model release question

[Dew]

if someone has paid u to do a headshot/portriat/other ... do u have them sign a model release? ... what if they refuse? ... is it "standard" procedure?

 

[ksmattfish]

If you ever intend to make money off the showing or publishing of a portrait of someone, you should get a release.

I don't remember the site address, but there is a photographers' law site out there somewhere.

 

[metroshane]

You don't need a release to take the pic, but you do need one to publish or use that pic.

 

[Dew]

what if i want to use the photo just for my portfolio and not sell it .. do i still need a release?

 

[ksmattfish]

If you take the pic, you own the copyright. You can definately show it in your portfolio. As I understand it (which may not be very well at all), even if you were to publish or sell the photo without a release, the most they could do is sue for a portion of the profit, or sue you for damages if it was somehow deemed slanderous or damaging to them. The main reason to get the model release is so when you become a rich and famous photographer, you don't have to pay your subjects any of the extravagant moola you'll be earning off posters and coffee table books.

 

[metroshane]

You can definately show it in your portfolio. As I understand it (which may not be very well at all), even if you were to publish or sell the photo without a release, the most they could do is sue for a portion of the profit, or sue you for damages if it was somehow deemed slanderous or damaging to them. The main reason to get the model release is so when you become a rich and famous photographer, you don't have to pay your subjects any of the extravagant moola you'll be earning off posters and coffee table books.

Wrong. I'm sure you had good intentions, but please don't spread eronius facts. Your description is more fitting for a property release.

Here's the breakdown for people.

Editorial - no release needed
Commercial - which your portfolio is since your are trying to make money with it - release always required.
Art - release required only if subject is recognizable.

Property -

editorial - none needed
Art/commercial - there are no strict laws requiring a release, but most people agree it's extra protection and many buyers just prefer you have it.

If you had the Photographer's market you'd have all the info you need. Infact, here is an (editorial) excerpt...

Get into the habit of obtaining releases from anyone you photograph. They increase sales potential for images and can protect you from liability. A model release is a short form, signed by the person(s) in a photo, that allows you to sell the image for commercial purposes. The property release does the same thing for photos of personal property. When photographing children, remember that a parent or guardian must sign before the release is legally binding. In exchange for a signed release some photographers give their subjects copies of the photos, others pay the models. You may choose the system that works best for you but keep in mind that a legally binding contract must involve consideration, the exchange of something of value. Once you obtain a release, keep it in a permanant file.

You do not need a release is the image is being sold editorially. However, some magazine editors are beginning to require such forms in order to protect themselves, especially when an image is used a photo illustration instead of a straight documentary shot. You always need a release for advertising purposes or for purposes of trade and promotion. In works of art, you only need a release if the subject is recognizable.

I bolded a very important part. If you have a model sign a release without giving them something in return (no matter how small), it may not hold up in court.

 

[ksmattfish]

I did a web search on model releases and portfolio use. Wow, no one seems to be able to agree on what the law really states, although most agree that obtaining a release is a good practice.

So I called my photographer buddy at the local newspaper, and he refered me to their lawyer. The lawyer told me that in theory using photos in your print portfolio could be considered advertising, but that the court would have to rule that showing it to potential clients constitutes publication. He was unaware of this ever happening.

On the other hand, he felt that there were plenty of examples of litigation involving photos with a legitimate model release. He said that any decent lawyer can get around any model release. So a model release is by no means absolute protection.

Another issue is whether you are producing a commercial product or "fine art". The lawyer told me that as long as long as I (the artist) am the only one with the reproduction rights, then I don't need a release even if I sell 1000 prints. If I want to sell reproduction rights to another party or put a commercial logo on the prints, then I need a release.

He also said that no matter what the law, no lawyer is going to sue without substantial return guaranteed. And in my case, at least, good luck squeezing blood from a turnip, snicker.

So anyway, are you confused yet? I am. I'll probably try to work some sort of model release into my contracts in the future, but I'm not going to worry about the photos already in my portfolio. My main concern is with this statement "keep in mind that a legally binding contract must involve consideration, the exchange of something of value". So I have to pay my client a few bucks to use the photos they just paid me $300 to take? I guess I could raise my rates, and then claim a discount if they sign the model release.





Gary Winnogrand's or Henri Cartier-Bresson's

 

[ksmattfish]

Whoops! Some how I cut off that last bit. I was just wondering if any of the folks in Gary Winnogrand's or Henri Cartier-Bresson's books signed model releases.

