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Model Releases and Your First Amendment Rights
Posted By Rohn Engh On September 18, 2008 @ 9:00 pm In Legal Matters | 4 Comments
Like most legal matters, the issue of model releases is open to interpretation. Unfortunately, in the post-9/11 era, many photographers seem to forget that they still have First Amendment rights — particularly for editorial photography.
Let’s take the question of model releases for photos of children taken in a public place. Do you really them? Generally, for editorial photographs, the answer is no.
In my 40 years of experience, I’ve rarely if ever found a parent who doesn’t enjoy seeing their child’s picture published in a magazine or book, or appearing in an art exhibit. A community art show or photo exhibit is not unlike your local newspaper publishing a feature photo in its Home Life section, or on its Web site. No attorney on a contingency basis would ever accept a case on the basis of invasion of privacy; these concerns are outweighed by the First Amendment.
The First Amendment Wins — or the Public Loses
Frivolous lawsuits of this nature occurred more often back in the ’70s and ’80s. You’d think it would happen more now — with the sensitivity and fear that’s prevalent in our society these days. But that’s not what I’ve seen.
Certainly, in the case of photographing children, many photographers choose to attain model releases simply because they don’t want to risk getting grief from an upset parent.
But what if you’re trying to capture images about child development, domestic violence, social issues, child abuse, child safety, child welfare, etc.? What if the subject doesn’t want the public to see the images — but the public needs to see them? As an editorial photographer, you must have the freedom to capture poignant scenes of what’s happening in your community.
What happens if you don’t have that freedom? The individuals — or corporate or government interests — that would wish you didn’t expose their blemishes are happy. And the public loses.
Believe me, Eugene Smith, Henri-Cartier Bresson and Margaret Bourke-White never walked around with a model release pad in their pocket.
Standing Behind Truth
Certainly, photography can be misused to hurt people. When an irresponsible art director uses a picture in an insensitive way in a magazine’s layout, distorting or misrepresenting the original nature of the picture, that’s wrong.
For example, what if a publication were to use your neighbor’s child’s picture in a story about teenage gambling? A parent could rightfully take that publisher to court, and win — if the implication indeed is not true. But in this case, the publisher — not the photographer — is to blame.
True, every case is different, and there are different interpretations of the law in different parts of the country. But wherever you live and work, you can always stand behind the truth.
You’ll often find burly security guards demanding that you not take pictures in their shopping mall. Well, it just so happens that the mall is an excellent location to find subject matter on community life. If a security guard attempts to take your film or camera or even hassle you unnecessarily, you should call the police on your cell phone. The guard will be arrested for attempted theft of your camera, if you choose to press charges.
By the way, be sure to carry around a “Bust Card”  in your camera bag. It’s a card you can carry with you and refer to on any encounter with the police.
Here’s an excerpt from a typical Bust Card:
Despite misconceptions to the contrary, the following subjects can almost always be photographed lawfully from public places:
- accident and fire scenes
- bridges and other infrastructure
- residential and commercial buildings
- industrial facilities and public utilities
- transportation facilities
- Superfund sites
- criminal activities
- law enforcement officers
It’s Your Duty
Editorial photography is not easy. If it were, everybody would be doing it.
To be timid about photographing a child in public because you’ve heard stories that you could “get in trouble,” is to deprive the viewing public of your talents and the way you see the world. You have to ask yourself the question, “Is this picture worth it? There’s a 1 percent chance that it’ll result in a hassle for me, and a 99 percent chance that it’ll belong in a retrospect of my work.”
If you’re still worried, here’s a challenge for you:
Can you document a case where a photographer was taken to court (whether they won or lost), for publishing a picture (regular editorial usage) without getting a model release?
Take note that I’ve said, “document,” and regular editorial usage. Photographers, Internet gossips, and my fellow photo columnists continually perpetuate the myth about model releases and all the trouble you can get into when taking pictures in public. But when asked for follow-up documentation, it’s never forthcoming.
So there. Photograph in public freely. Exhibit your work and sell your images in the spirit of informing the public. No judge in a court of law is going to fault you for that if you are sincerely interested in editorial photography. It’s your right. Even more so, it’s your duty to protect that right, by challenging those who would jeopardize it.
[tags]photography law, model releases[/tags]
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URL to article: http://rising.blackstar.com/model-releases-and-your-first-amendment-rights.html
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 “Bust Card”: http://www.krages.com/ThePhotographersRight.pdf
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