advice, turn to a lawyer specializing in intellectual property rights law.When I got confused by what I was finding on the web, I did just that.

This article incorporates a lot about what he taught me. (I cannot give him credit because he is prohibited from appearing to even indirectly promote his services - just want you to know how valuable his consultation was for me.)

The problem is not in the taking of the photograph but in the use that is made of it.

Here is how this became clear to me: I attended a Salvador Dali exhibition with the hope that I would be able to take photos of drawings, paintings and sculpture and then use these in the design of postcards and perhaps posters. I was afraid photography would not be allowed in the exhibit. Therefore, you can imagine how thrilled I was when I got there and discovered that everyone was taking photographs. Feeling justified, I took some excellent images that were perfect for my purposes.

However, after I published them on zazzle, I found they disappeared very soon afterward and in response to my inquiry letter, I was informed that the copyright on Dali's works was renewed by his estate and therefore photos taken cannot be used commercially.

So a lesson was learned - you can take any photograph you want to take for your own personal purposes. If you want to use the images commercially, however, there are laws that limit your use of some photos.

We need to distinguish between the photographer who sells photographs to publishers and photographers who publish the photographs themselves, such as on zazzle products, books they write and self-publish, etc. It is the publisher who determines the use of the photo and therefore the publisher who needs to be aware of the legal aspects involved.

When a photographer sells images, according to Heller (author of the book shown below), he or she has no obligation beyond assuring the buyer that the photos are legally his or hers to sell. He suggests that the best answer a photographer can give to buyers who ask about legal aspects of use of the photograph is to send them to their own lawyers. You do not want to give a wrong answer in this amazingly complex area of law because your naive attempts to help can make you liable if things go wrong later on, especially if the publisher ends up using the photographs differently than what you were led to believe.

If you are publishing your photographs yourself, of course, then you need to understand the legal aspects in order to keep yourself safe from prosecution.

After my consultation with a lawyer specializing in Intellectual Property Law, I now understand that as soon as photographers sell their photos, they have already commercialized their product in a way and, therefore, should be aware of the legal aspects regarding commercial use of people's likenesses. However, it is a complex issue. Let us move on . . .

Furthermore, artists need to sell their work to survive. Some do have other jobs that pay their rent, etc., but this is only until the happy day when they can support themselves on their art income. This in no way diminishes the value of their artwork to a society that wants to encourage cultural endeavors.

Keep in mind, as well, that art galleries sell various products featuring famous pieces of art that can be found in their collections. Thus, artwork can be found on mugs, greeting cards, posters, mouse pads, towels, and other products. This is one way of making good art accessible to a greater number of people.

Photographs can be used to promote ideas, such as on websites devoted to a political party, prevention of disease, family violence, healthy life-styles, etc. They can be used to advertise products or services in magazines, newspapers, mailings, TV commercials, billboards, affiliate websites, etc. In fact, stock photo websites are gaining traction in the growing lucrative market of providing the vast number of images required to feed the online industries needing them.

When models are paid and they know the use to which the photographs will be put and have signed a release form, there is no problem. However, the same may not be true of naive individuals who happen to cross the range of your lens when you are out on a shoot. Similarly, even the individual who knows their photo is being uploaded to a stock photo site cannot know, as the photographer cannot, to what uses their likenesses will be put. Most stock photo sites restrict the use of their photos to those not involving or promoting criminal activity or pornography.

Over a year ago, I wrote an article on life-sentences for minors. I wanted images to accompany the article as these make the reading more interesting and eye-catching, as well as helping the reader focus on the innocence of the child. I found a wonderful photo of a child that had been released to the public domain by a grandmother. In spite of the photo being in the public domain, I did not want her to chance upon it in my article and be upset that her grandson was being associated with child murderers. I had no obligation to do anything, but I sent her an email and explained the use to which her photo was going to be put. She wrote me back a lovely mail saying she was pleased that her photo would be associated with helping kids. Had she asked me not to use the photo, I would have complied and continued my search. Her positive response reinforced this approach as the most ethical way to go, even if not strictly demanded legally.

In the same way, I think we must be careful when we use our own photographs including people. Is the photograph a work of art? Are we using the image to promote an idea or product that is totally unconnected with the context in which we took the photograph? These are questions that may have legal import, and also ethical questions with which one should contend, in my opinion.

Credit for this idea goes to my legal consultant (I must admit, however, that I had a half-baked idea similar to this before seeing him, yet he fleshed it out for me):  why not offer royalties to the people in the photo? Royalties could either be offered to the individual, if that person is traceable, or to an organization that might be related to the context in which you photographed the individual.

If you are in a country where the people do not speak your language or would not understand what you are asking even if they do, you cannot get signed model release forms. For example, in some countries, because of legitimate fear of secret police and authority, individuals may run off terrified if you ask them to sign a piece of paper. That might turn an otherwise enjoyable exchange, where they are happy to see their images on your camera screen, into a frightening experience not easily forgotten. In this case, you might consider approaching a local charity or local government office and offer them a proportion of the earnings from the sale of your photos as a charitable donation. Ask for a receipt and this may also be a tax-deductible expense for you.

Such an idea may not be operable in all situations but it is something to consider. I, personally, like the idea of giving something back when I have received something.

Use of a model release can be forgone if the photo is classified for Editorial use rather than Commercial use. Editorial use means that it is placed in an article that is newsworthy, educational or of public interest, as opposed to advertisement of a product or service. The use of the image is to support the context of the article.

Both Getty and dreamstime websites insist that if the article is about a sensitive subject (such as mental health or sexuality) a clear statement indicating that the photo is for illustrative purposes only must be added. This helps protect the individuals who did not sign model release forms for their images to be used online.

An excellent summary of the differences between Editorial and Commercial use of images can be found on the Getty website. It can serve as a guide for photographers who want to use their own photos of people on their websites, blogs and articles posted onto sites such as Wizzley.

Since the issues are so complex and vary from jurisdiction to jurisdiction, you should consult with a lawyer specializing in Intellectual Property Law regarding your particular use of photos you took with people in them. The money you pay up front for consultation may save you much more money down the road.

The second in this two-article series will discuss the need for property releases and the issue of photographing sculptures that are located in public places. It will conclude with a discussion of the economic nature of suits filed claiming copyright infringement and improper use of photographs of people:

Sculpture and Building Copyright: What the Commercial Photographer Needs to Know