 

[metroshane]

Glad he's not my attorney.

Here's more info than you probably wanted, but feel free to read.

http://photography.about.com/gi/dyn...tp://www.simslaw.com/model/model_releases.htm

You are very correct in your statement that the no one can agree. Remember the law is written to be interpreted, and is rarely clearly defined. A model release will never entirely protect you but sure is handy. So given that you have to weigh the consequences. When you're broke like most of us, the cost of one law suit could easily shut down our business and put us in overwhelming debt...even if you win. I sure can't afford to hire a lawyer to fight anything. Attorneys aren't all knowing, so you really have to do your research. Remember, in every law suit, one lawyer loses.

Another issue is whether you are producing a commercial product or "fine art". The lawyer told me that as long as long as I (the artist) am the only one with the reproduction rights, then I don't need a release even if I sell 1000 prints. If I want to sell reproduction rights to another party or put a commercial logo on the prints, then I need a release.

I'd avice the attorney to reconsider this. If Dew were to put some of her street photography on a cafe wall (even if she's not being paid), and say it was a pic of a man and his mistress...or someone moonlighting...which could result in a marital conflict or dismissal by his boss....then you can sure as hell bet you'll have a law suit. Or say it's a gay bar...then the subject of the pic could say that the circumstances insinuated that he was gay.....it's very tricky.

 

[metroshane]

So I have to pay my client a few bucks to use the photos they just paid me $300 to take? I guess I could raise my rates, and then claim a discount if they sign the model release.

absolutely. It doesn't matter as long as it's one dollar as long as it's spelled out. You have to be really careful with what you do with people's images.

 

[ksmattfish]

"it was a pic of a man and his mistress...or someone moonlighting...which could result in a marital conflict or dismissal by his boss....then you can sure as hell bet you'll have a law suit. Or say it's a gay bar...then the subject of the pic could say that the circumstances insinuated that he was gay....."

Absolutely, then they would be able to claim that the public display of the photo is damaging. There is no doubt about this. I ran into many examples siting these, and similar situations.

When I photograph my clients I always make it clear that I would like to use some of the photos for my portfolio. Usually they are very flattered, and consider being included in my portfolio as a sign that I'm giving them my very best effort. I would never go against a client's wishes, or place any photos of a troublesome client in my portfolio. Also I have never included work that I have been paid for in shows.

I'm trying to imagine how I'm going to get the model releases signed for a several hundred person wedding, yet obviously pro photogs' portfolios are filled with wedding and reception shots that include many of the wedding guests. As it is, everytime I show my contract to a different lawyer, they find something different wrong with it; I've rewritten it six times.

Rats! I should have been a rich lawyer instead of a poor photographer.

 

[ksmattfish]

if someone has paid u to do a headshot/portriat/other ... do u have them sign a model release? ... what if they refuse? ... is it "standard" procedure?

You get to set your own rates. If you normally charge "X" dollars plus the use of the photos (<--with the appropriate releases, contracts, etc... ) for a portrait session, then if the client doesn't want to allow you the use of the photographs your rate may go to three times "X" dollars. I found several photographers whose rate jumps to ten times their normal fee if the client won't sign a model release.

There is no reason for you to do it for anything less than you think you deserve whether you charge $20 or $20,000.

 

[Dew]

well, their good about signing it .. but i dont use all photos for my portfolio (especially if im not crazy about the pics) ... interestingly, most of them encourage me to sell them, they figure they may be "discovered" ....

i have 2 model releases, one for just portfolio and i allow the subject to use the photos for self-promotion in all forms of media ... and another release i have is for my portfolio, sell or trade and they dont get to approve the finished product.

sometimes i grab the "wrong" release and they sign their life away, anyway ...

 

[terri]

Me, I like landscape photography. In a state park.

This has been a fascinating thread. I've learned a lot and appreciate the links!

 

[photoangel]

A question on model and building release ?
If you are travelling pr living abroad say like asia and take photos of natives or people from foreign countries like Asia , How to sell the photos, as these people may not read and write, some have no clue about release and photo laws, In most countries they do not apply.
In street photography you cannot go round asking all those who have recognisable faces to sign model releases , Same in press photography So How ? Same with buildings . most often the person n the photo like an old poor family or lady, Mat not even understand what it is your asking . let alone able to read and write.

If the law stops you from taking photographs to sell ,the this law must be given when buying a camera . s you dod not waist years like I have.