I’m going to try to bring simplicity to a complex question. Here’s a comprehensive legal answer in two sentences.
The General Rule: If a photo of a person, or of copyrighted or trademarked property, is used to advertise something, then the publisher of the photo needs a release.
The Privacy Exception: If you are hired to take photos of someone (say a wedding or studio shot), those photos cannot be published, even editorially, without a release.
If you really understand those sentences, then you know almost all you need to know about the legal requirements of model releases. Most of this article elaborates on these sentences above to make sure each part of it is clear.
The General Rule for Photography Model Releases
The first thing to note is that, for the most part, only photos of people need releases. Contrary to popular belief, neither animals nor buildings nor other property require model releases, except in the specific case where the property is the subject of a copyright or trademark. That will come as a bit of a surprise to most people, who are used to hearing about property releases. It’s also a surprise to many property owners, who think their buildings or other property is protected. But it’s not, unless it’s trademarked or copyrighted.
Second, model releases are only needed if an image is used for advertising purposes. That is why pictures used for editorial purposes—textbooks, magazine articles, newspapers—don’t generally require model releases. Hence the old rule of thumb: commercial work requires a release while editorial work does not. The same rule applies to copyrighted or trademarked property: photos of copyrighted or trademarked property only need a release if used for advertising purposes.
Third, it is the publisher who is legally obliged to have a model release, not the photographer. For the most part, unless you lie and tell a publisher you have model release when you don’t, you are not legally responsible. Publishers of photos are responsible for knowing if a given use requires a release, and they are the ones who are legally responsible if they publish a photo without one. Of course, even if you are not legally responsible, it’s no good if one of your buyers gets in legal trouble due to one of your images. So you should have a basic understanding of the law, and you should communicate the exact release status of any images you license.
Note also that if you decide to self publish, then you become a publisher and are thus liable like any publisher.
Model Releases and Privacy
No legal discussion would be complete without an exception. If you are invited or hired to take pictures of someone, say for a wedding or studio shot, the resulting images are protected by privacy laws. You can’t sell those photos EVEN FOR EDITORIAL USES without a model release. Much like attorney-client privilege, the established relationship between you and the client creates a responsibility to safeguard privacy.
This can create a strange situation, because this responsibility applies even in public places where other people might take pictures of your clients at the same time. Since they don’t have an established relationship with your clients, they CAN sell their images editorially without a release while you can’t.
Model Release Summary
So let’s summarize. First, you (the photographer) don’t need model releases. Only the publishers of your photos need releases. And they need releases in three specific situations: First, they are using a photo of a person to advertise something. Second, they are using a photo of copyrighted or tradedmarked property to advertise something. Third, they are publishing a photo of your clients, who hired you to take their photos.
Outside these situations, except for arcane situations you are unlikely to face, the buyers of your photos don’t need model release. And if they don’t, you don’t. Mostly.
An Alternative Answer: If Your Buyers Require a Model Release, You Need One
Whatever the legal requirements are, the simplest answer to the model release question is this: If your buyer requires a release, you need one. This is important because buyers often want releases even if they’re not necessary. Since they’re the ones who are liable, they take extra measure to protect themselves and remove even the possibility of a lawsuit.
So, Should You Obtain a Model Release?
Let’s say you’re traveling someplace and you taking photos of the people you see during your journey. Should you stop to get a release? If you have commercial clients, or you think you’ll want to sell the photo for commercial purposes, then it may be worthwhile to stop and get a release. If you do mostly editorial work, and the likelihood of commercial sale is low, then you should probably skip it. If you do stop to get a release, it will severely interrupt if not halt your shooting altogether, preventing you from getting all the other great shots you might have captured. And you’re not likely to need it anyway.
Recognize that there are armies of photographers who never get model releases. Most notably, photojournalists and press photographers who do editorial work rarely obtain releases.
The important point is that whether you obtain a model release is ultimately a business decision not a legal one. It affects which client you can sell to. Obtaining a model release can be valuable because it opens up the arena of commercial clients as potential buyers of your photos.
More Information
That is the shortest and most direct answer I can give for model releases. If you would like a longer and more detailed answer, I would strongly recommend reading Dan Heller’s guide to model releases. He’s written a good book on the subject, and almost the entire contents of the book are available on his website. It’s very thorough, and probably the only reference you’ll need on model release. If you want to more information on the book, click here: A Digital Photographer’s Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things
Sample Release Forms
If you’ve decided you do want to get a signed model release form, you can find a list of sample forms at the National Press Photographer’s Association here.
4 Comments
A useful overview, but kind of forgetting that they have the internet in other countries now! These kind of legal provisions are heavily territorial. Unless you define which jurisdiction you are operating in, then your advice is incomplete. In the UK for example there is no right to privacy (as such) in a public place where in the US I understand there is..
Our studio actually uses model releases for all photography shoots. It is simply a part of the contract. As of yet we have not had anyone complain, but we would omit it if they had reservations. The contract also states that we will never use their images for derogatory or insulting usage. A good benefit is that in the future we can sell these images to stock agencies if we desire to. Also, it is always good to have fresh images to use in portfolios and competitions. Most of all, model releases are a needed tool in this day and age to protect us from unnecessary litigation.
Ha! Matt, that’s funny. I suppose this is a bit American-centric. I’m trying to think why that might be. Obviously, I’m American
, but much of my work has been in Asia, and my stock agency is based in Singapore and Bangkok.
I think a big part of it is that the US market dominates for image sales, and partly as a consequence, most large international stock agencies seem to have model release rules that tilt more to that market than others.
Obviously, model release dynamics in Indonesia, where I’ve done much of my shooting, are totally different. As a legacy of 32 years of authoritarian rule, the restrictions on photographers are much more intense. But those rules are felt more when you are TAKING photos than when you are SELLING them.
However different the Indonesian market is, I usually think of the UK/European/US markets as following very similar rules. On that count, I would add that the UK DOES actually have privacy laws of exactly the kind I describe in the article. The relevant law is in section 85 of the Copyrights, Designs, and Patents Act of 1988. Here the exact text:
Copyright, Designs and Patents Act 1988
…
85 Right to privacy of certain photographs and films
(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have-
(a) copies of the work issued to the public,
(b) the work exhibited or shown in public, or
(c) the work broadcast or included in a cable programme service;
and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.
(2) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—
(a) section 31 (incidental inclusion of work in an artistic work, film, broadcast or cable programme);
(b) section 45 (parliamentary and judicial proceedings);
(c) section 46 (Royal Commissions and statutory inquiries);
(d) section 50 (acts done under statutory authority);
(e) section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).
I haven’t worked in the UK before, so I don’t have a good sense for how these laws are applied. Perhaps that’s been trumped by subsequent laws or juridical interpretations. But this is my understanding of UK law, and it’s is very similar in tone and quality to the US. I’d be interested in any further thoughts, of course.
Erick,
You’re right, the CDPA does give the commissioner rights over photographs, although in my experience the model is rarely the commissioner. I was thinking more about candid street shots actually, where US specific law is rather different to the UK.
As I say though, a useful article. It’s good to see accurate legal advice on a photography site..seems to be a rarity these days..