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Thursday, May 04, 2006

A Very Brief Model Release Primer

Igor I. writes: "I've read about model releases numerous times, but I am still confused about how it works in practice. What about Juan [Buhler's street] photos, do they require such releases?"

I'm not a legal eagle or even a legal beagle, but here goes:

1. Ethically*, it's polite to get permission if you can.

2. Laws differ in different countries. In the U.S., where I live, whether you need a model release depends on how you're going to use the picture—generally, on whether you're going to make money directly from it. If you are, or if you hope to some day, you'd better get a model release. Remember what a model release (in effect) says: "This turkey paid me to model for him and therefore I give him and whoever hired him permission to do whatever they want to with the picture. I got mine, I'm taken care of, so I don't care."

3. There are two different scenarios where you might make some money from the pictures but still don't need a model release. These are a) art, which is expression permitted under the First Amendment, and b) news, which is appropriate dissemination of information permitted under the principle of a free press. So let's say you heroically rescue a baby from a burning building. A photographer snaps you doing it, and the picture is all over the papers, TV, and internet. Tough cookies, hero—they can do that: you're news. A few months later, the picture (which is, let's say, oh so arty) shows up in a museum show with a bunch of other arty pics. They can do that too. A year goes by, and suddenly your picture is the basis of a national ad campaign for smoke detectors, under the heading, "I sure wish this baby's parents had purchased a Wizmo!" They can't do that. Well, they can, but you're entitled to a piece of the action. Sue 'em, honey.

4. There are exceptions to both scenarios, which are best understood through case law. If you like to keep up on these things, PDN, née Photo District News, does a good job of reporting relevant cases. A few come to mind. The first was a case in the '80s when a New York Times photographer made a picture of a well-dressed black businessman crossing a city street. The picture ran on the cover of the New York Times Magazine with the headline "The Emerging Black Middle Class" (or words to that effect). The man sued, claiming his picture was being used primarily for decoration in that case, and that it misrepresented him, because he was upper class, not middle class. He won. More recently, art photographer Philip-Lorca diCorcia was sued by an elderly New Yorker named Erno Nussenzweig for taking a portrait of him unawares as he walked down a public sidewalk, then disseminating that portrait very prominently and selling it for very large sums of money. It seems to me that Mr. Erno had a case (at least ethically*), but it didn't seem that way to the judge who made the ruling.

5. In sum, just try to remember: art or editorial, you're prob'ly okay; commerce, get thee a model release. Further, be aware that if you push your art or editorial rights too hard or too obnoxiously, you could be pushing your luck, or at least risking having to pay lawyers to defend yourself.

It might be a good idea to read the comments to this posting too. They don't exist yet, so I don't know for sure, but I'm guessing my thoughts will be amplified and perhaps corrected by actual legal eagles. (And beagles.)

Posted by: MIKE JOHNSTON

*Ethics has no bearing on law, but I'm of the opinion that we've gotten too far away from including it in public discussions, so I thought I'd do so.

17 Comments:

Anonymous ken tanaka said...

Mike's comments reflect my understanding, too.

I offer two excellent references that should be part of every serious photographer's go-to set.

First, the American Society of Media Photographers (ASMP) offers a page of very authoritative information on this subject. (I think the page is publicly accessible.)

Second, attorney Bert Krages has a very good book titled "Legal Handbook for Photographers" that's a must-have for shutterbugs. (Mike, you should add this book to your Amazon links.)

4:25 PM  
Anonymous Igor I. said...

Thaks a lot Mike.

I am probably somewhat confused by the word "commercial". From the POV of someone who sees his/her photo in a book sold for real $$, it might look like a commercial use, not simply art. After all, someone got those $60 and made some profit. (Yes, I know the photographer usually doesn't get much, if anything, but the person photographed may not care). So, is it correct that commercial here means "for commercial advancement of something other than the book in question"? Or what does it mean, exactly?

Igor

4:27 PM  
Anonymous Anonymous said...

"The picture ran on the cover of the New York Times Magazine with the headline "The Emerging Black Middle Class" (or words to that effect). The man sued, claiming his picture was being used primarily for decoration in that case, and that it misrepresented him, because he was upper class, not middle class. He won."

However, on appeal, the NY Times eventially won and he lost. This case was also cited in the DiLorca case on the respondent/defendant side

5:07 PM  
Anonymous jbuhler said...

