Model Releases

You need them for if you're asked at a later date.

You don't need them to load

Here is my understanding of why we need model releases. It has to do with rights of publicity and privacy. To overgeneralize, these rights pertain to how a person's image - face, body, reputation, all that kind of thing, can be used by other people.

In the United States:
There is no *federal* right to privacy / publicity. However, the individual states, localities, etc., have passed various laws protecting individuals' rights of privacy / publicity. Therefore, not all the laws are the same. It's a research project to figure out what laws exist, whether the law applies in the exact area you're located in, how they're applied in case law, etc. It's more work than I'm interested in doing to figure this stuff out.

Fortunately, there is an easy short-cut around doing all that legal research: The waiver -- or model release.

The important thing to know, is *if* a person has a right, that person can waive that right. That's mostly consistent throughout law, rights and waivers go hand-in-hand.

If you have a model (or person) sign a waiver giving you permission to do whatever-it-is you want to do with his/her image, then it doesn't matter if s/he ever, in the first place, had the right to stop you from doing whatever-it-is with her image. You now have permission, s/he has waived her rights to stop you / sue you for using his/her image in that way.

If you go around photographing / drawing random strangers, not always, but sometimes, depending on the circumstances and the jurisdiction, you potentially expose yourself to risk that the random stranger might find your art, and sue you, or make you take the art down, or whatever the law says s/he has the right to do if you used her image without first getting a waiver.

As a practical matter, if you don't make the random stranger recognizable as that particular individual, then you're not likely to land yourself in trouble for violating privacy / publicity rights.

*************
Generally, artists keep their model releases in their own files. For FAA's policy on having model releases, I'm pretty sure as a condition of posting your work here, you agree to comply with the law, and not post work that is in violation of applicable laws.

Disclaimer: As always, not legal advice.

as far as i know, if you sell it as art, you don't need permission, but it depends where you live, where they were, what they were doing etc. selling it as stock, you need permission and an outline of what kind of stock.

i'm trying to follow the canadian rule, 2 or more people, so no one single person can complain about it.

i can't imagine flagging people down to sign something on the street, i can see that backfiring big time.


if you did photo shoots of that person, then its a good idea to have release forms on you. i think you can download an app that has that, though you have to hand your phone to a stranger.

what they do in the UK, i don't know, i think the rules are similar to the US, but after brexit i haven't a clue how anything works. not that i did in that area. i think your safest if its a group of people in the public, and they shouldn't be doing anything that could get them in trouble later on. (making them look bad because you caught them in front of the porno theater). or doing drugs or stuff like that.


mind you i'm no lawyer, you would have to contact a local one to find out.

---Mike Savad
http://www.MikeSavad.com

If you want to do street photography, and not get permission from the subjects, it might be a good plan to research the law in the area where you want to do the street photography before you start pointing your camera at people.

Then you know what the limits are on who / where / for what purposes you can do photography *before* you get sued.

Disclaimer: As always, not legal advice.

Hi ,

Thank you for all the replies! It's mostly for pictures I took while traveling in Asia and South America. Would you suggest I check the laws for each country and go from there?

Cheers
Julie

Am not a lawyer nor do I play one on TV and my remarks pertain to the United States only.

I am a photographer so my remarks refer to that medium, but the general concepts apply to other art forms.

One of the most misunderstood issue in photography is the issue of privacy. I’ve had this discussion with countless individuals and photographers.
When in a public place (or in a place readily visible from a public place) one has little if any expectation of privacy. Some exceptions apply, of course, such as public restrooms and certain government and military locations. When discussing this issue the tact I take is this. If you are in your front yard anyone could walk by and see you doing whatever it is you are doing. Why would my taking a photo be an invasion of privacy when anyone in the world could have seen you?

When on private property the ability for you to take and sell photos relies on the property owner. If they say “No Photos” then no photos can be taken.

The key to whether a model release is ever needed depends on the use of said photo. Generally only those photos to be used for commercial purposes need a release. In this context commercial refers to advertising or promotional use. The fact that you are merely selling a photo does not make it commercial use.

