A question that is inevitably asked when I’m speaking to photographers, whether they are inexperienced or long time professionals, is, “When do my photos need a model release?” My answer is always the same, “It’s not the photo that determines whether or not a release is required but how the image is used.” One of the topics I cover in Chapter 12-“Legalese” in my book, Microstock Money Shots, concerns model releases.
Here are the key facts:
- Each distributor has rules about accepting images with people. These include whether a person is recognizable. The standard for recognizable goes from rejecting photos where no one but the individual themselves could know who it was to some companies that won’t accept an image of a hand holding a glass without a release. I had an image of a pair of feet in non-descript black shoes rejected by a rights managed stock agency’s legal department because the ankle attached to the foot was wearing an ankle bracelet. OK, so the jewelry may have been recognizable. We photoshopped the ankle. Still a no-go as the policy of that company was that even isolated body parts had to have releases.
- A photo that can seems that it can be used with impunity within the context of an editorial piece can turn around and bite the photographer. Example: you take a photo of a recognizable person sitting on a bench as they watch their child at a public playground. The photo is downloaded online for editorial use with either a micro or a macro license. The end user is a parenting magazine. All sounds on the up and up until the article comes out and is about predators that hang out around playgrounds. Even if the photographer had obtained a model release, it is possible that the model could sue if the photo didn’t carry a notice such as ‘posed by professional model”. I leave it to the lawyers and the courts to come down with definitive opinions about whether such a suit has validity and that will have something to do with the wording in the model release. But I would think htat the outcome will generally be in the photographer/agency’s favor because of the EULA (end user licensing agreement) that prohibits using photos that imply that the subject is engaged in something illegal.
- Editorial vs Promotional. Both Dreamstime and Shutterstock accept images of non-released people for editorial use only. (Dreamstime carries it a bit far into property release land by requiring that all city skylines that show business signage go into the editorial only slot. Most companies agree that a skyline with bank logos and other business ID’s on many buildings are not problematic and they accept them for use in popular travel ads and brochures.)
- What is the best release? That would be the one that you can get signed but, again, I say that the lawyers can best weight in. I recommend the Getty release as they have the most to lose. Thus I’m betting that they have all the bases covered. They have made all their releases in multiple languages freely available for download to all.
- Do you have to compensate the model? I recommend you do. Read the ASMP Strictly Business tutorial on the subject for the low-down on this and all things dealing with both model and property releases. Also read a current ASMP blog post: Q & A about releases. And another entitled: “I don’t need a release because I would win in court” (Consistently ASMP’s Strictly Business Blog posts comprise one of the best blogs for photographers, if not THE best).
- What are your other responsibilities to the model? You need to make it clear that you will have little control over the end use of the photo. If an amateur model sees their photo on a big billboard, they might come dialing for dollars on your line even though you don’t owe them anything. You can give them a copy of a site’s EULA to help with fears.
As promised: Here are the photo credits for Chapter 12 of Microstock Money Shots:
Aleskey Oleynikov/Shutterstock-Young couple on stone wall at sunset. Chapter Opener
Vling/Shutterstock-Woman in hammock on tropical beach.
Pete Saloutos-Rowing at sunset.
Wojciech Gajda/Dreamstime-Girl in yellow bathing cap at side of pool