Let me chip in: first, I never ask for permission before taking a picture--this defeats the purpose of making candid photography in the street, and just gets you posed portraits, which isn't what I'm after. Sometimes the situation does lend itself to asking for and receiving permission with a nod or a smile though. On the other hand, if someone lets me know that they don't want their picture taken I just move on.

As for permission to publish, and model releases, as Mike says, they are not necessary in America given the use I give the pictures. Again, if someone ever contacted me, proved that they are in one of my photos and didn't like it, I would most probably stop using that picture. But because I'm a nice guy, not because I have to.

I was once contacted by a company that made frames, who wanted to use some of my pictures as the example photo that comes with each frame along with their logo, etc. Since I don't have model releases, I had to limit the photos I could give them to ones where no individuals are recognizable.

Another story: in France, despite of their wonderful tradition of street photography, you are not free to use photographs in this "fair use" manner--people own their image. Talking with Peter Turnley, who lives in Paris and whose book "Parisians" has been one of my inspirations for a long time, he says that he just doesn't worry about it. He just goes for it, makes his pictures, and hasn't had any problems. I think this is the right attitude to have.

Worrying about people suing you because they are in your street photos is a bit like worrying about the possibility of a space accident when you're dreaming about becoming an astronaut.

Sorry for the long comment.

5:14 PM  
Blogger ParisGuy said...

hmmm ... I like ur posts, i think i'll keep visiting. tx.

5:57 PM  
Blogger hugo solo said...

More streetphotography STREET

7:42 PM  
Anonymous ken tanaka said...

Igor: The context of "commercial use" is typically that of advertising or promotion. It's principally a matter of context. For example, you cannot use (license) a photograph of a recognizable person for an ad without a release from that person. As the NYT case illustrates, it can also be dicey to present someone's unreleased image in an editorial context that the model may find offensive. In legal parlance this is called 'false light defamation". For example, using someone's image as stock for a piece on, say, drug addiction might very well open you to a suit even if you had a standard model release because the subject could claim s/he was unknowingly defamed by association with that application.

It's worth noting that these cautions also apply to property. That is, business and private property owners can bring complaint against you for using an image of their real or intellectual property (ie. their store, their logo, their home, their products, et.al.) in a context that they consider inappropriate or defamatory.

Again, though, this is U.S. law. As Juan points out, matters are far different elsewhere, such as France where the unreleased use of images of damn near anything is prohibited for most non-personal applications.

1:19 AM  
Anonymous Peter said...

A quite extensive series (12 parts, in german) about the situation in germany can be found here:

http://www.law-blog.de/251/fotorecht-teil-12-beiwerk-versammlungen-und-hohere-zwecke-der-kunst

4:12 AM  
Anonymous APhovasse said...

What JBuhler said is interesting (in a horrifying kind of way) and also applies here in the province of Quebec. A few years ago a photographer by the name of Gilbert Duclos, an street/art photographer lost a case which went all the way up to the supreme court, after taking a photograph of a young woman sitting by a doorway and publishing it in an art magazine. He had not asked for permission, and we are still very much living with the repercussions of this case today. I work for a newspaper and not only must our photographers ask for permission of any person who appears as a main subject in our photographs taken on the street, but we frequently get stopped by all kinds of people, including police, asking us if we have permission to take whatever photos we are taking out in public. Hard news is the exception. We don't do form releases with all these people, but we get their names and explain what we are doing and the name acts as a kind of guarantee that an exchange has taken place and that the subject has understood his photo is likely to appear in our paper. The topics of education (children) and public health (hospitals) two very frequent topics are particularly hellacious to cover. You might think this situation is an exception, but just as ridiculous the laws in France are slowly spreading to the rest of Europe, so I believe Quebec laws will spread outward here in North America. The key to all this was earlier refered to, that we as individuals are notionally taking ownership of our image. So no matter whether inside or outside, our image belongs to us to a greater extent than before, where being in public was considered fair game for photographers. I think this trend will continue to spread and raises some pretty severe questions for photographers. Of course we have to observe the law, but we push our limits all the time, and take issue with anyone who would restrain our ability not only to do our job but also to 'observe' and take photos of public life as we see fit. But it sure is a great great pain in the ass.
Cheers. APH
PS: Gilbert Duclos made an excellent documentary on his court case and the whole situation a couple of years ago. Google his name and you should find it. Explores all these questions and talks to a lot of people about the subject (self included). Be warned it's in french though....

5:26 AM  
Blogger sbug said...

