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The following article is for information purposes only. It does not constitute legal advice. Different states and countries have different laws so always consult a legal professional for advice specific to your business.
This question of when a model release is necessary comes up a lot. On the one hand, it’s pretty straightforward to answer. On the other, there’s a lot of exceptions and real world realities that get in the way. I’ll do my best to clear up the muddy waters here.
The purpose of a model release is for a subject to allow the photographer the right to publish images of a person’s likeness. Basically, everybody has the right to control how their likeness is published through what are known as “rights of publicity.” Note that I use the word likeness - the published work doesn’t necessarily have to be a photograph; it can be an illustration or painting too.
This right of publicity is not a blanket right however. Here’s some real world situations to consider:
- A model release isn’t necessary if you can’t identify the subject. If you can't make out who the person is - for example, the person’s head is cut off or turned away from the viewer - there’s no right of publicity to protect and thus no release is required.
- You’ll need a model release if you’re going to use an image to promote either your business or provide the photo to another company to promote their business. An image used in an ad, brochure, website, billboard or side of a bus requires a model release.
- You don’t need a model release for images available for sale directly to the public or as art prints. For example, a release isn’t necessary to sell photos on the web after a wedding or kids sporting event. Prints available for sale in an art gallery don’t require a model release either.
- Images published in a newspaper or magazine editorial are considered newsworthy and thus don’t require a release. (An image on the cover may be considered advertising depending on the context.) When submitting a photo to the “real weddings” section of the magazine, a release isn’t necessary. If you run an ad with that photo in the same magazine, that would require a model release.
- An image placed on your blog or website may or may not need a release. It’s your portfolio so you’re entitled to place it there. However, if you somehow state or imply some sort of endorsement by the subject towards your business, then a model release becomes necessary.
- You don’t need a model release to shoot the picture. If you’re out shooting an event or even street shooting, you may photograph whomever you like regardless of whether the subject (or their parents) may wish to be photographed. (What you’re able to do with the photo afterward is a different issue.)
- Ownership of the image is not the same as being able to publish the image. As copyright holder, you have the right to control how the image is reproduced. In exercising your right to publish the image, however you have to make sure not to infringe on the subject’s right to control the publication of their likeness. Think of owning the copyright like owning a car. The car may be yours, but you still have to obey all the rules of the road.
- A model release without compensation is not binding. Whether you pay money, via services or just trade for a print, there needs to be some kind of exchange or payment between both parties.
There’s a lot of other factors to consider, but those are some of the big ones.
Something that comes up a lot is the fact that wedding photographers and some portrait photographers will have a model release built into their contracts. For example, both the Photographer’s Toolkit Wedding Contract and the Portrait Contract Kithave brief model release clauses. What protection does that offer?
Some, but it's far from absolute. The intention of the release clause in your contract is to head off complaints about garden variety use such as placing an image on the website or brochure. That release is only good for the person or persons signing the contract however. Just because the bride signed the contract doesn’t mean that you can plaster cousin Jane’s likeness in magazine ads and trade show prints.
My rule is that I don’t ask for any permission to put an image on my website or blog. If someone complains, I can take it down easily enough (which no one ever has to date). Should I run a magazine ad that will be out for many months or a year, then I inform the client that I’m running their image in the ad and often extend to them a free print as a thank you.
Basically, I want to get the client’s okay without making it a federal affair. If there are going to be problems, I’d rather know about it before it’s too late for me to do something about it. Yes, I may have a release clause in my contract, but I'd rather not test it against a client out for blood.
One thing that is covered in the Toolkit Wedding Contract is that, if you are sued by a guest in the course of fulfilling your wedding contract, the client agrees to assume that liability. So, if you put a photo of some grumpy lawyer groomsman in your online gallery or in the client’s album and then find yourself on the receiving end of a lawsuit, your client may be liable for paying your attorney bills and any judgment. (Not a bad piece of protection.)
I often get questions from photographers who are interested in using their wedding images as stock photographs for sale to other companies. They want to know if the Toolkit model release will cover that. My suggestion is that if that’s your intent, get a specific release for the purpose of stock licensing. If a client unexpectedly sees their mug on a billboard for Bank of America, you’re going to get a letter from their attorney regardless of what your wedding contract says.
Finally, when photographing children or anyone under 18, you'll want to get the parents to sign the release on behalf of the kids.
John Mireles
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