Moonrise & Aurora

Moonrise & Aurora

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I was in a park yesterday snapping photos. Though focused on landscapes and nature shots, I happened to get a photo of a woman in the park and it turned out to be a nice photo. She was hundreds of feet away and I wasn't prepared with model releases or anything, so I didn't bother running after her. I'd like to post the photo on my SmugMug portfolio. I don't plan on selling the photo or using it in any other manner. Will posting it on an online portfolio get me into any kind of trouble? Am I better off just leaving the photo on my hard drive?

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IANAL. Ask a lawyer etc BUT, based in what I have read about related US law - no, you don't, probably [ :-) ]. Even if the site has ads included you probably don't. That the person was not the major subject makes a significant difference. – Russell McMahon Oct 22 '12 at 16:49
@jkohlhepp - Sorry I may have miss understood. Is the woman in a photo where she is NOT the primary subject? Or did you take a photo with her being the center of attention in between landscape shots? If the former, then generally wont need a release as Russell said. – Itai Oct 22 '12 at 18:18
Basically a duplicate of a couple of very similar questions: photo.stackexchange.com/questions/17189/… photo.stackexchange.com/questions/5031/… – Clara Onager Oct 23 '12 at 10:46
@Itai The woman is definitely identifiable but she takes up only a small portion of the frame. She is standing in front of a large waterfall which takes up most of the frame. – RationalGeek Oct 23 '12 at 11:55

3 Answers

up vote 3 down vote accepted

That us a legal question which you should ask a lawyer to be certain. Given that SumgMug is in the middle, you may want to check with their terms of service too. The particular legalities will depend on where you live and wheere the photos are hosted.

As a general rule, if you have to ask then you should get one. On the other hand, the likelihood that you get into trouble is proportional to your perceived ability to pay.

You may simply be asked to take down the photo and I do not think much damages claimed if there was no commercial gain of you or SmugMug. You definitely need a release if your page has ads or offers prints, regardless if it is you or your provider doing the printing.

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I am aware that I should ask a lawyer if I wanted to be certain. However, since I'm not using the pic for anything professional (I'm just a hobbyist photographer), I'm not going to pay legal fees. My reading of various interpretations of US law by photographers suggest that I don't need a model release for online, non-commercial display of someone photographed in a public park. But if there is some doubt, then I'll leave the photo out because I don't want any trouble. +1 for looking at SmugMug's ToS that is a good point. – RationalGeek Oct 22 '12 at 15:45
I'm not sure if ads on the page really imply a required release. For example, a newspaper can print photos without releases, but can also have ads in their paper/webpage. I'm not so sure about prints, but generally its related to whether the photo is being used commercially, and I don't think a hobbyist's portfolio counts as commercial use... – drfrogsplat Oct 23 '12 at 3:21
AFAIK and IANAL: A model release is not a requirement but protection. Stock companies require people to provide a release because they want to be protected. In general though, you can be sued for any use of your images and even if there is a model release. The presence of ads may be taken as commercial, it only depends on the complaining party. – Itai Oct 23 '12 at 13:07
up vote 1 down vote

In most of the world it's perfectly legal to use pictures you took of people in a public place with some simple limitations.

Unfortunately those limitations are completely different between countries and even between states in the US.

Generally, if the picture isn't used in an offensive way (or a way that can seem even remotely offensive to someone else) and doesn't imply the person in the photo endorses anything and the picture isn't used to make money you are OK - however - I'm not a lawyer, I don't know the law wherever you are (I don't even know where you are), this is not legal advice and even if it was you shouldn't take legal advice from strangers on the internet.

So, use your common sense, think how would you feel if you accidentally found a picture of you in the same situation and be respectful to other people.

Update: unless you have permission you can always get sued, see Clara Onager comment below

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Even if the use wasn't offensive there's still room for other issues. If the subject was AWOL from work and their boss saw the photo and the person lost their job then they could attempt to sue the photographer. Stranger things have happened where lawyers are involved. – Clara Onager Oct 23 '12 at 10:40
@ClaraOnager - you are right, I will edit the answer – Nir Oct 23 '12 at 13:08
up vote 0 down vote

If she is identifiable in the photo, then yes, you need her permission (model release). If she is not identifiable and this is in public space, then no, you don't need one.

If she is identifiable (as in "can her own mom recognize her in the photo") or not will always be a subjective evaluation. If this cannot be determined without any doubt, then a model release will give you a safe card.

Will you get in trouble if you don't use one, and she is recognizable? That will depend on the woman. You see where this is going.

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This is not a factually correct answer, it may be a reasonable answer in certain parts of the world thus you should provide some context. – Clara Onager Oct 23 '12 at 10:38

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