“Do I need a model release?” It’s a simple question that is deceptively complex. Depending on how a photograph is used, a release isn’t always necessary. But not having one – or at least an appropriate one – when consent is required to use a person’s image can potentially create all sorts of havoc for stock agencies, art buyers and photographers. To help photographers better understand the complexities of publishing people’s likenesses, PDNOnline asked three experts to share some insight about model releases:
Alan Capel is head of content at Alamy, a photo agency based in Oxfordshire, United Kingdom, that has a sales office in Brooklyn, New York.
Dan Heller, who is based in Santa Cruz, California, is the author of A Digital Photographer’s Guide to Model Releases and a former photo industry analyst who is now chief executive officer of the biotech firm Two Pore Guys.
Nancy Wolff is a partner at the law firm Cowan, DeBaets, Abrahams & Sheppard in New York City.
PDN: What are the most common mistakes you see photographers making in regard to model releases?
Capel: Not actually getting a signed document, doing things on [a] handshake. People move on and relationships break down. We’ve seen former partners wanting images removed because they claim they didn’t give consent, etc. And not putting an image of the person on the release as a clear reference.
PDN: Do you generally recommend that photographers always get model releases because there’s a chance someone will want to use their stock photos commercially?
Capel: Where possible yes, but in many cases it’s not feasible. The type of imagery tends to dictate what’s needed. A photojournalist depicting a riot will never need a release and nor can they reasonably expect a rioter to stop and happily sign a release. But if you are setting up a shoot and the images lend themselves to advertising or promotional purposes, use models and get a release. If you use friends also get them to sign a release.
PDN: Do you find there are many gray areas when it comes to knowing when a model release is necessary?
Capel: Yes, how long have you got? The main question is the idea that you don’t need one if the person is “unidentifiable,” but who decides what that means? I could identify a silhouette of myself or my family and close friends quite easily for example. We take the view that if you are selling for advertising/commercial purposes, it doesn’t matter if people are shot from the rear or in silhouette or distorted or even just body parts. Get a release and then you are covered.
Also, it’s assumed a release is needed just for commercial use. An editorial feature where the subject matter may be sensitive or controversial – for example an article about anorexia or alcoholism – should also use a released image.
Heller: It's not simply about “editorial” versus “commercial” use. The actual laws, which vary by state, generally state that consent is required if the manner in which the person is portrayed can be perceived as advocating or sponsoring a product, service or an idea. These factors transcend commercial activity. For example, using an image of someone that suggests they support a non-profit company, or a religious or political point of view, may require their permission, even though no profit is made, nor does it involve a commercial product or service. Even editorial uses can result in a lawsuit if the manner in which someone is portrayed causes harm to their personal or professional life. The legal defense against such a claim is that the use of the image and/or commentary was both newsworthy and in the public’s interest to know.
PDN: When is a model release required for editorial use?
Wolff: Editorial use is a truthful use where there’s some reasonable relationship between the photograph and the subject. The story does not have to be about the photograph, there just has to be a connection. For example, there was a case in New York where there was an article [in 1988] about how drinking caffeine increases the success of in vitro fertilization and there’s a photograph of a family with lots of kids. The family sued and said [essentially], “My children were not conceived with caffeine and in-vitro fertilization” and the court essentially said, “So what? The story talks about big families, it’s a big family, there’s a relationship. We don’t care if it’s not about you.”
And that’s the underpinning of stock photo licensing. For editorial use you can have a database of unreleased images available for editorial use that includes documentary films, textbooks, magazine articles, newsletters, blogs and the like.
You can’t use an editorial photograph on a cover of a novel because there wouldn’t be a relationship between the cover and the characters in the book. If you [wanted to] put a celebrity on the cover, for example, you couldn’t do that. If you put the celebrity on the cover of a magazine and there’s an article in the magazine about that celebrity, that’s fine.
PDN: Why do some magazine publishers require releases for cover photos?
