When I quit practicing law ten years ago, I knew I was trading in my briefcase for a camera bag and the courtroom for a studio. I had no idea, however, that contracts would continue to dominate so much of my time.
The importance of the contract between you and your client is pretty much a given, but just as important – if not even more important – is the model release. If you’ve been shooting professionally for any period of time, you already know (I hope) that securing a model release from the people you photograph is absolutely essential.
What you may not be aware of, however, is why it is so important. It is an unfortunate reality that most people neither completely read nor understand the legal documents they sign or have prepared for them. You may have an iron-clad model release in your bag of tricks, but you may not understand what exactly it’s releasing or the significance of the language.
Having a fuller understanding of the basics will help you greatly in the long run, particularly when assessing whether you even need a model release, and convincing your subject to sign one if you do.
What is a model release, and why is it important?
At its most basic, a model release is a contract: a written and signed agreement between you and the person you are photographing.
The purpose of a model release is to protect – i.e., release – you from liability in future lawsuits that your subject/model might file against you for legal claims like invasion of privacy, defamation of character, etc.
The document stipulates the terms under which one party may use photos taken of another party. Model releases are usually brief – no more than a paragraph – but they can get quite long, especially if the model wants to add additional conditions to the release (e.g., no Photoshop).
We’ll get into the specific contents of the model release in a bit. For now, though, know that a model release is a crucial piece of paper for any photograph that’s used commercially.
How do I know if I need a model release?
Not all photoshoots that include people require model releases, so it’s important to start by understanding whether a release is necessary for the type of photography you’ll be doing.
You should always start with a basic premise:
Whether you need a model release does not primarily depend on the content of the image. Rather, it depends on the image’s use.
When you start with this premise – that the need is primarily dictated by the use and not the content – you are left with a pretty basic set of questions:
Question 1: Will the photo be used commercially?
The first question you should ask when determining the importance of a model release is “Will this photo be used commercially?” If the answer is “Yes,” you need a model release. If the answer is “No,” you do not need a model release. Simple, right? Not quite! (Keep reading.)
Just because an image is published does not, in and of itself, automatically mean that the use is commercial. For instance, work that will only appear in newspapers, educational books, and consumer or trade publications does not need a model release because it is editorial use, sometimes referred to as “fair use.”
Commercial usage, on the other hand, can include advertisements, brochures, web use, greeting cards, catalogs, newsletters, etc. For commercial, licensed use, you absolutely, positively must have a model release.
What is and isn’t commercial use can sometimes be confusing. Assume that you have taken a photo of a popular local chef, but you haven’t obtained a signed model release. Your friend is the publisher of a local newspaper and he pays you for the photograph for use in an article they are running about the restaurant. Because the photo is being used as part of a news story, this constitutes editorial use. The fact that money changed hands does not automatically render it a commercially used photograph, and the lack of a model release isn’t a problem.
If, however, the restaurant’s PR agency wants to use the same photo as part of an ad campaign, you will need a model release. Remember, whether a model release is necessary depends on the use, not the content – here, we’re talking about the same photo, but with two different uses. One needs the release and one does not. Ultimately, there is no way of knowing whether you need a model release until you can answer the question of how the photo will be used.
The examples below illustrate the importance of the intended use when determining whether you need a model release. The protest image (on the left) was taken as part of a news story about cuts to the state budget for publicly funded art programs. It was editorial use, and therefore no model release was required. The chess game photo (top right) was for a commercial publication on local tourism. It required a model release for its original use, though it does not require a model release for its editorial publication here on dPS. The crowd shot at the bottom appeared in a news article about public education, which, as you now know, requires no model release.
Question 2: Is the subject of the image identifiable?
If you have determined that the use will indeed be commercial, the next question you have to answer is whether the person in the photo is uniquely recognizable and clearly the subject of the photo.
If the person is not uniquely identifiable, there is no need for a model release. But just like the shifting boundaries mentioned above, what does and does not constitute “uniquely identifiable” is not always cut and dry. Remember, there are ways to identify or recognize someone in a photo other than just their face. Sometimes a silhouette, a tattoo, a uniform, or even a location can identify a person without necessarily showing their face – and in those situations, you’ll still need a model release.
At first glance, the three photos below appear to have no recognizable subjects, which might lead you to think that model releases wouldn’t be necessary, regardless of whether the image use was commercial or editorial.
Let’s assume that all three images are indeed designated for commercial use. As far as the Parkview High School students (the top image) are concerned, let’s face it: parents and friends can identify each student easily, body paint, wigs, and sunglasses notwithstanding.
Tattoos (bottom left) are also fairly distinctive, rendering it a moot point that you can’t see the tattoo artist’s face in the photograph. The ink on her arms could be enough for someone to recognize her.
Finally, the artist in the park can theoretically be recognized, not because of anything distinctive about her from this angle, but because of the distinctive nature of her painting.
In other words, all three of the example images will require a model release, plain and simple (assuming they’re going to be used commercially).
Question 3: How and where was the photo taken?
At first glance, it doesn’t seem like this question should make a difference, but it does. This is where things like travel, candid, and street photography come into play. Photos I take in public places – streets, fairs, parks, festivals, etc. – generally do not require model releases, especially if they’re destined to reside only in my portfolio or on my walls.
