When should you obtain a photography model release? When can you take someone’s photo in public? What can you use those photos for? These questions surrounding model releases and the right of publicity often plague photographers and can stifle the connection between creativity and commerce. While there is no hardline answer to any one of them—the grey area here is vast—there are a few guidelines you can follow to protect yourself and make sure your photographs are sellable.
This is the third and final installment in our series covering commercial photo rights. The other two, one on copyright and the other on trademark, are also available on our blog. As in the previous two posts surrounding these legal quandaries, we are by no means attempting to provide legal advice (you should always consult a lawyer). With this series, our goal is to provide you with a better understanding of the different intellectual property and personal rights laws so you can make educated decisions and hopefully keep yourself out of legal hot water. Everything you read here is based on US law, which is a good benchmark to use because US law is well-developed, and because the US is one of the world’s more litigious countries. Even if you don’t operate in the US, this information should be useful as an initial guide.
Before we jump into the thick of it, I’d like to establish a few things first. Within the context of this post, I’m largely talking about the laws that govern the commercial use (i.e. advertising and business-related) of photographs. When it comes to getting releases for photographs that are “expressive” (i.e. fine art) or for editorial use, then the rules for gaining a model release and the right of publicity are slightly different. Now that we’re on the same page, let’s dive in.
Right of Publicity
The right of publicity came out of the laws that govern the right to privacy. Most basically, the right of publicity is often talked about in conjunction with celebrities and the protection of their image (in some states, it extends well past their death, but it varies), but it extends to common citizens as well. The right of publicity is often lumped in with copyright law, but it’s actually more similar to trademark. Regardless, there are some things to keep in mind.
The law protects people in conjunction with advertisements or, for example, on product packaging. To put it in laymen’s terms, if you take a photo of someone and their image is going to be used to sell something—be it a product, non-profit mission, religious message, etc.—you need their permission, which usually comes in the form of a model release. The same can go for private property as well, but don’t get your laws mixed up, these are usually due to either copyright or trademark law (a building doesn’t have a right of publicity).
When to Get a Model Release?
Just for a second, put yourself on the other side of the camera. You let a friend take your portrait and verbally tell them, “yeah, cool, use it for whatever.” A year later, you see your face on an ad at the bus stop for medication to treat hemorrhoids (yes, I’m loosely stealing from this scene from Friends). You’re probably not going to be very happy, and might even want to take your friend to court.
Now switch back to your role as a photographer. If you had taken that photo and obtained a proper model release, then you’d be in the clear to sell that image commercially. In the US, generally speaking, if the model is 18 years of age or older, they can consent on their own to the release.
Broadly explained, if a person’s likeness—their face or recognizable characteristics like original tattoos, etc.—is discernable and the photograph will be used for business or advertising purposes, then, yes a model release is needed. This gets a little complicated when dealing with crowds of random people, or when someone is not the clear focus of the shot. The most common error we see photographers make in evaluating if a person is identifiable, is with partially obscured faces or failing to account for location and context, which can give away a model’s identity even if their face is obscured. This is a big one especially where you might have taken a shot, for example, of a famous musician from behind or as a silhouette, where many people will be able to identify her even if you couldn’t.
When clients are looking to license an image, the fewer barriers for them to do so the more likely they will. Having a model release on hand removes that barrier. Long story short, always get the model release straight away. It’ll save you time in the long run and inspire confidence, in addition to protecting yourself and the client.
Need a sample model release? You can download one from us here.
Usually you don’t need a release when the image is used in an editorial context, but in this case, there must be a relevant story to accompany the photograph. For example, if you use an image of Kim Kardashian on the cover of your magazine, then there must be an article that relates to the image. If not, Kim could have a case on her hands because you’re just using her image to sell your magazine and nothing else. If you want more examples of acceptable editorial use of photos without model releases, take a look at the resources at the bottom of this post.
Here are a few examples to illustrate if and why you would need a model release if the intended use is commercial. Ultimately a lawyer is the best person to ask, but generally, these guidelines are followed by commercial clients.
A client looking to license the above image for commercial purposes would need a release for the musician (the focus of the shot) and likely want a release for each identifiable person, even if their face is slightly obscured.
There aren’t any identifiable people in the above image so a model release would not be needed.
Both models in the image above would require proper releases to use their likeness commercially. Just because their faces are partially obscured doesn’t mean you don’t need a release.
The image of the musician above is tricky. Even though you can’t make out their face, if you didn’t obtain a release, the musician might have a case in court if they can prove their hair, guitar, etc. are distinguishable characteristics or recognizable by the context of the shot.
It’s always good to get your information from multiple sources. Because we mostly cover issues pertaining to commercial photography, here are a few resources to bone up on your knowledge.
- Good resource on right of publicity extended after death.
- More on right of publicity when it comes to celebrities.
- ASMP’s resource is good for asking yourself questions.
- PDN‘s Q&A with professionals in the field.