Wolff: For business reasons many publications feel more comfortable if you have a model release [for a cover image]. But, if there’s a relationship between the cover and an article in the magazine, with case law in New York you would not need it. A lot of times releases are used to make frictionless transactions. There’s subtlety with the First Amendment, so … it’s easier to give [photo departments] rules like, “If you have a cover, get a release.”
PDN: What advice do you have in regards to model releases for people shooting street photography?
Wolff: It isn’t illegal to take a photograph of a person in most situations unless you’re violating some other law. If a person’s in a public place or a place where you can see them, like through a window, you can take their picture. Because we have a very strong First Amendment in the United States, you’re allowed to take a picture of anyone you see on the street. That’s the whole basis of licensing images of news events and reportage, i.e. street photography, in which there are no releases. If someone’s doing something everyone can see, even if they’re sitting in a window of a restaurant, you can take a photograph of them and you’re not going to violate any law. Some states have laws, such as California, regarding long-range lenses to view someone’s private house – primarily to protect celebrities from paparazzi.
Then if you want to sell your photos, can you sell them without a release? The act of selling something by itself is not – and most people get very confused with this – a commercial act that requires a release. The fact you make money from something doesn’t necessarily mean the ultimate use is a commercial use. Otherwise you could never license any news photographs. The New York Times would have no pictures in it other than those taken by staff. The fact that you make a sale is not what triggers whether you need a release or not; it’s the context in how that photograph is used. If you were going to make a sale of a photo of, for example, someone on the street attending a St. Patrick’s Day parade, you could sell that to magazines, newspapers, online blogs, anything as long as there’s a relationship between the photograph and a truthful news or public interest story.
You could also create and sell fine-art prints because photographs are an expressive work. The First Amendment of the [U.S.] Constitution protects freedom of expression and freedom of speech, and visual images are part of speech and they’re also an expressive work of a photographer. So all the state privacy laws must be interpreted and drafted in a manner that does not overstep the boundary of the First Amendment. In the U.S., freedom of expression outweighs privacy concerns when it comes to the use of images for editorial use and expressive uses.
Capel: Street photography gives realism and a candid view of the world but you have to understand the limitations of how an image can be used if you don’t get releases. If you can stop passersby and explain and maybe pay them something in recognition of them signing, that’s great, but be prepared for a difficult conversation. Suspicion will have to be overcome.
PDN: What if a photographer photographed someone for an editorial use but later wants to use it in a more commercial use like an ad? Does the photographer need to find the subject to get a model release?
Wolff: Whoever would want to use it in an ad would have to get the permission of the subject. If the photographer knew the subject, the photographer could help the user get permission.
There have been some interesting situations. There was a news photo of President Obama wearing a Weatherproof raincoat when he was on the Great Wall of China and [the apparel company] put it on a billboard [in 2010]. I don’t think the President would ever [sue], but he would have a legal right to sue because his likeness was being used for advertising purposes, not news. I can imagine in those situations the White House would say, “It’s our policy not to have the president in advertising, please remove it.”
PDN: What if that image were used in a book – would the publisher need a model release?
Wolff: If the book is by a news photographer who had a history of photographing presidents, you would not need permission to put photographs of past presidents or other recognizable people in the book because the book is a First Amendment-protected use … it’s this photographer’s expressive work…If it’s an educational textbook and it’s about history and culture, and there’s a reason to have that photograph there based on the context, you would not need consent.
If it’s a novel, so it’s not factual or it’s not the artistic expression of the photographer but it’s just a book and maybe it references China, you can’t put the picture of the president on the cover because it would be there just to sell the book and there wouldn’t be any reasonable relationship between the text in the book and the cover.
PDN: Do public figures like actors and politicians have more or less protection than private figures?
