The When, Where, and How of Model Releases

"It's not that I don't trust you..., but I ask all of my subjects to sign a release."

Every student making the transition to paid professional is faced with learning the rules and regulations of their new work environment. For most of us, that means office politics and human resources, but for those of you who are self-employed either as a studio owner or a free-lance photographer it means not getting sued! One of the most common areas of concern for photographers is every person's Right to Privacy.

The question that most photographers have is: When do I have to get a model release? In the vein of Oprah Winfrey, I'm going to tell you what you need to hear rather than what you want to hear -- and that is get a release whenever you shoot a subject! Period! End of the article! Actually, that is the best advice. There are of course some exceptions, if you shoot a crowd scene at a public event, you do not need to get a release for everyone in the crowd. An individual does not have a reasonable expectation of privacy if they attend a nationally televised football game. If their boss sees them in the newspaper crowd shot when their supposed to be home sick, they cannot sue the photographer. Public events are by nature - not private (yeah yeah it's obvious, but I'm just trying to help). In that same vein, photographs of newsworthy events do not generally require a model release when used in the coverage of that event, however, using that same image in a commercial setting or a news item unrelated to the subject of the photograph requires a release.

There are a couple of other things to keep in mind regarding model releases. First, you do not have friends -- you have subjects! Repeat after me "I do not have friends..." This is one of the differences between amateur and professional photographers. Imagine this: you include a print in your portfolio because it's a great shot featuring your best friend as the subject. An ad exec sees it and decides she wants to use it and pay you tons of money for the privilege.

Suddenly, your friend decides he wants a cut of the profits, which you immediately agree to because you are a good person. But there is a dispute over how much of a cut: you want to give him 1/4 of one percent and he wants 90 percent. Now you're no longer friends (he was being totally unreasonable) and he is suing you and the ad agency. If you lose the case, which you probably will, you'll have to give him your car and all of your cool clothes he has been coveting for years -- plus there isn't an ad agency in the world that will hire you after this fiasco. This would be a much better fantasy if you had gotten a release.

The other area of concern is children. Yes, the wee ones are cute and all. Advertisers love to use them in campaigns, but beware the parent freak out! Understandably, parents are a protective lot and when it comes to displaying their child's image you never know whether they are going to be thrilled or freaked. Worse yet, if they start out thrilled and than get freaked, this is how most photographers get in trouble. You need the signature of a legal guardian to release a minor's image and you should get it every time or don't use the shot. If you think your best friend above came down hard on you, just wait until you're faced with a freaked out parent!

How to protect yourself

Getting a model release is a pretty simple thing.

Step 1) Obtain a signature

Step 2) Provide Compensation

This simple two step process will provide you with some basic protection from lawsuits. However if you really want to protect yourself you should insert a third step. Providing any form of compensation in exchange for the model's service turns your model release into a legally binding contract. It really doesn't matter what the compensation is (provided you're not trading illegal narcotics or Uzis for the release, which may be a contract, but doesn't satisfy the "legal" part). A contract is just an agreement between parties in which goods and/or services are exchanged. In this case, you would be exchanging the release of that person's image for, let's say, two cans of Dr. Pepper and an agreement to never order anchovies on any joint pizzas again. On second thought, keep it simple. You could exchange the release of the person's image for an 8X10 print. You could even offer a discount for future services. The compensation should be expressly noted in the model release and it should be of some consequence. In other words, providing someone with an empty Dr. Pepper can would probably not be considered compensation by a court of law. Don't be a cheap skate, spring for a 20 ounce.

Again, it's important to note that a minor can not sign away their own image. They do not have legal standing to sign contracts. You will need to get the signature of a parent or legal guardian in order for the release to be valid. In a case where a minor's image is involved, it is especially important that you, the photographer, obtain a release. Parents are naturally hysterical creatures (this is only based on my mother so please don't send hate mail to SPS- hi mom) and it is always best to dot your I's and cross your T's. In all fairness to parents, it's their job to be worried about their children and it is best not to get in their way.

The last thing that I would recommend is to keep professional files. If you can't produce the release when the time comes to defend yourself, than it's like never having gotten the release to start with. There is not an excepted period of time that one should maintain a file on each release, but I would recommend that you hold it for as long as you reasonably can. They're small, they don't take up much room, so please hold on to them, just in case.

Finally let's review,

Step 1) Obtain a signature

Step 2) Provide Compensation

Step 3) File it

It's a heck of a lot simpler than having to defend yourself in court or declaring bankruptcy in order to avoid a court judgment.

Where

When discussing a person's right of privacy as it pertains to photographers we are not discussing the constitutional right to privacy, which is a right identified as protection from government intrusion. Rather the right of privacy in this case is defined by the states either through judicial precedentceprecedence or statute. One of the problems with rights that are defined by the states is that there are basically fifty different variations of the law. Especially in this case since some states have explicit statutes and others rely on common law as determined by the courts. This means how much potential trouble a photographer can get into for using an image without a model release depends on where the image is taken and in some cases where the image is used.

As one would expect, the two states which are generally considered to have the toughest laws on this matter are New York and California. It makes sense, as these two states have a lot of celebrities and the corresponding paparazzi (Georgia has at least one Backstreet bBoyboy who lives here, but we don't like to brag about it). For example, in New York a photographer can be sued for thousands of dollars in damages for each copy of the image distributed. Even though most states are not as tough as New York, a plaintiff will find some grounds to sue in every state.

To demonstrate the horror one could face let's outline another fantasy scenario. You decide to take a shot on a whim, which means that of course you don't have a release handy and you're really not that worried about it since it's not part of a professional job. Some time later you display this image as part of a show, a record exec sees it and commissions it for a CD cover. This is your dream come true. It's a small release with only 10,000 copies distributed in the first run. Unfortunately, when one of these copies is noticed by a subject in the image, you are faced with a lawsuit demanding compensation for each of the 10,000 copies. This means that your "chance of a lifetime" has turned into the headache of a lifetime.

The moral of the story? Even though it's an incredible pain to get model releases from your subjects, it's not nearly as painful as being sued for all your worth - and then some. Be sure to keep your release forms with your camera and get a release anytime you shoot a subject who will be recognizable in the image. This will ensure that profits from your work go to support you instead of someone's attorney.

Sample Model Release Form

I, {print name of person giving the release}, for good and valuable consideration, the receipt of which is hereby acknowledged, hereby irrevocably authorize (put name of photographer or studio including location-meaning owner of the copyright) to use photographs of meand or my property and authorize him/(her/their and his/her/their assignees, licensees, legal representative and transferees to use and publish (with or without my name, company name, or with a fictitious name) photographs, pictures, portraits or images herein described in any and all forms and media and in all manners including composite images or distorted representations,and the purpose of publicity, illustration, commertial art, advertising, publishing (including publishing in electronic form on CDs or internet websites), for any product or services, or other lawful uses as may be determined by (the photographer or studio name here). I further waive any and all rights to review or approve any uses of the images, any written copy or finished product. {(bold this)-I am of full legal and and } (delete the bold area if this is for a minor) and have read and fully understand the terms of this release.

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[Description of images]

_______________(2 full lines)_____________________

__________________________________________________

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Signed___________ Witness____________ Date____________

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(If use is for a minor add:)

I am the parent or legal guardian of the above mentioned monor and have the legal right and authority to execute the above release on behalf of the minor.

Signed___________ Witness____________ Date____________

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