With the increasing presence of quality Smartphone cameras and affordable, pro-grade compact digital cameras, there are more people than ever who have the power of taking photos. But how many people are aware of the legal constraints that come with being a photographer, even on a hobby or amateur basis? Perhaps more importantly, how many of us know when it’s legally okay, or not okay, for someone to snap a photo of ourselves?
The answers to these questions are important for both photographers and photo subjects to know, so let’s examine some of the laws that have to do with photography. Before we dive into it, let’s also establish that these are the rules that apply in the United States in particular. If you are based elsewhere, or an American traveling abroad, it may be worth it to investigate photography rules pertaining to specific countries. Also, please note that I am not a legal professional and this is simply advice from another photographer based on experience and consensus of other online sources.
Public versus private places
First of all, let’s be clear that you are always free to sell photos of any subject without permission or a signed release, with one big exception: You cannot legally photograph people in private places without their expressed permission. In the United States, every citizen is guaranteed a reasonable expectation of privacy, meaning if you are in your home or on private property, you have the right to prevent someone from taking your photo if they are standing on your private land. However, the moment you step out into public areas, such as a public park, you forfeit your right to privacy and may be photographed by anyone without your consent. Thinking of this from a photographer’s perspective, it’s also important to realize that no one can legally prevent you from taking a photo in a public space, but they can do so in private spaces.
Editor’s note: Just because you have the legal right to take someone’s photo it doesn’t mean you have the right ethically if they do not wish to be photographed. Be respectful of others as you’d want for your own wishes.
Using someone’s likeness for promotion
Despite the above notion of freely photographing people in public spaces, it doesn’t mean you can do as you please with those photos. This is where the idea of a person’s likeness comes into play, and this same concept also applies to recognizable private property. In a legal sense, one’s likeness has to do with a representation of that person or private property being used to promote something, such as a product, service, or idea. Every person, whether it be a celebrity or your average Joe/Jane, has the right to protect his or her likeness.
Put into practice, this means that if you take a photo of someone in a public space and were to sell it to a publication or newspaper, you’re likely within your rights of doing so since that person and photo is not being used for the sake of promoting anything. However, you would be restricted from selling or using that photo for any sort of promotion, such as an ad for your product, service, or cause. The reasoning is simple: that person didn’t consent to having their likeness used to further your promotion. Imagine being dedicated to a specific political party and seeing your mugshot used in an advertisement to promote the opposing party’s campaign. If you didn’t agree to it, you would have the grounds to ask the opposing campaign to take your photo down.
When photo model releases come into play
This idea of protecting one’s likeness is where the need for photo model releases becomes necessary. As a photographer, it all comes down to intent. If you snap a photo knowing there’s a high chance you’ll use it to promote something, it’s best to evaluate that scenario for any instances where a model release might be necessary. In fact, photo releases aren’t just for people. Depending on the use of the photo, you may also need a property release for privately owned buildings. Again, it all comes back to how you plan to ultimately use the final image, as well as the specific rules set in place by the agency or company selling the images. Below are some specific scenarios when you’ll want to have a photo (model or property) release.
Selling images as stock photography can be a way to make a small, yet somewhat steady side income, but it does come with the expectation that any shots with identifiable people or landmarks come with a photo release to make them commercially licensed. The rules may vary according to the stock agency you work with, but most agencies require releases because there’s a high chance customers will use the photos for commercial purposes to sell something. In these cases, the likeness of people will need to be protected, or at least authorized, for possible commercial use via the photo model release.
There is one exception to the stock photo rule. In some cases, stock images of people can be sold without a photo release, but only for editorial use in magazines, newspapers, textbooks or other such publications. The one catch to this scenario is that the payout for editorial stock photos is usually significantly lower than if the same photo had a signed release and a proper commercial license. If you have any aspirations of making good money by selling stock photos, you should definitely consider going the commercial licensing route.
With the number of photo contests available today, many photographers wonder if model or property releases are needed to submit photos to these contests. Again, it all comes down to intent. Some contests are hosted by companies who may want to use those photo entries for possible commercial use, in which case they’ll need signed photo releases. However, consider a magazine that wants to publish winning photos in an upcoming issue, or print images for an exhibit or gallery. In this case, photo releases most likely won’t be necessary. The bottom line is be sure to read the fine print before submitting your work to any photography contests and be on the lookout for how your submitted photos may be used.
In a nutshell, this is a brief summary to photo releases and some common scenarios when you may want to investigate the need for one. Do you have any advice or questionable encounters with photo releases to share? Let us know in the comments below!