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Apogee Photo Magazine

The Model Release: A Primer

by Michael Fulks

When we snap a picture of another person, two fundamental but competing rights come into play: the right of the photographer or artist to free expression and the right of the subject to privacy. Over the years, a variety of model releases have been developed to contractually spell out an agreement between these two opposing parties.

Let’s assume that we all understand our rights to free expression and turn our attention to the rights of the individual to privacy and how photography might violate those rights. Leonard Duboff, in his book The Photographer's Business and Legal Handbook, tells us that violations can be categorized in four ways: 1) when we intrude upon another’s seclusion to make our photograph, 2) when our photograph makes private facts public, 3) when our photograph would cause the average, reasonable person to believe something about the subject that isn’t true, and finally, 4) when we use our photograph of a person for commercial gain.

Intrusion upon seclusion

In the case of intruding on someone’s seclusion, court precedents have established a set of conditions that must be met in order for a violation to be actionable.   First, there must be some form of intrusion. This means that the photographer has entered an individual's private domain--be it his home, land, or private office--uninvited, and this intrusion must be of a kind that would be offensive to the average person. Courts have ruled that an offensive intrusion can be anything from entering an individual’s domain under false pretense, to setting up hidden cameras in order to spy. They have also ruled that intrusion is not limited to entering private areas but can also occur in a public place. Most notable have been rulings against paparazzi attempting to photograph celebrities, as well as rulings about photographs taken in public places of individuals in which the photograph intentionally or unintentionally embarrassed or humiliated the subject.

Invasion of privacy

If a photograph reveals a private fact that the subject would not have revealed to the public himself, this can also be considered an invasion of privacy. Sexual affairs, sexual orientation, private debts, criminal records, certain diseases, psychological problems and the like usually fall into this category. Exceptions to this include instances in which these facts are part of a public record--such as court proceedings, legislative or executive records. Another exception happens when the disclosed fact is both newsworthy and truthful. Therefore, a photograph revealing a truthful private fact would not be judged to be an invasion of privacy if the subject is a public figure, since this sort of disclosure would be considered newsworthy by the average person. Disclosure of wrongdoing by a public figure may not be an invasion of privacy if the wrongdoing pertained to his role as a public figure, but revealing his sexual activities may be an invasion if the average, reasonable person feels that the activity has no bearing on his public role.   Furthermore, courts have ruled that photographs taken in a public place of private matters do not constitute an invasion of privacy. Thus, photos of a murder victim's grieving family taken out on the street cannot be considered invasion of privacy, nor can photos of a married man and his mistress, if they were photographed in public.

Projection of a false image

It should not be surprising that a photograph that portrays another in a false light would be objectionable. We understand, of course, that photography is objectionable when it leads the average person to believe that the subject was a criminal or engaged in criminal activity when, in fact, s/he is not. But, in some cases, it's not the photograph itself that gets the photographer in trouble but the use of his photograph. For example, if you sell a picture of a model to a magazine that then uses the image in an article about teenage prostitutes, you may be sued for invasion of privacy. Furthermore, a caption under a photograph falsely attributing a quote, an activity, or circumstance to the context of the photograph or its subject could lead to a similar lawsuit. In these cases, the act of taking the photograph may not be the issue, while the use of the photograph is. The photographer will be drawn into the suit not only because he took the picture, but also because it might be presumed that he authorized or permitted its use in that manner.

Use for commercial gain

Finally, we come to the issue of exploiting our photograph of another person for commercial purposes. This differs from the other three categories in that it does not require the complaining party to prove that the pictures caused embarrassment, humiliation, loss of self-esteem, or other emotional injury.  The subject needs to prove only that the pictures were used for commercial purposes--that is, used with an expectation of bringing profit directly or indirectly. Personal use of photographs does not apply. Also excepted are photographs of public figures which are deemed to be newsworthy or informative, even if profit is derived from them. Lastly, the subject of the photograph must be identifiable. In other words, the subject must be able to prove that the likeness is, indeed, hers. If the person in the picture is unrecognizable because no face is showing, or if the photograph has captured only a generic part of the body--such as someone's back--the case becomes a "your-word-against-mine" situation.

In any case, when you use a photograph of person without a written release form, you take the chance of being embroiled in a lawsuit involving one of the above rights to privacy issues. What constitutes "use"? It's generally accepted that if the photographs are not displayed or published, but kept for the photographer’s own enjoyment or as instrumental in perfecting her craft, then a release form is not needed. However, the sale of such images as art, or as stock (because it constitutes a commercial use), necessitates obtaining a written release. If there is even a remote chance that you may be able to sell an image, get a release.

The model release form

(We have included a sample model release form for you to print out and use. Print it  now, so you can follow along as we discuss the parts.)

