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Don’t Buy In to the Model Release Myth

Posted By Rohn Engh On August 26, 2010 @ 12:07 am In Legal Matters | 13 Comments

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The myth I’m writing about today has undoubtedly caused thousands of excellent, award-winning photos never to be taken. It’s the myth of the model release for editorial use.

Photography columnists, unaware of their First Amendment rights, have been fanning the fires of this issue for years. A wall of mythology has built up around the subject, and I’ll make the first move to break it down for you:

No, editorial stock photographers: you do not need model releases.

To Inform and to Educate

About two million dollars a day are spent in the publishing of editorial stock photography, where the essential use is to inform and to educate.

Photo buyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. These are rare cases involving highly charged subjects, such as drug abuse or certain medical issues.

A good rule of thumb would be to ask yourself, “Would a newspaper photographer ask for a model release in this situation?”

Whatever the answer, take the picture anyway. The photo editor will be the one to determine if the image can be used.

Wearing Two Hats

You might now be asking, “So why was I under the impression that model releases are always required?”

Part of the reason is that most teaching and training for working photographers in the United States is slanted to commercial photography, where you do need a model release.

As stock photography has grown and become more prevalent, commercial photographers have expanded into media photography, and brought with them the assumption that a model release is always required.

Some editorial stock photographers like to get model releases so they have the flexibility to use their photos for commercial purposes, such as advertisements or endorsements.

As my friend Jim Cook, creator of METAMachine [2], says, “My accountant loves me for getting model releases; so does my wife.”

Some photographers can wear two hats, commercial and editorial. Try it. You might be built for it.

Personally, I’m not. I stick to the editorial side of selling stock.

A Powerful Ally

You — as an editorial stock photographer operating a business in a free society — have a powerful ally on your side. It’s the First Amendment of the U.S. Constitution.

The First Amendment, in effect, says you can take photographs in public (no model releases needed) as long as you are not breaking any local laws, such as trespassing.

It would be a bureaucrat’s dream for officials to be able to say, “You can’t photograph in my school, my police precinct, my park.” In reality, these people (school principals, police officers, etc.) work for you. They are your civil servants. Your taxes pay for their buildings, equipment, and salaries.

As long as you are not interrupting their normal course of duties, you can photograph them.

Deep Pockets

From time to time, there are lawsuits challenging the rights of photographers. But if you examine each case, the plaintiff almost always goes after the publisher with deep pockets, not the photographer. And the plaintiff rarely wins.

Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment rights, and in so doing, they protect your First Amendment Rights.

So go out and photograph freely in public. You’ll be in the good company of Margaret Bourke-White, Henri Cartier-Bresson, Dorothea Lange, Arthur Rothstein, and others. And the world will be a better informed and educated place for your efforts.

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13 Comments To "Don’t Buy In to the Model Release Myth"

#1 Comment By Markku On August 26, 2010 @ 3:17 am

Hi and thanks for great post!

I have been wondering for some time now that can I sell posters of my photos that do not have model release? Is that ok? So can I sell poster young man standing at street corner if I do not ask his promise?

#2 Comment By Scott Bourne On August 26, 2010 @ 11:35 am

While I agree that you generally do not need a model release for editorial work, in practice there are publications that won't buy your photo without one. Also, in our litigious society you may get sued. So what if you win? So what if it IS your right? If you spent months and money in litigation you did nothing but prove a point. I agree that you should shoot the picture no matter what. But I'd also try to get the release no matter what. Or not - and you can scream "First Amendment" at the buyer who won't buy your shot or the process server who drops a "Notice to Appear" on your door step. Let me know how that works out for ya!

#3 Comment By {Sarah} On August 26, 2010 @ 4:27 pm

This was a great article!

One thing you forgot to mention though. As far I know from photo school, taking pictures of children without parents consent, even in public, for monetary gain is illegal :)

#4 Comment By Todd Klassy On August 27, 2010 @ 1:07 am

And what about those instances when a newspaper or magazine offers the "buy this photo" option to its web site on every photograph? Doesn't an editorial image suddenly become commercial?

#5 Comment By RMoore On August 27, 2010 @ 1:57 am

I have a photo I took over 25 years ago of someone who later became a very famous performer (they're still working). The shot was taken at this person's home and was posed for my camera. I'm wondering if I'm likely to run into problems if I have it published, and are publishers likely to ask for a release? Also, does using a photo in promotion of your own photography business constitute advertising?

#6 Comment By deborah davis On August 28, 2010 @ 8:42 pm

Does anyone know the law regarding using shots of people on the street for fine art photography that would be exhibited in galleries? I'm gathering that no model release is required, but does anyone have any experience with this?

