The recent case of Virgin Mobile using a Flickr photo in an ad campaign without the model’s permission has once again raised the issue of model releases. When are they necessary, and when are they not required?
The rule of thumb is that editorial usage does not require a model release; however, advertising, promotion, and endorsement usage always requires a model release. Most amateurs are not familiar with their First Amendment rights and the fact that model releases are not required for editorial use — so when a case like Virgin Mobile comes up, early-career photographers tend to panic.
To add to the confusion, some photo editors state that they require a model release when by law they don’t need one. They often do this simply to weed out amateur photographers. Pro stock photographers know what’s what concerning editorial usage. They ignore the reference to model releases and submit their photos, with or without model releases.
You’ll find that photo editors at editorial markets will welcome any non-released photo that matches their current need (when they are going to use it for editorial purposes). Publishers fiercely protect their First Amendment rights. A policy of actually requiring model releases for publication could reduce the flow of quality photos coming into their publishing houses, which would greatly reduce their output, and might even put them out of business.
Since photo editors at most publishing houses hardly ever deal with advertising or other endorsement-type assignments, it’s rare that they ever need a model release. When they do need a release, it’s usually because they are working on a project of a particularly sensitive nature, such as drug abuse, mental retardation, sex education, etc. In those cases, it would be appropriate to ask for a model or property release.
We deal with dozens of photo editors daily here at PhotoSource International, from small regional magazines to national book publishers. Rarely do they ever ask for a model release. If one does, it throws up a red flag to us as an indication that the photo editor is new to the field of publishing and might not know, not only their rights, but your rights as well. We avoid publishing photo requests from such an editor.
I’ve met competent photographers who were unaware of their rights regarding model releases and other legal issues, and consequently took years before they got squared away and took the step to properly market their photography.