Heller: Pragmatically, public figures must take into account the effects of their actions when they decide whether to exercise their publicity rights. Actors have a greater incentive to protect the financial value of their likeness, so they will be more assertive in legal action if their likeness is used inappropriately. By contrast, politicians have a “persona” that needs to be maintained. It wouldn't serve their political career to get into the business of suing people.
The one area where public figures’ rights are a bit different is in the realm of First Amendment rights. Their likeness can be used for satire and other commentary – even when such images are used in commercial products – because such commentary usually trumps publicity rights.
PDN: Does the rise of “native ads,” “branded content,” or other sorts of advertorial content that’s disguised as editorial complicate things?
Wolff: Advertorials are always commercial. If the main purpose of the article is to sell a product or service, that’s commercial use and you need a release.
Where things can blur the line, and there’s really no answer to it, is that publishers are trying to figure out how to make money online. You can have a legitimate article: for example fashion magazines always have photos of celebrities caught out walking. So what if a publisher uses technology that allows you to hover over the celebrity’s coat, and you can see where you can buy it and how much? Now, is that celebrity selling the coat? These technologies are emerging and there are no decisions on whether this is advertising or editorial. Publicity rights are state rights and can vary state to state so you could have a different type of result in, for example, California than New York.
PDN: What’s another other gray area with digital media and releases?
Wolff: If you’re a photographer and want to publish on your website samples of your work. In a way you’re promoting yourself but then again you’re just displaying your own expressive works in which you own the copyright. By having your portfolio online do you need a release? Some people who strictly construe promotion might say yes. I think that leads to an absurd result because then only commercial photographers with releases could ever show anyone their talent and news photographers could not. Often there are no decisions on common practices because you would need to have a case filed go all the way through the court system, including an appeal, to have a decision. Otherwise, you make judgments. Most photographers maintain an online portfolio as it has become a necessary way to display previous work and attract new business. If someone were to complain, it would be easy to take down a picture.
PDN: Is posting on social media considered publication or promotion?
Heller: Once again, context is everything. The pivotal question in publicity rights is whether someone is portrayed in a manner where a reasonable person would perceive them as supporting or advocating a product, service or political or religious point of view. This assessment transcends any and all media forms. But social media is still evolving, and complex contexts can blur interpretations.
Currently, most such uses do not meet the traditional definition of “publishing” insofar as the laws surrounding publicity rights are concerned. There are too few cases coming to courts, and most of those are settled before judges can make rulings that establish legal precedents. California and other states are even having a hard time passing laws that allow parents of minors to force social media sites to take down images, citing both publicity and privacy laws, but so far, First Amendment advocates are prevailing.
PDN: In what states do right of privacy laws mean photographers need to be warier about photographing people and obtaining releases?
Wolff: I think the basic law of when you would need someone’s permission for editorial versus advertising and merchandise – like faces on T-shirts – while they’re alive has similar principles. Where I think there’s a big discrepancy is after someone dies whether those rights continue. And then there’s also the litigious nature of certain celebrities since they make a lot of money out of endorsements so they and their agents are much more protective of their rights.
PDN: There’s a prevailing mindset that photographers should always get model releases if they can. However, Dan Heller, you say photographers should instead consider the costs and benefits of getting model releases. Can you explain more?
Heller: Because a large company has a great deal of legal exposure if it were to publish an unreleased image for an ad campaign, it would be less likely to license an image from an unknown or untrusted source. Unless you’re a well-known, trusted commercial photographer who has a track record shooting models, or are with a known company, chances are very low that you will ever license an image to a large company for high fees.
While everyone’s experience may vary, here’s the quick exercise: add up all the money you ever got from sales that you never would have gotten unless those images were released. So now think about the time, effort and overhead necessary to get all the model releases you’ve ever obtained, and add the hours you invested to catalogue and maintain a relational database of images-to-model-releases. Amortize your income and expense ratio over the years you’ve been in business.
Chances are the return on that investment is very, very low. For anyone who doesn’t shoot models as their main profession, I would proffer that the time would be much better spent developing your business in other ways.
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