Many web sites and publications require a model release before they will buy a photo. This is their requirement and not a legal requirement. I know that sounds like semantics, but there is a difference.

Editorial use does not normally require a release. Again, the buyer may require one, but the photographer is not legally required to obtain one.

Sales to individuals do not require a release.

There are some factors that should be considered when selling photos of people. Using a photo to ridicule or shame someone leaves the photographer open to a lawsuit. Using a photo for editorial purposes can also be an issue if you use a photo of a neighbor to accompany an article on serial killers.

And of course, some folks really do not want their photo taken. Use common sense. Know and understand your rights as a photographer and a citizen.
Then take it one step further and make sure others understand your rights as an artist.

Keep in mind that anyone can sue anyone for anything. The fact that some guy sued a friend over some photo he took does not mean that suit had any merit. The photography rights I’ve outlined have been upheld by courts around the country.

I’ve attached a few links that back up my statements. If anyone can point me to laws that restrict photography I would be interested in seeing cites.

http://danheller.blogspot.com/2011/09/busting-myths-about-model-releases.html

https://www.rocketlawyer.com/article/when-you-need-a-photo-release.rl

http://capitalphotographycenter.com/blog/article/when-do-you-need-a-model-release

Julie,
That's up to you. The research could get expensive and/or time consuming, so I guess it depends on what you want to do with the pics, how likely it is that you'll get sued, and how big of a problem it would be for you if you did get sued.

The basic by-the-book correct answer is yes, you should do the research. That said, there is more legal risk in some situations than in others, so maybe it would be a higher priority to do the research if:

(a) You're doing something with the pics that is likely to earn you a lot of money, or create the appearance of making you a lot of money (making you a more tempting target for people who would sue you for the money), or
(b) The photo is looking like it could become very famous -- it's going viral on the internet or whatever -- (making it more likely that you might get caught if you did accidentally break a law by pointing your camera at the wrong person at the wrong place/time), or
(c) The subject might find the photo embarrassing or the subject has the sort of career where one might expect the subject would care about controlling their publicity (they're an actor, or politician, or whatever), or
(d) You can think of some other reason why the photo might be more likely to attract litigation than the average snapshot that has tourists or your family members in it; and

last but not least...

(e) Do not fail to do the research if the person in the picture sees it, contacts you, and asks you to stop using it.

If you really can't decide whether you need to do the research, engage the services of a lawyer and get some actual legal advice on the subject.

Disclaimer: As always, not legal advice.

From all solicitors I've spoken to so far, and now it's several, they all said

If the person is recognisable, release needed.

I found another link with more detailed info.

http://www.bobatkins.com/photography/tutorials/photography_law_rights.html

You know, this do what you want and be free of all legal encumbrances and obligations to the people you photograph stuff is all well and good - people photograph total strangers all the time and plaster the pics all over the internt... until somebody sues you. Then maybe a little bit of CYA (covering your a....) by getting a release can be worth it's weight in gold.

My approach?

(a) Do the research so I know what my rights are, and more importantly, what my rights are not.
(b) Nevermind the aggravation of doing the research, and get the waiver.

What I *don't* do is ....

(c) Do what most people do, nevermind doing the research, nevermind getting a waiver, and plaster the pics of other people all over the internet anyway. Either I don't know I can get sued for that, and it comes as a total shock to my system when a lawsuit lands in my lap and I have to go running to my friendly (and expensive) neighborhood lawyer to try to get myself extricated from this, or I do know I can get sued for that, maybe, but the chances are pretty slim, so what the hey, everyone else is doing it, so why not me, too?

Disclaimer: As always, not legal advice.

I believe in doing the research.

I've done it. I know my rights and I want others to know what their rights are and what they are not.

In that endeavor I am willing to share the research I have done. To date I have found nothing that says I am legally required to obtain a release. Yes, I might need one to sell to certain markets (because they require one and not because the law dictates it). And yes, I do obtain releases when I feel I need one, but since I do not believe in selling images of random people for commercial purposes I seldom feel that need.

