Tess in the Virgin Islands during photography workshop.
The need for model releases are often brought up in Internet forums, and unfortunately information on model releases on the Internet are often misleading, especially on model and photographer Internet forums. This often makes me wonder, how some photographers and models enter into shooting sessions clueless about the truth when it comes to their professions? And it’s not limited to the amateurs, professionals alike often fall into this category due to their own misconceptions.
Many photographers and models, in addition to other creatives, fall into the trap of confusing releases with copyright law—when in fact copyright laws are designed to protect the publication or misuse of someone’s images, normally a photographer’s photos, by others without the original creator’s (normally the photographer’s) permission.
Model releases are generally designed to protect the photographer, not the unauthorized publication of a photo without the photographer’s consent. A photographer needs the release from a model because the release grants the photographer rights to use the “likeness’ of the identifiable subject/model. Model release requirements vary from state to state. In reality, model releases are legal contracts allowing photographers to use the likeness of a person in the photographer’s photo for commercial gain—it’s a binding contract between two parties.
Commercial gain doesn’t have to be specifically a monetary gain, and this is one area photographers fail to understand. If a photograph is posted of a model on a photographer’s public portfolio on the Internet, or even a print of that same image hung in the photographer’s studio, a model release is generally required because the photographer tends to make some type of gain, including the gain of a new client, a new subject, or the viewing pleasure of a potential client—an advertisement of that photographer’s skills.
When in doubt, always secure a model release. There are a few times were a model release is not required, such as editorial use for publication in a news feature or news story—provided there is no invasion of privacy. However, once an image is used to promote anything for value, it then becomes commercial use and the photographer needs to secure a release from the model in the photos for their own protection., sometimes a more specific use release is more appropriate too.
In a nutshell, a photographer owns the image as soon as the shutter is released from their camera (copyright law) but the person in the image owns their likeness (civil law). And even some states have specific requirements on ages that a model can legally sign a release, especially if nudity is involved. Not every state requires that a model be a minimum of 18-years of age to sign a release, some states require higher ages for a release to be valid in that state of jurisdiction.
As a rule of thumb, always get a model to sign a release before a shoot if you feel your images have some commercial value or future commercial use. If there is any nudity involved, always have two forms of your subject’s identification, at least one in color and government issued, and photograph the subject holding those two ID’s, crop tight so the ID’s are next to your subject’s face and are readable. Print one copy of that image and staple it to the model release. Save a digital copy in your folder/directory of images for that model. When in doubt, always consult a lawyer. Never settle for “promotional” releases, these are about as good as toilet paper.
How does this work with photojournalism? Did Steve Mccurry obtain written permission to use, say, his famous Afghan girl’s image? If so, how is this generally done? Does vary by country? When I travel I always ask permission to shoot a \candid\ – but it is impractical and sometimes impossible to get a written release. Thanks!
Vince brings up a good point – actually several in one package. In the US it comes down to use, intent and context. According to PPA and ASMP (and I am generalizing here) there is distinction between a photograph that is used for journalistic purposes and one that is intended for commercial purposes. For example, someone takes a photograph of Paris Hilton (sorry, couldn’t think of anyone else) leaving a night club and sells it to The World Tattler newspaper. The Tattler publishes it with a caption about her being seen leaving a night club (note the name of the night club is not in evidence). That is photojournalism and no release is required.
However, let’s say that the picture is sold to the night club and they run an advertisement in The Tattler alluding to the fact that Paris Hilton is (was) a patron. That requires a release.
There is a third, much trickier area wherein an image becomes “iconic” – as in the image is so well known that it is essentially public domain. Take the picture of Einstien sticking out his tongue as an example. Copyright issues tend to supersede the legalities around a release. This is a very gray area.
PPA and ASMP have very detailed information on Model Releases and have recommended forms. If you are serious about selling your photography, you should research the issue on their sites.
Thanks, Phoenix! I will look into both sources. I learned today that three of my photos taken in Cairo – two street scenes and a closeup of a street vendor – will be used on the covers and inside plate of an upcoming book. That makes it doubly important to insure I’m doing it right. Many thanks!!