This is an excellent post with several great comments. I have never asked for permission when shooting on the 'street'. Like Juan mentioned, asking beforehand is sort of defeating the purpose and hopefully you can get a good read on someone ahead of time and avoid any confrontation if they are opposed to having their photo taken. My experiences are in the US only though. Frankly, in many areas, we are constantly being monitored by security cameras, traffic cameras and the like so the occasional photog on the street is hardly a drop in the bucket, privacy wise.

8:35 AM  
Blogger Robin Dreyer said...

OK, anybody have an opinion about this? I work at a nonprofit art school. We don't make money on anything we do, but we do use photographs of our students at work in our catalogs and on our website--this is, of course, promotion for our school. We charge money for our classes, but, as I said, we don't make any money.

I take most of the pictures and I don't get model releases because people are working and I'm already being a bit intrusive by photographing. I generally identify myself as taking photos for the school and our school handbook states that we use photographs taken during classes to promote the school.

So--not art, not editorial, but not making any money, and in the ten years I've been doing this nobody's ever complained after their picture was published.

Any opinions?

4:58 PM  
Anonymous ken tanaka said...

Robin: While I see relatively low risk of legal actions in your use of unreleased student photos for the school's publications there is risk, particularly if your school is admitting an increasingly international student body. There are cultures that take categorical exception to use of likenesses. There are also, sadly, some people (and attorneys) who see potential paydays from bringing suits against institutions.

BTW, your risk of liability is unrelated to whether or not you or your school earned a penny from use of the photos. It is a matter of using someone's likeness for promotional purposes without permission.

Personally, regardless of your trouble-free history, I'd make damn sure I got releases from the subjects.

10:58 PM  
Anonymous Anonymous said...

Igor:

Actually, if you click through and read the judgement on the diCorcia case, one of the arguments advanced by the plaintiff was exactly that: the photograph was being sold, and somebody was making money from it, therefore it was a commercial photograph. Further, since diCorcia had always intended to sell it, it was never art in the first place.

The judge ruled (after noting that NY law is very liberal wrt what constitutes art, and state laws vary) that because:

1) The photographer was already internationally acknowleged as an artist,
2) He documented the "creative" process used to create the series, and
3) The gallery exhibited the photos to the "relevant artistic community", not just potential buyers,

The photographs could be legally considered art, not commercial, even though prints were sold at $20,000-$30,000 apiece.

12:19 AM  
Anonymous Anonymous said...

One other important aspect of image rights.

There are no copyright police.

To at large degree, humans do what they can get buy with, without regard to codified statutes.

If you have interest in protecting your own work, your bottom line is to sue. And civil suits are expensive. The financial burden of a lawsuit often means that you may have to put up with uses of your work that are not really fair, but are financially unviable to protect with litigation.

There are no copyright police.

“Need Moar Cowbell”

10:37 AM  
Anonymous Anonymous said...

we frequently get stopped by all kinds of people, including police, asking us if we have permission to take whatever photos we are taking out in public

I thought it is about use of the photo of a person, not the act of photographing them. You may be taking a picture that perhaps nobody will ever see (esp. when using film and messing up your dev time ;-). There cannot possibly be police action against potential law violations, unless you count in "thought crime".

Dirk

3:59 AM  
Blogger Bret said...

Along the lines of Dirk's comment, one might well ask the police (more often private security guard) in question whether they have permission to look at the people they see in public. After all, they are recording an image using physical equipment and storing it in a medium (called human memory). If photographers need permission to "take" photos in public, then shouldn't everyone also need permission just to open their eyes?

I seem to recall there was an excellent little handout made by someone a few years ago, that could be handed to the "thought police" in these sorts of situations, to, at least in most cases, smooth over the widespread and growing confusion that exists about the right or not to record images, independent of any potential use one might make of such images.

8:52 AM  
Blogger ISF said...

A few questions:
I’m hoping to start a street style blog, with photographs (taken by me) of people shopping etc who I think look stylish. Most I suppose will be posed, others riding a bike etc. Most photos will be taken in Scotland (UK), and some abroad. I won’t be selling any photos. Do I need model release forms? What if a pet is in the photo?

Secondly, if I wanted to get some other people to contribute (unpaid) to the blog (in other Scottish cities, for example), would the same apply to them regarding getting model releases?

Would any of this be affected by having adverts on the blog?

Thank you very much for your help,

Louise (louisekessackdear@googlemail.com)

12:12 PM  

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