The Myth of the Model Release?

[DGMPhotography]

So I've been doing some research and different sites say different things :/ You guys have told me I need to have a model release but my friend kinda freaked out when I told her that so I did some research. This guy seems to say that you basically don't need a model release for yourself, unless it's conveying that the subject promotes an idea or something. It's the publisher company (magazing, etc) that needs the release so it's not that the photographer needs the release but that the publishers need one and that's the only way they will buy your photos. Model Release Primer

Question 1: Why is it that publishers need a model release?

Question 2: If I don't plan to sell my photos to a publisher, or have my subject advocate an idea or something, do I need a release?

Thanks!

 

[Lmphotos]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

 

[tirediron]

In most circumstances, you only NEED a release if you are going to use image commercially (think: "Advertising"). Since most photographers don't actually publish advertising copy, they may not need the release, but having it ensures that you can use the image later on. As well, self-promotion might (in extreme cases) be construed as commercial use, so it's possible (but not likely IMO) that using an image on your website as part of your portfolio could be construed as commerical use.

I normally use a combination release/license/usage agreement such as this:

This is a work for time agreement between

My Name (“The Photographer&#8221

and
___________________________________ a minor, and _____________________________ a parent or guardian legally able to make such decisions as are described below ; (Jointly, “The Client&#8221, in which The Photographer and The client agree to a non-monetary exchange of time for services in the following manner:

For the images taken at: _________________________________________________________
_____________________________________________________________________________
________________________________________ on _______________________________, and
in exchange for acting as a model for a period of approximately two hours (or a greater or less period as mutually agreed on), The Client will receive at least two digital image files, in .jpg format suitable for printing at up to 8x10 inches. As agreed beforehand by both The Client and The Photographer, the images will be head and shoulder images (“headshots&#8221 of the type commonly used in modeling portfolios.

The Photographer grants The Client the right to make an unlimited number of prints of the aforementioned images, and the right to use the images in electronic or printed format for any non-commercial purpose, including but not limited social media use, inclusion in portfolios and other forms of self-promotion, but no other rights. The Client acknowledges that The Photographer will retain the copyright to all images, and that they may not edit or alter the files in any way.

In addition to copyright, The Photographer retains the right to use the image for any non- commercial purpose including but not limited to personal promotion and accreditation as well as for portfolio purposes.

The Client is responsible for hair-styling, make-up, and clothing choices. The Photographer will retain the right to make the final decision as to which image(s) are selected for processing and delivery to The Client.

Note: This is a Canadian document suitable for the IP law in the province of BC. Laws vary by country/region/state/province. This may or may not be suitable for your area.

I explain to potential clients that this is for mutual protection and if they don't want to sign, that's fine, there are lots of other photographers out there.

 

[tirediron]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

Editorial use normally does not require a release.

 

[cgipson1]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

maybe there is a reason for that... like... they are scum?

 

[KmH]

That is Dan Heller's web page.

Yes. A model release protects both the model and the publisher, depending on the specific language in the release.

For more complete information I highly recommend his book. I have a well worn copy of it. - A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things

The photographer is also often the publisher.
When a photographer publishes the images on the photographer's web site, having a signed model release is a good idea.
Photographers do get special dispensation if they use an image for self-promotion, unless the image was made in private, is made under controlled conditions (like posed shots made in a park and using strobed light and reflectors), or if the people in the image can be perceived as sponsors or advocates of the photographer's business. Then, the photographer needs to have a signed model release on file if the photographer wants to avoid the potential of future legal problems.

When paparazzi sell images to a magazine, the use in the magazine is usually editorial, and editorial use generally does not require a release. The same applies to magazine and newspaper reporters and being editorial use they also don't need a model release.

Model releases are needed for commercial use - advertising and promotion.

All of which points up the fact that model release law is not as cut and dried as laws like traffic laws.

While copyright law is federal law, and is the same in all 50 states, model release law is state law, so there are 50 somewhat different versions of it. Check what applies in your state.

States that have a significant TV or movie making industry, like California and New York, have requirements a state like Iowa doesn't have.

A further consideration is - what legally constitutes 'publication'? - Are Photographs Posted On the Internet Published? | Photo Attorney

 

[EIngerson]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

They do not need permission or a contract to shoot people in public. They are candids, not a formal photo shoot.

