Saturday, May 31, 2014
In the world of photography, much has been said and argued about model releases. They have been debated in courtrooms and on forums and in the faint light of dive bars frequented by photographers. Experts have written books about the issue and pundits have disseminated vast misinformation. Editors and designers are afraid of the legal ramifications. Although there is a legal need for model releases, the law remains vague.
Spoiler alert: I am not a lawyer so do not take any of this as gospel. While we have been working with experts for years, you should consult your lawyer as your case may be very different and unique.
In my way of thinking, usage of a photograph has to do with intent. You encourage the most scrutiny if you are using someone's image in a way that implies they are endorsing an idea or product or that they are involved when they are not. In those cases it may be necessary to have a release because you may have a problem if the people being featured object. It has nothing to do with profit or payment or money changing hands.
Editorial usage is usually exempt. Federal law permits news gathering institutions to use photography without consent. You can also exhibit, publish art books, sell prints, etc. without releases. Stock agencies sometimes will reject photography that does not have proper releases, but it is often overkill. They just don't want the hassle. Also, they feel that not having model releases may limit the long term saleability of a picture.
In my early years I knew practically nothing about model releases, but I quickly learned the hard way. At first I bought and used the standard model releases published by associations. They seemed to be pages long, full of complexity, legalese and intimidating. When I was shooting annual reports and corporate brochures, it was always a long discussion every time I stuck the unfamiliar document under the nose of a factory worker or office employee. It was an even graver matter to ask an executive to sign it. They were always suspicious and asked to have the paper reviewed by the legal department. This defeated the whole purpose of asking for model releases. On top of that, no one ever returned it to you. Ever. So my studio was forever chasing our subjects to send in the paperwork before we could use the images.
The denouement finally came when I was imploring workers where English was not their first language. I had the managers and foremen explain it, but realized the workers did not fully understand and felt that their job might be in jeopardy if they did not sign.
Since I did not want to be party to such tactics, I talked to a lawyer and we came up with my "Miranda version" of the model release. While we still use the old fashioned kind in the appropriate situations, we now spell out our reasons in one sentence, in clear, simple language. It works well with both rank and file and top tier executives. We trade some protections for a simplification of the process. We want people to know what they are getting into in order to make a more informed decision.
For most of my career I have had the good fortune to travel overseas for many of my projects. But being on foreign soil calls my motives into far greater question. In other countries the laws are different. The rights to privacy may change. Just photographing in certain places may be forbidden. At first we had the model releases translated into the mother tongue. Although this was very costly I thought it was the right thing to do. However this just made it more confusing. For many cultures signing model releases is alien. Some subjects had no idea what we were doing. So we resorted to the Mirandized release and asked someone to just tell them it is permission to use the photograph and explain what it says.
In the USA you must be of age to sign legal documents. So for underage children, a parent or guardian must sign for them. Of course this leads to all kinds of problems. On an assignment in Brazil, we had a huge crew with the product and lighting and makeup artist out in a public place to finish a magazine ad. On the sidelines we were hassled by a young shoeshine boy who saw us as an opportunity to make some money. He would not leave us alone. A light bulb went off over my head. Put him in the picture. He was perfect for ambiance. But then we spent all day tracking his parents down. I took a huge risk.
No model release will protect you if you misuse the photograph, i.e. if you slander the people in the picture or insinuate facts or rumors that are not in evidence or make them look bad. They will sue and they will win.
Once upon a time we had a case where a stock photograph was sold to a company for a lot of money and the photograph was used in ads and billboards, etc. It was a very good sale for us that continued for years. When it was published double page spread in a national newspaper, the mother of one of the little girls in the picture called my client and threatened to sue. They referred her to the ad agency that in turn referred them to me. I reminded the woman she had signed a release and had been paid. She did not have a leg to stand on. She informed me her husband was a lawyer and he was going to make my life miserable because they wanted more money. We paid.
ASMP has several sample releases for most needs plus resources on using and acquiring them.
Docracy is a site where you can get all kinds of releases made available by other photographers/lawyers