Again, however, if I think there’s even a chance that I might someday want to use that photo commercially (see the first question!), I have to get a model release. That’s why I always suggest that photographers play it safe and get a model release whenever someone is recognizable and clearly the subject of the photo. You just never know what money-making images might be lurking in your archives until someone comes looking for them. It’s always easier to get the model release first rather than to retrace your steps later and hope for the best.
In this final set of examples, we see how photos taken in public places may or may not require model releases. As noted, street photography – regardless of recognizable faces – will not require releases unless they are intended for commercial use. From a legal standpoint, you can photograph anyone in a public setting, as long as you are not violating any other laws by doing so. That doesn’t mean it’s always a good idea, but that doesn’t make it illegal.
(Note: This does vary by location, and while it’s legal to photograph in public settings within the United States, it may not be true in other parts of the world – so always check the local laws before doing people photography in an unfamiliar location.)
When photographing children under the age of 18 for commercial purposes, however, a parent or legal guardian must sign the model release. Getting the minor’s signature doesn’t count.
What is commercial use? A simple definition
Simply put, commercial use is that which is intended to enhance a business interest. I listed some common commercial uses earlier, but it all boils down to whether someone’s use of the photos in question is aimed at generating revenue.
When I photograph an author for their book cover, it is clearly commercial. In addition to appearing on the back of the book, the photo may appear in advertisements for the book. It might also appear in bookstore windows promoting the book, the author’s appearance at signings, and other promotional events. All of this activity is clearly aimed at making money, so identifying commercial use is pretty simple.
What complicates the issue, however, is the photo you take for no reason other than to post it in one of the galleries on your professional website. Clearly, you’re not selling the actual image, so no money is changing hands. You are, however, using that person’s likeness as an example of the type of work you do in order to hopefully bring in more business. Your interest in using the photo is clearly commercial in nature.
There is no actual monetary gain from the image itself in this context, so the lines are blurred, but you do have a commercial goal in featuring it on your website. The same reasoning applies to hanging client photos in your studio. There is a commercial benefit to the extent that displaying samples of your work will encourage other potential clients to hire you. It is much better to err on the side of caution and have your subject sign a model release than to spend your time defending against lawsuits and cease & desist letters.
What should a model release say?
This is where a bit of a disclaimer is in order:
A model release is a contract. Most of the applicable principles are widely accepted, but laws do vary from state to state and from country to country. There are many excellent resources for creating model releases out there, so I strongly caution against simply writing your own document. Why reinvent the wheel if you don’t have to? If you have questions or are unsure about any aspect of this, play it smart and consult with an attorney.
The most basic tenet of contract law is that there must be a “meeting of the minds.” In other words, a valid contract is a two-way street, obligating each party in some way. Hand in hand with this requirement is that of “consideration.” In a legal context, “consideration” simply means something of value. As the photographer, you are asking the person you are photographing to surrender any right or claim they may have to how, where, and when these photos are used. That can be a big deal, and you should be prepared to offer them something of value in return. It can be a nominal sum of money, it can be prints, or it can be something else to which the two of you can agree. Contracts have been upheld for consideration as low as one dollar. The model release must acknowledge this consideration.
It is also important to remember that the photographer is hardly ever the actual publisher of the photo. The model release must therefore indicate that the subject is not only consenting to your use of the photos, but also that of whomever you authorize to use the photos.
Let’s go back to our example photo of the chef. Assume that the chef’s agent or publicist hired you to photograph the chef for the cover of their upcoming cookbook. Obviously, you are not the publisher. You will, however, be licensing the photo for use by the publisher. The only way you can do so is to make sure that the model release authorizes you to grant usage rights to a third party.
As noted, a model release can – and should – be short, sweet, and to the point. I keep a stack of this model release printed on 3″x5″ card stock in my camera bag. It’s short enough to be effective and valid, and it doesn’t confuse the subject to the point that they refuse to sign it. I rely on this short release for more spur-of-the-moment photography, whereas I use this longer version for commissioned work.
One additional note on the paperwork: keep it forever. Model releases aren’t records you can throw out after a certain amount of time. You will need the release if you ever want to license the image. And more importantly, you’ll need to release to defend yourself if you are ever sued.
Model releases matter!
Some people may be hesitant, or even unwilling, to sign a model release. You have to be prepared to respect that decision. It is certainly easier to get a person to sign a release when you have been hired to take their photos, rather than when you are roaming the streets, just shooting what interests you.
I always make sure that my clients sign the release before we start the shoot – assuming that a release is needed in the first place! Keep in mind that what can seem like a complicated process can be easily broken down into a fairly quick analysis. Ask yourself if the photo is going to be used commercially in any way. If the answer is “No,” the inquiry stops right there and you are free to hang that photo as big as you want on your living room wall. If you think, though, that there is any chance that you might one day want to license the photo for commercial use, obtaining a signed model release is an absolute necessity.
And once again, here is my “quick” model release, which I use for spur-of-the-moment photography.
And here is my longer model release, which is used for commissioned work.
Hope that helps, and good luck!
