View Poll Results: Do you need a model release if.....#5
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01-15-2013, 11:42 PM #1
Do you need a model release if.....#5
You want to make and sell a coffee table book of "body scapes." So you hire a bunch of nude models, some of which have distinctive body art/tattoos. Do you need a model release?
01-16-2013, 12:07 AM #2
So, generating revenue...
Eyes visible? Enough of the face(s) to specifically identify an individual? If so, I'll stay with "yes".Dave.
01-16-2013, 12:12 AM #3
01-16-2013, 12:22 AM #4
01-16-2013, 12:24 AM #5
By the way Steve, thanks for doing this. I've enjoyed the series and I'm learning. It sounds like a lot of people are thinking through this as well.Dave.
01-16-2013, 02:57 AM #6
Books are considered editorial expression, so even though they are generating revenue they aren't commercial products as defined by the courts. -- No commercial release required.
Normally, I'd say that even without faces showing, you can still identify someone by a unique tattoo, so you would need a release to divulge private information. However, you said in your explanation of #4, that what a nude model looks like naked isn't a private fact, so no privacy release is needed.
01-16-2013, 11:44 PM #7
The answer to this one is Maybe.
First, as noted they are nude models so their nudity is not a "private fact."
It's not "editorial use." The editorial use exclusion if for "news worthy" publication (in the loosest sense of the term). The easiest way to think of it is "is it being published in an editorial publication?" That could be magazine, newspaper, blog, etc. But probably not a book, and certainly not an "art book." (use in an educational book might qualify for the "fair use" exclusion)
In states where there is a separate law of "publicity," that doesn't apply because that's related to "commercial use" which is advertisement.
It is a potential violation of "Appropriation of name or likeness" which is the use/misuse of an image for personal gain. In states where there is not a separate publicity law "commercial use" is included in this one.
So what is appropriation of name or likeness for personal gain? You are clearly allowed to sell any photo, and selling a photo is obviously for personal gain, so how is this different?
The difference is you have converted the images into something else, a product. You are not selling "a picture," you are selling "a book." The same would be true if you were to sell photos of people on coffee cups/t-shirts/calendars like some of those sites allow you to...so for any identifiable person you better have a model release.
And identity can be associated by a commonly visible tattoo (not one that no-one would normally see); you don't have to be able to see a face. In fact, privacy laws protect "identity" and not just their likeness. The laws also apply to their voice, and can even apply their residence or vehicle.
Since these are nude models almost any distinctive tattoo anywhere on their body might be considered "identifiable;" I'd err to the cautious side.
edit: btw, the right against appropriation of name or likeness expires when the person does. But the right against "commercial use" does not.
Last edited by sk66; 01-16-2013 at 11:58 PM.
01-17-2013, 12:39 AM #8Fact #6: You do not need releases for Art, Books, Exhibitions, Presentations, Fairs, Contests, Postcards, Calendars, Etc.
At the risk of over-simplification, the only time a release is needed is if a person can be seen as supporting or advocating an idea, product or service. True, there are often disputes about whether a given publication of a photo of someone could be construed in such a way, but the dispute gets closer into the safety zone when that publication is a form of artistic expression. The First Amendment of the US Constitution protects "artistic exhibitions" (and publications) as a form of free speech, so consent from anyone else—by definition—is never required. Money or profit has nothing to do with whether a work is published or "depicted in an artistic manner."
01-17-2013, 03:26 AM #9
I'm going to have to rescind/modify my position...I had, or thought I had, a court ruling supporting it, but I can't find it. I do have a court ruling supporting Dan's position, sort of....it's regarding Hustler magazine (Faloona v. Hustler). And I found this in the ASMP model release FAQ's while trying to find my original case reference...
"If you license the picture for use in a book, you should be OK without any releases as long as you don't allow the publisher to put the photo on the cover of the book or use it in promotional materials. If you put it on coffee mugs or allow its use in any way that would be considered purposes of trade......you would be in violation...."
While that specifies licensing for someone else to publish, the same would apply to self publishing. So it's a "maybe" but only to the extent that an image would be used for the cover(s). The parts about applying to coffee cups and T-shirts is still applicable, And the calendars only as far as the covers are concerned.
BTW, I have started going back and collecting the references/cases/laws supporting my statements if anyone wants them (I still have more to go back and find again). I will try to include them from here on out...(and yes, Dan Heller is one of the references, and he's also not a lawyer). If I can find the court ruling I was thinking of and if it does support my original position I will update this post.
Last edited by sk66; 01-17-2013 at 03:35 AM.