Many photographers know what photo releases are, many do not know, and far too many do not even care. But do you really need a release for any of the shots you have taken or will take? Although the answer to that question is a definite “maybe,” there is no question as to the fact that you do need to know the basic ground rules if you don’t want to end up in court.
Let’s start out with what releases cover. There are two types of photo releases, the “Model” release and the “Property” release. A model release covers people, and only people, whoever they may be, and they do not have to be a paid model like you would see in an advertisement. Some people may use model releases for animals, but when it comes down to it, animals are still always property, so a property release should be used to cover all animals and everything and anything else that someone owns.
Now let’s cover the easy part of both of these areas, that being when you do not need a release for your pictures. No matter what you take a picture of, you never need a release as long as the following are true:
- The image is only used for your own personal enjoyment (and that does not mean that you would enjoy seeing it in a paid national ad)
- The image is used for educational purposes, such as for in a classroom demonstration
- The image is used for any news-worthy reasons, such as recording an accident or a public political demonstration. As long as you are not on private property when shooting, you do not even need to ask permission to take a picture of anyone or anything. However, asking permission would be the considerate thing to do if you’re shooting on someone’s property, because you are then subject to trespassing laws.
When do you need a release?
Now for the part that you really do need to know about, when you do need to get a release if you do not wish to find yourself in the middle of a libel suit. The simplest way to put it is: if you want to use an image to make any form of profit, you need a release, be it an image of a person, or someone’s property. Profit does not have to be in the form of money either. You profit even if you use an image just to promote your services, whether it appears on your business card or is used in a brochure.
Many publishers will not even look at an image if a needed release cannot be provided. Although many images could be used inside for illustration purposes, they will still want a release in case they should ever want to use a published image again for some other reason, such as a website promotional piece. The bottom line at the majority of publishers and ad agencies is: no release, no sale.
Whether photographing a person or their property, a release is your only way of dealing with the matter of “invasion of privacy”—the privacy of those you photograph or the things they own. We do not have a constitutional right to use the images of everything we shoot, but everyone does have a right to be protected from others profiting from such images. The only exceptions are those listed earlier for personal, news, or educational reasons. Those last two uses being protected by the amendment for Freedom of the Press.
We all pretty well know that there is a need for a release for a person’s image when they are recognizable, but what about property?
Again, recognizable is the key word here. If you are shooting the front of a building because you like the architecture, and anyone who sees that picture could tell what business that image shows, then it is recognizable and you need a release. If you are shooting it from two blocks away and the front of that business happens to show in the picture, but it looks like any other business, and you could not tell if it was Smith’s Dairy or Jones Shoes, you do not need a release. The main factor in this judgement call that a court would look at is if the average person on the street could look at that picture and be able to tell what business or building it is—then it is recognizable. The key words here are “average person on the street.” Also if there are any signs on a building that would show who owned it, you would need a release. Recognizable property, such as an historical home, is a major reason for a property release. You have to use your head with certain things here.
Is it even worth it to try to obtain a release? Well consider this fact. Let’s say on your last trip you shot an outstanding image of a small child standing on a forest path and looking up at the first giant redwood tree she has ever seen. It’s an image that any travel agency would kill for, but you don’t have a release for it. If you did, having it used in a national ad promotion could make you an easy $1,000 to over $10,000, but without a release you can only expect to get from $50 to maybe $250 as a story illustration—if you are lucky. Beginning to look a lot more appealing, isn’t it?
Do you need a release for photographing artwork?
The illustration I have here shows another area where a release is needed. Photographing another person’s artwork, be it a painting, sculpture, or whatever, you need a release to use it for profit. In this case it is a matter of copyright laws. An artist owns their work just like a person may own a home you’d like to photograph. This mural painting was done on a wall along the coast in Huntington Beach, Calif. and although I was not able to find the artist, I was able to get a release from the city, since the wall is city property and they are the ones who sponsored the project. This however still may not satisfy every photo buyer. To be perfectly safe, many publishers would just as soon pass up on the opportunity to use it and figure that it is better to be safe than sorry.
When it comes to artwork, you are even more open to a lawsuit than if you just photograph a person who doesn’t want their picture taken. The artwork belongs to the artist, right down to the last little square ¼ inch in the corner, just the same way that the picture that you take belongs to you, and without permission in the form of a release, it is basically the same as stealing their work to use for yourself. You cannot legally, or morally, use it for magazine stories, photo contests, framed print sales, or even as a gift to clients, and the freedom of the press also no longer always applies. You are taking it without the owner’s permission, and in the eyes of the law, it is not really that much different than if you were to go into their home and walk out with the print from off their wall.
Can you get away without a release?
Many people do, but many also find out the hard way that it can be more costly to make a sale that way than to not make a sale at all. Falsely saying that you have a release for an image can not only get you sued by one party for invasion of their privacy, but also sued by the buyer who used it under false pretenses. That goes for other areas as well, such as photo contests. Most contest sponsors spell right out in the rules that you must have a release for all images of a person. Probably the most damage that such practices can cause you is when the buying market finds out that you operate under less than ethical practices, you will never make a sale to them again. As soon as they see your name on an envelope, or an image, it will go straight into the trash. As soon as they feel that they cannot trust you, they will never be dealing with you.
What all is needed on a release to keep you safe and out of court?
Basically, all it needs to state is that the other party gives you permission to use their image or of their property. It should say that they have received some sort of compensation, which could be as little as a print. Then sign and date it, and a witnesses signature would also help you a lot. Releases can be as simple as that, or as detailed as a business contract. Both have their benefits. The shorter ones will make the other person feel a lot more at ease and not like they are signing their life away. The longer ones will more fully protect you by spelling out any and all conditions of the release, therefore giving you total protection under the law. You could always just carry a copy of each.
Standard model releases can be found in most camera stores, or you can make up your own and print it out, or sent it to a printer for a large supply made up into pads. There are many releases right online that you can just copy and print out. Just be sure that the site allows you to do that.
When it comes to releases, your motto of the day should be “be safe, or be sorry!”
This article is in no way meant to be considered as legal advice, and since states may have their own laws on this subject you should always consult a lawyer if you have any questions about privacy laws.
About the Author
Paul W. Faust is a self-taught Photographer, Writer, Digital Imaging, Photo Restoration, and Photo Stock Service professional. You can see more of his work at: www.Impressions-of-Light.com and www.redbubble.com/people/pwfiol/portfolio.
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