 

[Lmphotos]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

They do not need permission or a contract to shoot people in public. They are candids, not a formal photo shoot.

I was reading a photographer a while back who took a picture of a homeless man while doing street photography and could never sell it because he didn't have a model release. How is that any different?

 

[manaheim]

Getting legal advice from a bunch of yahoos on the internet is really dumb.

You did ask those yahoos their advice, but then you decided to disagree with it... based off your own research... on the internet. And then you came back here to discuss it with the yahoos that you disagreed with some more. Really? Come on.

Go talk to a lawyer.

 

[table1349]

Seems funny how paparazzi gets away with taking tons of photos and sells them to magazines with no release?

They do not need permission or a contract to shoot people in public. They are candids, not a formal photo shoot.

I was reading a photographer a while back who took a picture of a homeless man while doing street photography and could never sell it because he didn't have a model release. How is that any different?

Celebrities and other people that put themselves in the public eye such as politicians do not have an expectation to privacy that the average individual has. They and their lives are by their very nature "news/newsworthy." Personally I could care less about them, but the "news" rags sell thousands at the grocery store.

To the OP, nothing makes "fact" out of "fiction" faster than becoming embroiled in a lawsuit. Do yourself a favor and consult an attorney in your area or the area you intend to shoot in before you decide whether to use or not use something such as a model release.

 

[IByte]

Along with an attorney, IMO it's just good practice to ask them to sign a model release to save you from any headaches in the future. Try this before the shoot, sit down(at a cafe) and go through the contract with your friend/client. If you put them at ease and within a comfortable place they are less likely to "freak" or become uncomfortable. Good Luck.

 

[Vautrin]

Why should you have one?

I'll tell you a true story. My ex had a friend taking some photography classes. As my ex was used to my always snapping away photos of her, and modeling for me, she agreed to pose as a model for her friends photography course, as an assignment.

Her friend posted the photo shoot on Flickr, quite proud of them. And, as compensation for my ex, she gave prints of the photos to my ex.

A local company saw her photos on Flickr, when googling for shots around Maastricht. They emailed my ex's friend, and asked to pay her 200 EUR for the photo for a local ad campaign. Of course she had to come back to my ex, and ask for a signed release.

As my ex was the model, she informed her friend it was only fair that she got half. Even though she had already been compensated on a TFP (trade for prints basis).

Realistically, if you're just shooting for fun, and you're just hanging photos on your wall, or posting on facebook, you don't really need a model release.

But the second you go commercial you do. And commercial can include gallery work, and you won't always be able to claim it's "editorial"

That's why people recommend you ALWAYS get one. It just reduces confusion, as you never know which shoot will give you that GREAT shot

 

[Steve5D]

Instead of asking "Do I need one?", why not ask "Why shouldn't I have one?"

I can't think of a single reason why having a model release would be considered a bad thing...

 

[KmH]

I was reading a photographer a while back who took a picture of a homeless man while doing street photography and could never sell it because he didn't have a model release. How is that any different?

It sounds like the photographer was short on legal knowledge and/or salesmanship.

A famous case (from a legal perspective) -Nussenzweig v. DiCorcia - Wikipedia, the free encyclopedia

Here is some info from a models perspective - http://www.newmodels.com/Releases.html

 

[nycphotography]

I was reading a photographer a while back who took a picture of a homeless man while doing street photography and could never sell it because he didn't have a model release. How is that any different?

It sounds like the photographer was short on legal knowledge and/or salesmanship.

A famous case (from a legal perspective) -Nussenzweig v. DiCorcia - Wikipedia, the free encyclopedia

Here is some info from a models perspective - About Model Releases

Call it a hunch, but it probably wasn't the photographer that backed out of the transaction due to the missing release. Almost all purchasers of images are publishers or in the media business in some way, and they have burrocratic rules to follow that are set by some of the least creative people in the media industry, and on the corporate lawyer side, maybe on the planet.

The last thing you're going to get a media house to do is bend a rule set by their bosses and lawyers when it comes to releases and rights.

Was the buyer likely well informed? of course not. But would it have likely made it difference if they were? of course not.

Welcome to cya corporate thinking.