Bottom line. People have little expectation of privacy in public and they should know that.

i would check the local laws there. like in france, i think your not allowed to shoot the vendors, i heard that from some place. as for the rest, i don't know.

chances are they will never see the image themselves, to sue over, and being in another country, may stop them. but the internet has a way of joining people and they may find themselves. but only if they have the money will they sue. usually its putting someone in a bad light that will get you in trouble. don't know how it works in other countries though.

in the US its a bit more free, like the guy who shot people from a distance away into apartment windows of people living their lives, changing etc. and they sued him, and they lost, because standing in front of a window is not privacy. anyone can sue you though, release or not.

---Mike Savad
http://www.MikeSavad.com

Thank you for all your great advice!

Not meant to be advice because I am for sure not a lawyer either but my guess is that 99% of the street artist are either intentionally or unknowingly going with the "sometimes it is better to ask for forgiveness than permission" policy.

And 99.99% of them are probably getting away with it.

(Was that you I heard gasping Abbie? lol)

I have a link for you that may interest you. The article was written by Steve Schlackman who is both a photographer and a patent attorney. The article may shed some light on your question

https://artlawjournal.com/need-model-release/

-Chris Flees
http://cfleesphotography.com

if he were a copyright lawyer, his words would have more meaning. though i think that's a rehash of another page. each type of lawyer specializes in their field, but the answers seem to align with others - it mostly depends on what its being used for.

---Mike Savad
http://www.MikeSavad.com

The article posted above more or less is how I understand things work.

When answering the question, "Can I photograph this person without a model release" the area of law you generally (but not always) need to look at is not copyright, or patent, it's rights of privacy and/or publicity.

In many jurisdictions, and in many situations, it actually *is* legal to photograph people you see on the street.

However, there are also many traps for the unwary if you're doing that kind of thing in the wrong jurisdiction, or the wrong exact place that you think is a "public place" but isn't, or you photograph the person in the wrong situation, or use the photograph for the wrong purpose. You gotta know the law.

If you're not going to research the local law, so you know when *not* to point a camera at another human being, you're taking a risk.

Also, there's this thing about rules/laws that I've noticed. If you do something sufficiently obnoxious, people will go looking for oddball rules that can be used against you to make you stop doing that obnoxious thing. If there are no rules, the obnoxious person often will get a new rule made in his honor. Even if you're doing something that's technically legal, a little bit of common sense and common consideration for your fellow human beings can be a good plan -- if you're not the kind of person who likes having new rules made in your honor.

Disclaimer: As always, not legal advice.

It is good to research this in your country and jurisdiction. But having said that, there are also ways that you can use people's likenesses (cartooning, for instance) and still be within the law. Cartooning, satire is just about always excused in courts. And let's face it, a lot of newspapers make money off of photographing someone somewhere -- I, myself, have been photographed for newspapers a lot of times (being a musician and out in public), and I didn't have control over the photo, no one asked for permission, no one told me the photo would be in a publication ... The thing is, no one seems to object to someone from a local newspaper walking into a PTA meeting, or taking pictures of people at a protest, or country fair, or their property (especially if they were in violation of something), etc. There is also the photographer Diane Arbus who rarely asked for releases (https://www.thecut.com/2016/07/diane-arbus-c-v-r.html) and her photos of people were anything but flattering, and she showed at the MOMA. So the law is more lenient than we realize.

However, with some public figures like movie stars, they patent their image, and their names, and you absolutely need permission to paint them, or photograph them.

Then there is the case of Rogers vs. Koons (https://en.wikipedia.org/wiki/Rogers_v._Koons). Koons found a photo by Rogers and made a sculpture out of the image. Rogers won that case because the sculpture was deemed "too derivative" of Rogers work.

I take pictures of parades sometimes. There are usually a lot of people in the shots. The thing is, I also morph figures, often change colors, and do quite a bit of photo-shopping with costumes, and even facial expressions. While the people in them might realize they are in the photo, they might not too because the alterations are extreme enough. Last time I looked, the law here allowed as little as 20 percent alteration without a model release (depending on location of photo -- i.e. not in someone's house). So how do newspapers get away with it? Black and white photos? Photos that aren't high enough resolution or quality that they justify 20 percent alteration? I would just bet that no one cares enough to go through with a lawsuit about it.

