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View Poll Results: Do you need a model release #4

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  1. #1
    sk66's Avatar
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    Question Do you need a model release if..... #4

    You have a sexually explicit image of an individual who is clearly identifiable (obtained legally). You want to make a 15ft x 20ft print and display/sell it at a gallery. Do you need a model release?



    Edit:removed "art fair" as a venue due to the additional considerations of "offensive materials" which are separate from rights of privacy/publicity and cannot be addressed in a model release.
    Last edited by sk66; 01-15-2013 at 04:03 AM.

  2. #2
    MattG's Avatar
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    I voted yes on this one - due to the reasonable rights to privacy that possibly relate to this sort of image and the context of its display.
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  3. #3
    Jim Bryant's Avatar
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    Quote Originally Posted by MattG View Post
    I voted yes on this one - due to the reasonable rights to privacy that possibly relate to this sort of image and the context of its display.
    Yup. for same reasons.
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  4. #4
    sk66's Avatar
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    There is the right of privacy against the "Public disclosure of embarrassing private facts." That certainly has to be considered.

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    Quote Originally Posted by sk66 View Post
    ... right of privacy against the "Public disclosure of embarrassing private facts."
    I haven't heard of that before. It certainly doesn't seem to apply to any celebrity or one running for public office. (Not that I feel sorry for most of them.)
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  6. #6
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    Quote Originally Posted by dasmith232 View Post
    I haven't heard of that before. It certainly doesn't seem to apply to any celebrity or one running for public office. (Not that I feel sorry for most of them.)
    I think you're confusing that right of privacy with the right against publicity (which apply less to famous/public figures). In fact, many states combine the two as a singular right of privacy. (they do not have a separate right of publicity)
    Last edited by sk66; 01-15-2013 at 04:29 AM.

  7. #7
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    Ok, this one is a solid "maybe." The issue here is the subject matter and if it is "public disclosure of embarrassing private facts." For many people, how they look nude is a "private fact" and they would be embarrassed to have made public. But once they allow you (an outsider) to take the pictures it is no longer "a private fact" so it' not protected. But thats unless they had a reasonable expectation that you would keep it private. Technically, that means you gave an indication that you would keep it private.

    Non technically (i.e. jury/trial) these things can be twisted to protect the ignorant (although law isn't supposed to) and the ruling is "reasonable expectation of privacy." That means if you gave no indication that you wouldn't keep it private and it was taken in a private setting ("private" not being based upon ownership) then you would need a release to (hopefuly) win in a trial.

    But there are several other considerations that also make this a "maybe." The "private fact" has to be a private fact to begin with. If you hired nude models/porn stars to do the shoot, then how they look naked isn't "a private fact." So no violation.

    And displaying/selling to an individual or small group is also not a violation even if it was a "private fact." In order for it to be a violation of Public disclosure of embarrassing private facts, it has to be "disclosed" to a wide enough audience so as to become "public knowledge."

    We're talking about the laws, not "what's smart."

    And I shouldn't have used "explicit image" because by doing so I pushed the subject beyond "photography" into "pornography." But since art is subjective, I left it. And just FYI, "sexually explicit" is defined as the actual execution of a sexual act (not simulated). And if you do photograph such there are a whole bunch of other laws which may apply including age verification, records keeping etc etc..

    Disclaimer: I am not a lawyer.
    Last edited by sk66; 01-15-2013 at 11:34 PM.

  8. #8
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    This seems to be one of those cases where you should definitely err on the side of caution. Even if you don't need one, things could get substantially more difficult if the model has second thoughts after giving you a verbal "ok" to display the image.
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  9. #9
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    Well, I would have to agree in a sense. What REALLY matters is that everyone understands where they stand and what is going to happen. In writing or not.

    The reality is that most photographers who do this sort of thing collect a bunch of model releases just to store them. A model who does a TFP shoot with you does not need you to give them permission to use the images you provide them with...They just can't reproduce or sell them. And you don't need their permission to use the image in accordance with your copyright as long as you don't violate their rights in the process. That's the whole "reason" for the shoot in the first place.

    In most cases the only purpose of a model release is to "document" that everyone knows their rights...It heads off a case before it happens. And lawyers are expensive. But legally the model releases serve no purpose.

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