http://www.danheller.com/blog/posts/when-editorial-uses-of-photos-require.html

the reason i mentioned art (which does NOT require a model release as long as it stays within that realm) is that i took quite a few pictures of a woman i had a relationship with, and it was going to be a mutual project, art books, website where pictures could be purchased

so, by the time we separated i had not (stupid, i know) gotten a model release…then we got back together for awhile, did some more of these helmut newtonish sets, and then, alas, it was over…and i still had not gotten a release (yeah, tell me if you’ve heard this a million times before)

i still wish to do an art book, perhaps self-published on demand, as well as a website of purchasable art…and hence my interest was rather niche when i researched the model release question and realized that if these are used as art, even though i sell them and, yes (hopefully), “make scads of money” i would not need a release

i still would honour our original understanding and split the profit after expenses, but was happy when researching the situation to see i did not have to be held hostage here (even though she does have guns in a number of the pictures)

further, about a third of them were done very newtonish with her face not showing, and those need no release at all (no, there are no distinguishing characteristics to point to her)…

prior to this project, i had been a news photographer, got my journalism degree replete with the requisite legal courses, and dO know what a minefield the question of releases normally are…hence i only addressed this one area where the issues of first, recognizability, and then, second, art, make my situation clear cut…but of course, not my love life

Yes, but it’s easier to think of it without taking “art” into consideration. Here’s the simpler way to understand it:

Model Releases are necessary if a the nature of how a photo is used would be perceieved to associate the person in the photo to a product/idea/service/company or political/religious point of view. In other words, the photo can’t imply that the person subscribes or advocates an idea.

If it doesn’t meet those criteria, then it doesn’t need a release. There are even photos that have people in them that are used in advertisements that don’t require releases because the objective observer wouldn’t assume that the person “advocates” the product.

Obviously, this is highly subjective, which is why companies err on the side of caution– they don’t want to get sued, even if they’re right. This pragmatic “safety” practice is often misconstrued by photographers as “a release is required.”

Just because a photo of someone is “on” a product does not necessarily imply the person is an advocate. This was established by the case involving Princess Diana and the memorial “plates” that were sold on TV. Her estate sued, but the courts ruled that merely depicting her is not a violation of publicity rights because it doesn’t suggest she’s an advocate for the company or the product.

Art doesn’t require a release less because it’s art, than it is that the nature of its depiction — that is, how it is displayed, not necessarily the contents of the photo. It’s almost always the case that, what triggers the need for a release is the text associated with a photo’s publication.

My model release book gets into great depth on this subject.

True, but to what end? At some point, the band is going to look like idiots. My suggestion would be to come up with a middle ground where the band makes arrangements to get new shots taken, and in the meantime, figure out a way to “appease” the dissenting member.

As for written agreements, you’re right in principle, but in reality, you wouldn’t have much different a situation here: for in order to enforce whatever was agreed to in a written agreement, you’d have to go to court. Well, that’s already the case here, so the difference is negligible. Written agreements are perceived to be panaceas until people are actually faced with the reality of enforcing them. All it takes is the other guy to say, “so sue me,” and that reality hits.

There’s no easy solution to these sorts of things when people don’t have the money to enforce their protections. It’s best (and smartest) to enter into agreements knowing that, and try to structure something that is more pragmatic for the people and conditions at hand.

It’s usually at this point that I recommend people stop trying to be weenies and instead realize that both sides gain when they are mutually cooperative.

it CaNNoT be used for commercial purposes…this does not mean it can’t be used for the commercial purpose of selling your art book, or the pictures themselves (in ads for the book, etc)…commercial purposes mean used to promote some product/cause other than themselves (the pictures) as art…

so you can make scads of money selling them in galleries, in books, as long as it’s art…if the picture, as an artistic picture, is used by a company to promote its product, or even a non-profit to promote it’s cause, or a university (which is a commercial enterprise), then it’s being use for a commercial purpose, and you need a model release…

of course that’s in the u.s….

First of all, I thank you for your fantastic and prompt reply. No,this is not
a recording act where royalties come into question, simply a working ‘Cover Band”. An interesting note, I read that altering the individual’s photo making them unrecognizable, may also be enough to avoid any possible issues.

As you mentioned, gains vs. losses for legal action, more than likely would prevent the individual from initiating any serious manoeuvres towards the remaining members. I cannot stress enough… written agreements are a must in any partnership. You just never think it will ever go south, so you put it off. I also can not stress enough, that written agreements not only assist in a smooth parting of company, but help to keep the partnership together and strong.

Thanks again Dan.

BK

The answer depends on three basic details. 1) if there are any contracts, then you defer to those. I’m assuming there are none in this case.

2) If there are any recordings for sale, then the photos would be considered part of the same “work” as the recording. That is, that person’s performance in the music remains, just as a photo of him would (along with credits and royalties). Performing those songs as part of a marketing effort to sell those works would still entitle them to use the images.

3) If there are no recordings, and the band isn’t performing with that member, then the act of performing is not to promote prior works, but just to make money on the merits of the band alone. Here, it is probably in this case that he could make a claim that he is being misrepresented, which is a violation of publicity laws. The only way to avoid such misrepresentation would be to either remove him from the photos, or state next to all the photos that he’s no longer with the group. If his presence in the photos actually makes the group more popular, or draws a larger crowd, then he’d have an even stronger case. (Although I’m not sure how easy that would be to prove. You’d actually have to be a local to know, and probably support it with surveys involving statistically viable sample sizes.)

If this is, in fact, the case, the guy has a dilemma: in order to exercise his rights, he would file a claim, but unless the band is really substantial, chances are no one’s going to spend that kind of money… this, especially because there would likely be limited monetary damages to offset the legal claims.

Now the question comes to the band itself — knowing they might be technically ‘in the wrong’, while also knowing that the guy is unlikely to invest in legal action, what do they do? My guess is that if they didn’t work this out beforehand, the band will just shrug it off and just say, “sue us.” If they genuinely want to do the right thing, my guess is that the dispute wouldn’t have gone this far.

But, it’s not my place to make such guesses. ;-)

Buddy

http://www.danheller.com/model-release-primer

As to brenda’s question preceding my comment here, “if you are invited to a party…”, the question is mis-stated because the party is entirely irrelevant. the *question* is whether you need a relese form to “share the pictures with other people.” The answer to that is no, and it has nothing to do with whether you’re at someone’s home, or anything at all. The reason you don’t need a release is because the act of “sharing” photos does not violate publicity or privacy laws as defined by state and federal laws. To violate those laws, you’d have to *publish* the photos in a manner that has broad public visibility. Simply sharing them with other people doesn’t trigger that definition of publishing.

You may always print your own photos; this is a private use that never needs consent from other people, even if you are on someone else’s property.

Again, the model release primer noted above should be read by all to get a quick summary of these topics.

dan

Thanks Brenda Sherrod