Model Releases: What Commercial Photographers Need to Know

by Sheri_Oz

Confused about whether or not you can take that photo? Confused about whether or not you can sell it? So was I. Let me help you sort it out.

In our new online world, aspiring photographers can offer the fruits of their digital labors to stock photo sites or can use their images to design a myriad of print-on-demand products on sites such as Zazzle. In my enthusiasm, I began taking photos of everything and anything and submitting them to different sites. I am happy to say that a number of my photos were accepted by dreamstime, a stock photo site, but the most interesting part was why some were rejected. The technical rejections are not relevant to this article, but two other reasons are:

Firstly, they requested model releases for those photos in which a person is recognizable. Secondly, they asked me to either edit out trademarks that appeared on the photos or just not submit them in the first place.

In one of my shoots, a security guard came running out of the building I was photographing, telling me I could not take any pictures of it because the building was protected by copyright. He threatened to call the police. I thought he was wrong, but he sufficiently intimidated me that I moved on.

What is the story here? When do we need permission to take photographs and when do we not? Do we need model releases? This is the first of a two-article series in which I discuss these questions and provide some answers. The link to the second article is on the sidebar.

(Thumbnail photo of model from: PublicDomainPictures.net)

My Personal Indemnity Clause

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.)

Guideline One: You CAN photograph anything you want to.

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.

Guideline Two: Expectation of Privacy

While people in their own homes expect privacy and can forbid you from taking their picture, out in public people can have no expectation of privacy. That means that you can photograph anyone you want to in public places. That also means that that person can get upset and angry at you and ask you to stop. I hope if you are asked to stop that you will stop.

Can you use candid shots of people commercially? This area is determined by publicity laws that state that an individual has the right to how their likeness is being used if it is being employed to promote ideas, products or services. More on this below.

Guideline Three: Photographer as Seller versus Publisher

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 . . .

A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Ph...

This book was written for the photographer who sells photos to publishers. It is less useful for photographers who are, themselves, publishers of their own photos. Read all the critiques on Amazon before you buy.

View on Amazon

Guideline Four: Photography as Art

Art is considered a vital contribution to the cultural life of human society. Photography has become widely recognized as an art-form. Therefore, photos of people in public places can be works of art. As such, there may be no need for signed model release forms.

It does not mean that an individual might not decide to sue the photographer-artist for using his or her image without asking permission. My legal consultant explained to me that, while the law is dry, the court is not necessarily so. Judges consider the aspects of harm done to the individual versus benefit to society. Since art is considered highly beneficial, as long as the photo does not demean or humiliate the individual, it is possible that art will outweigh the individual complaint.

It may not possible to stop people to ask them to sign a release form and if this was required for every piece of art-photography, the world would lose out on some very important pieces of art, such as can be seen in the book to the right (in spite of the fact that the cover shows a staged rather than spontaneous photo).

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.

Guideline Five: Using Photographs to Promote Ideas, Products or Services

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.

Join me on dreamstime stock photo site

Royalty Free Images

Guideline Six: A Creative Way to Deal With Lack of Model Release

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.

Guideline Seven: Use of Photos for Editorial Purposes

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.

A Word to the Wise

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.

What Will Be Covered in The Next Article in This Series

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

Updated: 05/28/2014, Sheri_Oz
 
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Mira on 05/30/2014

Well, I don't know about my questions being terrific (but thanks), but your answers are wonderful. Re 1, I think the letter is a great idea! 2. Great answer here as well. Never thought of it this way. It may make sense to enter photo contests then because it will impact all your output, and you can then use images on mugs, etc. So thank you for this idea! 3. You have a good point there too, but I somehow think the house should be off-limits. You do want some light in the house, after all. But I can see how you can't implement anything along those lines, or else you wouldn't be able to use any photos of buildings at all (assuming there are some windows and people close to them)!
Thank you very much for the discussion and for your great answers!

Sheri_Oz on 05/30/2014

Mira - regarding your comment about the photos taken through a window from the outside, but showing people in their homes. I have read that as long as you can see through the window from the street, without entering the property, then people cannot have an expectation of privacy. If they want privacy, they can close their curtains. Again, as long as the photos are not demeaning, it should be okay.

Sheri_Oz on 05/30/2014

Mira - about your second question, and how to determine if something is art or not. I think it would need a consensus of peers - does the person participate in workshops for artists? Does the person belong to an online forum of artists and contribute to discussion in a meaningful way? Has the person's material been exhibited in a brick-and-mortar gallery or has it been accepted onto an online artist-oriented site that is selective regarding the material they accept?
Personally, while I have photos that have been accepted by a stock photo site, that cannot count toward me being an artist because stock photos are commercial photos. However, on a public domain photo website, I won 3rd prize in a photo contest and that might count toward me being regarded as an artist. I think you need something solid to show that you somehow merit the title, artist. What do you think?

Sheri_Oz on 05/30/2014

Mira - these are terrific questions. I'll each each separately, just to keep things straight in my own mind.
1 - Regarding royalties to a charitable organization - I think, actually, this can get quite sticky. If people heard about it, they might feel used and say they don't want the money and they don't agree to the photos. But that is the nature of art photography - the person photographed will likely not win a suit (as has already been tested in court) unless the photo is demeaning. I always wondered about one particular young woman whose photo first appeared in National Geographic and then was sold all over the place on posters. I don't think she ever saw any money from the sales, nor did her tribe or village. I, personally, would feel better, if one of my photos became very successful, to go back and give royalties either to the family or an organization in the community, with a letter clearly stating that these were a percentage of the profits from the sale of prints/posters/etc and that it is my way of giving back to the community that provided the opportunity to make a piece of art..That letter should be all that is needed to make a connection between the two.

Mira on 05/30/2014

I enjoyed your article and have two questions.
1. If you pay royalties to a charitable organization, how do you connect those royalties to the photos taken of some people in that area?
2. If you take a photo and treat it like a work your art yourself, how do you know courts will see it that way too? I never found a satisfactory answer myself as to what constitutes art. So you may go ahead and put it on a mug, and eventually get in trouble.

As for the expectation of privacy (and the question of what constitutes art), just as a side note, I read an article once about a photographer in New York (I think) who photographed people in their home for a month (I think) through the window, and presented the photos as art. Was that art? And was that ok? Courts were still debating on it. I think the issue was going to an appeals court.

Sheri_Oz on 05/27/2014

Thanks, Pam. It is very important to use original photos and the commercial photographer needs to know what is allowed and not allowed in their own photographs.

dustytoes on 05/27/2014

This is a very interesting article Sheri. I have learned over the years what Zazzle will not accept, which has contributed to my knowing how to use pictures taken by others. I use my own photos whenever I can, which also makes them original.

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