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A friend and commercial photographer Richard Thomas has kindly written this article regarding Model Releases. It certainly opens ones eyes to the interpretation of the law and is worthy of debate.
Searching through cyberspace you will find countless references about the law regarding model releases – they’re all wrong, every single one of them!
Why? Because there is no law in any country throughout the world that covers model releases, and I doubt you’ll even find any statute law that includes that term, and yet a model release is a legal document – confused, read on.
A “model release” is the terminology that has been attached to the document that forms a contract (agreement, understanding or whatever you want to call it) between you the photographer and another person a.k.a the model. It doesn’t include any agencies you sell your work through or indeed any end user or client of the photograph, and this is where the confusion about the law and model releases originates. Many people who have written things on the internet regarding model releases have taken their guidance from what stock agencies (picture libraries) or end clients (ad agencies, publishers etc) have demanded, however that is down to their individual policies and is not based on any law – because there isn’t one.
So in answer to the question “Do I legally require a model release to sell or use a photo containing a recognisable person for commercial purposes” the answer is No.
BUT the answer is also Yes, and the reason for that is no agency or client will sell or use the photo if it contains someone who can be recognised unless you supply them with a model release.
So why all the fuss and why the requirement for a model release in commercial use but not editorial?
In brief if a photo is used for commercial purposes and that photo contains someone recognisable it means that person is therefore connected with the product whether they directly endorse the product or not, I could give you thousands of examples of why this could be a bad thing from the persons point of view and why it would infringe on their legal rights, everybody around the world has a right to privacy and there are various laws that cover this, to use their photo to endorse a product or service without their permission breaches this right. They also have a right to identity. There are various other terms you’ll often see used in relation to model releases and they include “defamation” and “recognisable” both of which are also legally defined dependent on which country the photo was taken. (One of the most common myths I see used is that if the person in the photo recognises themselves then you must have a model release, that’s one made up by the agencies, the law regarding identity differs around the world and many countries adopt the ‘third person’ ruling i.e. the person has to be recognisable by a third person.)
Editorial usage is a completely different matter and you don’t require a model release, however the publishers still have to abide by other laws – for instance I’m a married, working father, if someone took my photo whilst I was walking down my local High Street and it was used in a newspaper article about that High Street I cannot complain, because by being there in that place I’ve waived certain parts of my privacy rights, however if the article implied I was a single, out of work child molester I would have grounds to sue because I’m not and I’d object to having my image portrayed in that way – defamation.
So in summary of the above – If you want to sell an photograph with the intention being that it will be used for commercial purposes you don’t legally require a model release but in practice you’re going to need one so you may as well get used to the fact.
I mentioned there’s no law that covers model releases but it’s a legal document, it’s a contract and a contract is a legal document between two (or more) parties, without laboring on the point I’m sure I don’t need to tell you that there’s are thousands of types of contract and each country has different legal requirements to define what makes a contract, as such I cannot give a definitive answer to what must be included on your model release.
I license (note I didn’t say sell) thousands of images each week through various online agencies, every single one of them accepts the Getty model release that I use and from a legal standpoint it covers most countries legal requirements that I know of, my suggestion would be that you either use that one or if you intend to write your own, you base it around the Getty one.
My advice to anyone who takes photos of people would be:
Get a release whenever you can, and to make sure that release covers the legal aspects required for the country in which the photo was taken (note an English photographer who takes a photo of someone whilst in France would be bound by their laws)
Remember anything an agency tells you about model releases (or property) is based on their individual policy requirements and is not necessarily based on law. Having said that most agencies give reasonably accurate information in their site terms.
Ensure the agency you send the release to abides by the data protection laws of your country.
Ignore any internet experts that write about the law regarding model release (you should know why now).
If an agency insists on a model release even though you know from what I’ve written that you don’t need one – live with it, their agency their rules.
And one final although slightly off topic tip – if you shoot a commercial job try and avoid using the companies employees as models , if they insist just point out the consequences of what might happen when that person leaves their employment!
Richard Thomas (RTimages) – Commercial photographer.
LINK to the Gettyimages model release
Please DO NOT ask questions directly to Richard via his website, if you have a question please leave a comment and Richard will ‘pop’ in now and then to answer them, thanks.
Disclaimer – Nothing contained in this post constitutes legal advice
Kerry Garrison (LINK) has kindly shared two other links with me that cover model releases (thanks Kerry).
Dan Heller’s Busting Myths About Model Releases (LINK) and…..
Dan Heller’s Model Release Primer (LINK)
Both very in-depth and a good read
I would like to add that Richard Thomas does NOT endorse certain statements made in Dan Heller’s posts.