Ha Cheryl! Really? I'll try to be more obnoxious and see if I get a law passed

Model release advice and info from a real copyright attorney. Bear in mind this is US law but a lot of this is really just common sense.

http://www.photoattorney.com/?s=model+release

Abbie,
Yes, really... try reading some legislative history sometime.

Meanwhile... it's not a trick that works every time. Why... is there a particular law you would like to see passed LOL?

Chuck...

Good article, thank you for posting. FYI, the cases are *state* law... the law is not uniform throughout the U.S. - just nitpicking a point. Looks like many of the cases she discusses are NY law, so I'm guessing she practices in NY.

The bit about states adopting electronic signature provisions that are all more or less the same is *not* the same thing as saying the law RE: needing a waiver is uniform throughout the U.S.

Disclaimer: As always, not legal advice.

That's a good point Cheryl about state law. NY though seems to set a lot of precedents in this area that many other states follow.

Lise:

" So how do newspapers get away with it?"

The answer is more complicated than I can capture in a short online post. So this is an oversimplification, and to get a more nuanced idea of how this stuff works, you really need to just read up on this area in more detail than you already have.

There are different areas of law that don't work at all the same. These are all different from each other: Copyright / Trademark / Patent / privacy rights / publicity rights. First you have to figure out which area of law applies. If it's copying or making a derivative work, that's usually copyright (federal law). If it's taking photos of people, it's usually privacy or publicity rights (state or local law).

However, for newspapers, in almost all of these areas of law, we get some Constitutional law (free speech law) mixed up in the analysis that sometimes makes it ok for newspapers to print / publish things that the rest of us could probably not get away with just to make art, or to make stuff to sell. To oversimplify, much of the content including the illustrations/photos/etc that goes with the articles is subject to a greater degree of protection than other speech. There are different categories, but political speech, educational speech, etc. are viewed, under Constitutional law, as more protected speech. Commercial speech is viewed, under Constitutional law, as less protected speech.

So...when the laws are written, sometimes the legislators carve out areas where the law doesn't apply. That's true of copyright law. The Copyright Act says that there are certain "fair uses" of copyrighted material, where people can use the material for certain purposes that are more protected. Then it gets complicated, how "fair use" is applied. Generally educational discussion, and parody, are "fair uses." So (again, oversimplifying), newspapers *sometimes* can use copyrighted material in their articles, or they can *sometimes* use photos or art, if they're saying something arguably educational in their newspaper articles -- they can only do it if the use is a "fair use." Fair use includes some balancing tests, it's not a clear rule, but part of the balancing test the courts are supposed to use involves deciding whether or not it's educational speech, or commercial speech. If you understand "fair use" and how it works, you can understand why newspapers can get away with *copying* stuff that the rest of us can't get away with.

For privacy and publicity rights, there is no federal law, you have to turn to state law. It's not the same in every state. However, in general, this is about individual human rights. It's about who can take pictures of my face, my body, and for what purposes people can use those pictures. Again, we get balancing tests -- these tests are about which is more important, the right to do whatever it is the photographer did with the picture, or the person's right to control his/her own face, body, and how they're presented to the public. The balancing tests for these human rights are not the same as the balancing tests for copyright. Some of the elements of the tests are similar - so they can sound kinda the same, but if you read the cases carefully, you'll see that the balancing tests in the human rights cases are, in fact, different from the balancing tests for "fair use" in copyright, and can lead to different outcomes.

The interesting thing is that often if someone is a public figure, applying balancing test for non-commercial uses, like publishing a newspaper article, the public figure (compared to private citizens) has fewer rights to keep people from photographing them and putting the pics in the newspaper, because of the higher level of public interest - the public's need to know, basically - about what's going on with this public figure. When commercial uses come into play, the rights of the individual being photographed tend to become relatively more important.

Again, because of the public interest in information about public figures, or other newsworthy topics, the newspapers can *sometimes* get away with taking and publishing pictures that the rest of us can't get away with.

I hope this helps, and doesn't just make it more confusing.

Disclaimer: As always, not legal advice.