#7 Comment By Eve Roth Lindsay On August 29, 2010 @ 12:54 am

Dear Rohn

My father, Arthur Rothstein, would have been happy to see your article. His photos told a story and he was very proud of being able to take photographs of people doing everyday things in life. If you have to ask for a release everytime you take a photo as a photo journalist, it ruins the spontaneity of the moment. Just think of all of those FSA photographs that wouldn't be there. This is different from commercial photography though and photographers know the difference.

Thank you for including his name.

Kind regards

Eve Roth Lindsay (Eve Rothstein)

#8 Comment By Rob Walls On August 29, 2010 @ 1:56 am

I've been a professional photographer for 48 years working in editorial and commercial photography as well as stock. Perhaps just through using common sense, I've not once encountered the slightest whiff of legal action.

I believe fear of litigation is more prevalent than litigation itself. Whenever this subject comes up in discussion amongst photographers, I ask if can anyone can hold their hand up to being sued. Everyone has a story about someone else, but I'm still waiting to meet someone who actually has been on the receiving end of litigation.

I believe Rohn, has written before that lawyers don't sue photographers, because they know it's not worth the trouble. I think he is right...

#9 Comment By David On August 31, 2010 @ 8:07 am

The question that comes up in my mind is how you define what is an editorial photograph and I guess the easiest way would be to take a look at your stock photography - who do you sell stock through?

#10 Comment By Novabear On September 1, 2010 @ 8:57 am

It seems people are still confused in these comments.

Model Release required: Any use of a photograph where a recognisable image of a person is used to advertise or represent a product, business, service, concept or process. If the image also includes a recognisable trademarked product or privately owned building, you will probably also need releases for them from the owners of the trademark/building. If an image is taken on private property you must have written permission from the owner (but this is beyond the model release subject), and you may not take an image of private property from a public place if your doing so prevents their enjoyment of said property (e.g. climbing a tree on the sidewalk to see over a wall so you can photograph someone swimming naked in their swimming pool on their private property), but this is also beyond the scope of releases. Further, military sites, military personnel, military equipment are usually a no go in most of the world, and photos taken ON the highway are technically illegal (though you can photograph it from ground next to the highway, or from a foot bridge above it, for instance).

Model Release NOT Required: Any other use of an image, regardless of who or what is shown. If someone standing in a public place who says 'I do not give you permission to use this photo for any reason', hard luck to them. So long as their image is not used to advertise something, they have no say in the matter. On the other hand, I try not to offend so, if I could avoid using their image, I would.

Also, if an image of someone is used to advertise, but the person is unrecognisable (e.g. their hand is holding a soft drink can, and that's in focus but the rest of the body is out of focus (and could be anyone), you don't need that person to sign a release - unless their hand is marked in some way to make the person recognisable just from that portion of their body (like someone famous with a unique hand tattoo) - in order to use that person's image to advertise the soft drink for the manufacturer, but if the image is used to advertise something else then you would need permission from the soft drink manufacturer to use the trademarked can in your image. Make sense?

In answer some of the points raised in comments:

1. Kids: You do have the right to photograph kids for editorial use. Any use that would normally require a model release still does, but it must be signed by the child's parent or guardian instead as the child is not of age. Personally, I wouldn't photograph kids that are not part of my family or my friends' families except at the request of the parents, and I wouldn't take a single shot without a properly signed release.

2. A person on a street: You don't need a model release as long as that person's image is not used to promote a product or service or concept in some way. For instance, as a fine art print for sale in a gallery, no problem, but as a poster campaign saying he looks like everyone else, but actually he has AIDS, so use protection - this is not acceptable, as you have associated the individual with a product, concept or service. Also, technically, if you were standing in the street when the photo was taken, it cannot be used for any reason, but the chances of ever having any difficulty from this is extremely remote. If just for sale as an aesthetically pleasing print, I don't see an issue with it.

3. Before they were famous: For use as an editorial image of this famous person, it's perfectly fine, and you don't need a model release, but should be sure to sell it strictly for editorial use. The fact that it was taken in a private home - well, again, for editorial use, it's fine, as you won't be advertising something by using the image of the private residence. As the person is posing for the camera, it clearly was not taken in such a way as to prevent that person's enjoyment of their home. There may be a risk if they are using or wearing identifiable branded items - the publisher will assess this risk.

