Do I Need a Model Release?

Black Star Rising received the following question from a reader, Manuel Pecina of Studio Gonzo in Dallas:

I have recently been asked to produce model releases for an art exhibition at a local university. The work being displayed was shot during a theater play and is documentary. Do I need model releases for this work? There will be no sales.

Thanks for your question, Manuel.

When photographers take photos of people, they must be careful to not invade their privacy. Generally, when people are in public areas, the people have no expectation of privacy so the photographer does not violate anyone’s right of privacy when taking their photo.

After the photo is taken, however, the photographer should be con­cerned with the person’s right of publicity. A photographer violates a person’s right of publicity when, without permission, the photographer uses a photo of a person for the photographer’s own benefit, sometimes referred to as “commercial” use as opposed to an “editorial” use.

What Makes a Photo Newsworthy?

The use of a photograph is considered to be editorial when it is newsworthy. “Newsworthiness” is a First Amendment interest and is broadly construed. Courts traditionally have defined newswor­thiness in liberal and far-reaching terms, extending it to include all types of factual, educational and historical data, including en­tertainment, amusement, and other interesting phases of human activity in general including fine art — such as the photographs displayed at a gallery.

Documenting events by sharing photos of activities such as a neighborhood party generally are considered to be editorial uses of photographs. For example, the photo company doesn’t need your permission to sell prints of you while you are white-water rafting, riding the roller coaster, or at the prom.

Defining Commercial Use

Commercial use of a photograph usually occurs when the picture of the person has been used for advertising, endorsement, or trade purposes. While the photograph of a per­son may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. But when a person’s likeness or name is used in a commercial manner, the photographer/publisher of the photograph needs the person’s permission, usually documented by a model release.

Even when a photo is used editorially, the person in the photo (or the child’s parent) can get upset when you show photos without the person’s permission. Especially in the post 9/11 era, people get spooked by photographers. Photographers must decide for themselves whether they want to risk the potential to anger others. But photographers shouldn’t be intimidated from exercising their rights.

In sum, the specific laws related to rights of privacy/rights of publicity are dictated by each state and/or country. Check with your attorney for your specific circumstances.

[tags]photography law, model releases[/tags]

7 Responses to “Do I Need a Model Release?”

  1. Thanks for this useful and informative post.

  2. It's a sad post, actually, sad because this is where we have ended up. The great days of documentary photographers working to record the world is distinctly over, and the loss from here on out will be more miserable than we know.
    Photographers recorded a lot of our daily history, and now with the need to release everything, there will be no future documentation in the same way.
    I read this, and a wee part of me wants to cry.

  3. This makes me cry as well.

    I think Garry Winogrand would roll over in his grave as well as many other amazing street photographers.

    People I deal with usually don't mind their picture being taken in public but all it takes is one publicized story about a person suing a photographer for money and this will explode.

    This is the same way that fast food places got sued every time some one had a tummy ache after eating there in the 90's.

    Very informative though thanks for posting 🙂

  4. If I read the post right it says that street photography or reportage doesn't require a model release and that a release is only needed when your using the person's image to endorse a product or idea.

  5. Quick copyright question. If a person appears in the photo and that person happens to be the photographer (although the face in not shown), is a model release still required?

  6. That paints and interesting picture, Lars. Did this photographer take the photo in the mirror? If he/she appears, how will they sue themselves if they do not release? Additionally, if there is no face showing, it's a lot harder to sue considering it's a lot harder to identify the person.

    In a lot of fashion campaigns the clients cheap out by cutting off the models head (not literally) so releases don't have to be paid for.

  7. Great article. Totally agree with her.

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