One of the most frequently asked questions Intellectual property lawyers hear from members of the art community is “When should I get I need a model release?” Given the litigious nature of our society, this is no surprise. The fear of being sued is pervasive. The question becomes more difficult given the amount of disinformation across the web, leaving many photographers scratching their heads as to what they should do. As a result, some photographers are obsessive about getting model releases for every shot, while others maintain a more carefree attitude, relying on nothing more than a handshake or lady luck.
While it is always a good idea to have your photographic subjects sign a release, (there isn’t much of a downside), in many situations, obtaining a model release just isn’t practical. Street photography is a prime example. Street photographers rarely even speak to their subjects, quickly snapping that fleeting moment and then moving to the next potential masterpiece.
So when is a model release required?
Unfortunately, that answer depends heavily on the situation and in some cases, which state, as each may have different laws. (For example, California has laws designed to limit paparazzi photographs, and Florida has some codified privacy laws related to photography). Below are some general guidelines to follow that may help make the decision a bit easier.
Photos for a Commercial Purpose Require a Model Release
Despite what most people might believe, a commercial purpose is not defined by making money but instead focuses on whether the photo portrays a person in a way that can be perceived as advocating or sponsoring a product, service or an idea. Photos taken for an advertisement or any other promotional activity would require a model release. Even an unpaid advertising shoot for a non-profit organization would still require permission from the models, despite no money changing hands. The initial intent of the photo also doesn’t matter. Candid photos such as street photography, that require no pre-thought or set-up, would still require a model release if used for a commercial purpose.
One caveat though; in street photos, the subject must be clearly identifiable, but defining “clearly identifiable” can be a gray area. It may be hard to recognize a person at a distance but if the photos is in front of the subjects home then he or she may be identifiable.
Editorial Photos Do Not Need A Release
Editorial photos reflect the issues, themes, and events that are happening around us. The people, places, and things shown in images can provide context for newspaper and magazine articles, blog posts, websites and other non-commercial presentations. Since they are not used to sell or promote anything, a model release is unnecessary. But for the image to be considered editorial, there must be a relationship between the subject of the photo and the subject of the story. The photo doesn’t have to be strictly about the story, just have a connection. An editorial about migrant workers and their families coming across the border from Mexico can use a generic photo of a Mexican family. Visit most stock photo sites and you’ll find thousands of “editorial use only” images; none of which have model releases.
Photography For Artistic Purposes Does Not Need A Release
A photographer’s artistic expression fall under the first amendment right to freedom of speech. We put such emphasis on the right to personal expression that we do not require a subject’s permission to create art. Whether those photos are taken in the studio or on a public street,
artistic expression almost always wins. However, we must still adhere to a person’s right to privacy in their private spaces. Photographers cannot be Peeping Toms for the sake of art. However, shooting in a public space is almost always legal. As such, any people in those public spaces, or those that can be seen from a public space are fair game. That includes pictures of children or someone standing in a private home window. A person’s right to privacy does not extend to public places.
Those artistic expressions can be displayed and made available for sale at a gallery, online, or in a photo book, without the need for permission from the people in the photos. The artist’s freedom of speech largely outweighs the subjects privacy rights.
Watch Out For A Person’s Right Of Publicity
The right of publicity prevents the unauthorized commercial use of an individual’s likeness. It gives an individual the exclusive right to license the use of their identity for commercial promotion. The right of publicity is not derived from federal but state laws and as such can be very different from state to state. While most states have laws preventing the use of a person’s likeness without permission, not all states have a fine art exception, making the right of publicity trump artistic expression. In some states, like New York, the fine art exception comes from case law, not state statute.
If you need a release, make sure that you get permission from the right parties. In one recent case, Wendt v. Host International, Inc., a company licensed the right to use the likeness of “Norm” and “Cliff” from the TV series “Cheers” to make life-size robotic replicas of the characters. While the company purchased a license for the characters, they didn’t get permission from the actors George Wendt and John Ratzenberger, who hold the right to their likeness. In this case, Wendt and Ratzenberger successfully won in court for violation of their rights of publicity under California law.
The need for a model release is often straightforward, but sometimes falls into a grey areas. So when in doubt, get a release. If a release is not possible, then try to think about how your photo may fit one of the grey areas. Then, contact an attorney just to be sure. In Part 2, I’ll talk about parts critical when writing a model release and provide a downloadable sample model release for photographers.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.