PHOTO RELEASES, Your Rights and Theirs

by Paul W. Faust

Many photographers know what a photo release is, many don’t, and many don’t even care, but do you really need a release for any of the shots you are taking, and should you care? 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 want to stay out of court.

Let’s start out with what a release covers. There are two types of photo releases. The “Model” release and the “Property” release. A model release covers people, and only people, whoever they are. Young, old, and in between, and they don’t have to be a paid model like you would see in an advertisement. Some people may use it for animal models, but when you come down to it, the animals are still always property. A property release should be used to cover animals, and just about everything 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, 1= the image is only used for your own personal enjoyment, (That does not mean that you would enjoy seeing it in print either) 2= the image is used for educational purposes, such as for a classroom demonstration, and 3= it is used for news worthy reasons, such as recording an accident or public a demonstration. As long as you are not on private property when shooting, you do not even need to ask permission to take a picture. It would be the considerate thing to do if it is their property that you are shooting on, and you are then still subject to trespassing laws.

Now for the part that you really need to know about when you do need a release if you don’t 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 just hung on the wall of your office to influence a client.

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 reasons, such as a promotional piece. Bottom line at the majority of publishers and ALL 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. The 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 persons image when they are recognizable, but what about property? Again, recognizable is the key word. If you are shooting the front of a business because you like a sign there, and anyone seeing that picture could tell what business name that was, then it is recognizable and you need a release. If you are shooting it from two blocks away and the front of that same 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 judgment that a court would take is, if the average person on the street could tell one store from another, then it is recognizable. Barring any giant signs on the front that would say who owned it, then there is no need for a release. This does not discount any recognizable property that is in the foreground though. The same goes for a home, barn, garden, or even a one of a kind outhouse, you need a release. You have to use your head with certain things here.

Are releases worth trying for? Well consider this. Let’s say on your last trip around the southwest you shot an outstanding image of a small child standing on a path and looking up at the first giant redwood tree she has ever seen. An image that any ad 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 $2,000 to $20,000, but without a release you can only expect from $50 to maybe $250 as a story illustration, if you are lucky. Beginning to look a lot more appealing isn't it!

The illustration here shows another area that a release is needed. Photographing another person’s artwork, be it a painting, sculpture, or whatever, and being it whole, or just a small part, 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, CA, 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 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 law suit than if you just photograph a person that doesn't want their picture taken. The artwork belongs to the artist, right down to the last little square ¼ inch in the corner, and without their permission in the form of a release, it is basically the same as theft to take it and use it 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 applies. You are taking it without the owners 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 TV or VCR.

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 pretense. 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 entered, or be the sole owner to its rights. Probably the most damage such practices can cause 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 rejection bin. If they feel that they cannot trust you, they will not even consider 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 that of their property. That they have received some sort of compensation, which could be as little as a print of it. 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 both. Try the long one first and if the other person seems like they won’t go for that one, pull out the short release. It is better to get whatever you can than not to get any at all.

Standard model releases can be found in most camera stores. If you have a typewriter, you can make up your own and have them either photo copied, or sent to a printer for a large supply made up into pads. There are many right here online that you can just copy and print out. Just be sure that the sites allows you to do that, not that they would ever find out anyway. Most could care less, and when they do they usually say so. When it comes to releases, your motto of the day should be, ”Be safe, or be sorry!”

Next month I will cover what you need to know about copyrights. Till then, GOOD SHOOTING!

About the Author

Paul W. Faust is a self-taught Photographer, Writer, Digital Imaging, Photo Restoration, and Photo Stock Service professional.

His work has been published in American Photographer, Camera 35, Camera and Darkroom, Popular Photography, Photographic, Photographers Forum, www.apogeephoto.com and here at TPN. Past assignments have included many cover images, full-page spreads, and also shooting stills for both Hollywood movie sets, and for star hopefuls including Bo Derick, Heather Locklear, and Pricilla Barns, among others. Paul's images have also been used by; NikonNet, Bogen Photo Imaging, East Tennessee Film Commission, and The Knoxville Zoo, to name a few, including their web sites.

Paul can be reached at pwf_iol@yahoo.com

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