4. Saying you might get sued - that's pretty unlikely if you didn't break the rules above, and frankly, even if you did. It is the publisher's risk to print with or without a model release, as they are the ones who will use an image in a certain way. If content is editorial, e.g. a photo taken at an event with hundreds of recognisable people, holding trademarked objects, in a public space or private space that is let specifically for a public event - this photo does not require any release whatsoever, so long as it is only used to illustrate an article referring to an event taking place, and nobody in the shot is specifically referenced (though if the article said, here's Mike Albright at event X drinking a Coke and holding an Apple iPhone, you definitely would need releases, as you are associating the person and the trademarked items - it might give the impression that Mike Albright is supported by Coke and Apple, or that Mike Albright endorses Coke and Apple products, which could influence readers).

Normally, you will not have any control over how your image is used when sold as stock, nor who it is used by, how it is modified, or anything. The photographer supplies an image with or without releases and possibly provides some information about where it was taken and why, and it's use is then down to the purchaser of the image, and the risk of publication is theirs.

#11 Comment By Rohn Engh On September 4, 2010 @ 12:44 am

Good response Novabear. Thank you.
The model release myth has long been self-perpetuating, and you can see by some of the responses in this thread that some photographers, in spite of their best intentions, continue to perpetuate the myth, and seem either unaware of their First Amendment Rights, or they don’t care about exercising their rights or eventually losing their rights.
So often in the journey of this myth over the years, there looms the phantom of some entity that’s going to sue a photographer for big bucks or put him/her in jail for not getting a model release. As Rob Walls above said, this fear of litigation is more prevalent than litigation itself.
And because of this fear, some photographers fail to capture award-winning photos that could, for example, fill a retrospect coffee table book when they’re ready to retire. It’s a shame. Lost meaningful pictures due to ignorance, and from very good photographers. . If you’re just starting out, I hope that reading this will help you avoid that happening to you.
If you’re not sure what this genre of editorial stock photography is, pick up a copy of one of Rick Smolan’s “Day in the Life” series of large format books.
When this model/property release myth comes up, it usually goes like this: “I heard a photojournalist stock photographer was sued by taking a picture in public without permission.” Or something like that.
Well, I think we ought to find this mysterious fellow who’s been sued. For people who have told me a tale like that over the years, I’ve asked them to send me documentation. I also tell them I’ll give them a free ($375.00) subscription to the PhotoDaily if they can send me the documented case. Nobody has ever come up with the documentation and won the prize.
So here again, I propose the following to Scott Baradell’s BlackStar/Rising forum that we find out who this infamous beleaguered editorial stock photographer is, who lost, and is now, well, …defamed.
I’ll offer the subscription award if Scott will offer the space to get the following inquiry going:

- - - - - - - - - - - - - - - - - -
Here it is:
Advance Notes: Editorial (non-“commercial”) stock photographers are protected by the First Amendment (Freedom of the Press) when it comes to publishing their work that informs and educates here in the USA, so far.
Editorial stock photographers purposely deal with specific targeted photobuyers whose subject needs can match the photographer’s brand of stock photography at publishing houses that inform and educate the public. (We’re not talking trade magazines that are PR arms for their sponsor.) In so doing, these editorial stock photographers are on a well-earned good-relations basis with their photobuyers, usually for long term.

Title: “The search to find that mysterious editorial stock photographer who was sued by somebody or some entity and lost the case, was fined, and/or put in jail.”
THE RULES TO THIS LITTLE INQUIRY:

1.) The person is an editorial stock photographer. He/she can also be a commercial photographer, but the situation in question has to be editorial stock photography, not commercial pictures taken for promoting/marketing a commercial item or project.
2.) The incident in question did not involve extenuating circumstances such as theft, infringement, slander, blasphemy, defamation, a smear campaign, trespassing, -all reasonable sensitive areas to avoid. And we’re talking about the photo itself, not the character of the person making the photo.

3.) The incident must be a USA situation, not abroad, such as in Germany or France, where they have different views on freedom of the press.

CONCLUSION: If you don’t want to be sued, then become an editorial stock photographer. Buyers are waiting for your brand of editorial stock photography. Google will find for you whom you ought to be seeking as long-term buyers of your work.

#12 Comment By Bob Rogers On September 30, 2010 @ 8:38 pm

I find this article very useful. I am looking for a profitable direction to take my skills as a photographer.

On the website [3] I am publishing art and journalism, one image per day.

I have a question: Seeing as the world is not flat and on the internet geographical boundaries are for all intents and purposes non-existant, how does US law affect those living outside the US?

#13 Comment By Susan Blick On May 9, 2012 @ 10:32 pm

Ive been trying to find specific info on this issue for ages. You say: "The First Amendment, in effect, says you can take photographs in public (no model releases needed) as long as you are not breaking any local laws, such as trespassing."

But does that mean I can SELL the photo without a model release, as for example on my webpage etc?

Thanks.


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