Most standard forms were created for the sole protection of the photographer. As with any contract, you should be prepared to alter it, case by case. Having samples in your word processor will make adaptation easier.

In our standard form, you'll notice we begin with the words, " In consideration of… and for other good and valuable consideration…" Model releases are generally considered contracts and, as such, require consideration--that is, an indication of compensation for a service rendered. It's always a good idea to pay the subject, if only a token amount. Compensation may be no more than one dollar or prints from the shoot. In some states, the model release is still considered valid even if no consideration was given.

The model release gives the photographer not only the right to take the picture, but also the right to use it. As you can see from Paragraph "a", the release form gives copyrights to the photographer and allows commercial use of the images. It also includes language that might cover circumstances out of the photographer’s control after the image has passed into the hands of a client such as a publisher or advertiser. This is particularly important in light of recent court cases that ruled in favor of models when their pictures were used outside the expected format, as in the case of a model who won an invasion of privacy case against a photographer when the photograph ended up promoting pornographic material.

This brings up Paragraph "b" which permits the use of printed material along with the photograph. This section is intended to cover a case in which a misleading caption is used (as cited previously) or a case such as that of the model mentioned above. Her picture itself was not salacious, but when the image was placed in the context of an ad for pornography, the usage violated her rights.

Paragraph "c" goes further to protect the photographer by having the model give up his/her right to recourse if s/he doesn’t like the way the pictures turn out, the way s/he is portrayed in them, or where they finally end up--including the advertising copy that might accompany them.

In our digital age,  an invasion of privacy lawsuit might result from the way in which an image is digitally altered or used in combination with other images to produce a desired result. It's entirely possible to put the head of one person on the body of another in such a way as to cause harm, embarrassment, or humiliation. The wording of Paragraph "d" addresses such a possibility. In fact, the model release of the Picture Agency Council of America amends the last line of this paragraph to specifically spell out what is meant by "invasion of privacy." It says, "...even though it may subject me to ridicule, scandal, scorn or ridicule."

Professor Duboff reminds us that a model release should be a flexible instrument. Having a release that includes wording like that above would certainly protect the photographer but would almost as certainly dissuade many subjects from signing. Most people who take the time to read the release will begin to feel uneasy at the prospect of their likeness being used in ways they can't even imagine. To mitigate this apprehension, he recommends that each release should specifically describe the subject matter and intended use, to prevent any misunderstandings. Of course, it's possible to make the wording of a release so specific that it eliminates any further uses of the image, which would probably be viewed as counterproductive by the photographer. So, common sense dictates balance, communication, and responsibility.

The photographer should be candid about the possible uses of the image with the model, but at the same time, he should make it clear what uses are permissible when talking with an agent or potential buyer. Many photographers insist on being contacted by their agent when the usage of an image enters a questionable area, so they can contact the model and explain the situation. Only after the photographer obtains permission from the model does she approve the usage of the image in that situation. Not only does this policy protect the photographer from claims by the model, but it also engenders good will--very important if the model is a valuable asset. This approach obviously necessitates having a model release for each project or shoot, but you'll avoid confusion and/or ambiguity.

Luboff further recommends that a reference to the model release should be stamped on the back of the photograph. This can simplify record keeping and prevent  ambiguity as to what is covered when the photograph is released.  It also communicates clearly what the permissible uses of the photograph are to the photographer’s agent or stock agency

Finally, as with any agreement, the form must be signed and dated. Having the signature of a witness, as well, can help eliminate future disputes. Remember, minors cannot sign contracts. There are certain instances in which you may want to require proof of age such as a driver’s license. If a subject is underage, you must have a parent or guardian’s signature. However, be aware that some courts have ruled that, under certain circumstances, a parent or guardian’s signature may not be binding.   Because laws differ from state to state, and indeed, country to country,  you must know what's acceptable in the place where you live or work. Contact a local lawyer if you're uncertain.

There are a number of organizations that can help you find a lawyer who will help you, in many cases, free of charge. I particularly like Volunteer Lawyers for the Arts. In the past, they have offered great help to me and the arts organizations to which I have belonged. Consult your local phone directory or contact the New York City Volunteers Lawyers for the Arts for a directory of member chapters. Also, consider joining one of the many organizations for professional photographers and artists. The networking will help you get a handle on local laws as well as help you form liaisons with others concerned with these and other matters of common interest.

In closing, remember these wise words: "Most legal problems cost more to solve or defend than it would have cost to prevent their occurrence in the first place." Leonard D Duboff

______________
For more information see:

The Photographer's Business and Legal Handbook, by Leonard D. Duboff. Published by Images Press, NY, NY. Copyright 1989 ISBN 0-929667-02-6.

 

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