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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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  • \$\begingroup\$ 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. \$\endgroup\$
    – Russell McMahon
    Oct 22, 2012 at 16:49
  • \$\begingroup\$ @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. \$\endgroup\$
    – Itai
    Oct 22, 2012 at 18:18
  • \$\begingroup\$ Basically a duplicate of a couple of very similar questions: photo.stackexchange.com/questions/17189/… photo.stackexchange.com/questions/5031/… \$\endgroup\$
    – user9817
    Oct 23, 2012 at 10:46
  • \$\begingroup\$ @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. \$\endgroup\$
    – RationalGeek
    Oct 23, 2012 at 11:55
  • \$\begingroup\$ See also photo.stackexchange.com/questions/29181/… \$\endgroup\$
    – user9817
    Nov 14, 2012 at 9:11

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This is a legal question which you should ask a lawyer to be certain. Given that SmugMug 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 where 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 would be claimed if there was no commercial gain for 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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  • \$\begingroup\$ 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. \$\endgroup\$
    – RationalGeek
    Oct 22, 2012 at 15:45
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    \$\begingroup\$ 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... \$\endgroup\$
    – drfrogsplat
    Oct 23, 2012 at 3:21
  • \$\begingroup\$ 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. \$\endgroup\$
    – Itai
    Oct 23, 2012 at 13:07
  • \$\begingroup\$ Presence of ads in a publication does not mean every image contained in the publication are considered commercial usage! Images used in the publication in an editorial manner are still governed by the requirements of editorial usage, not of commercial usage. \$\endgroup\$
    – Michael C
    Feb 11, 2016 at 19:39
  • \$\begingroup\$ Even for commercial photographers, portfolio images are generally considered non-commercial usage as long as the images do not contain explicit solicitations for hire in the caption (or superimposed upon the image itself). In such a case, a portfolio image would not be offered for sale as a print, even if other images hosted on the same site would be. \$\endgroup\$
    – Michael C
    Feb 11, 2016 at 19:39
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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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  • \$\begingroup\$ 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. \$\endgroup\$
    – user9817
    Oct 23, 2012 at 10:40
  • \$\begingroup\$ @ClaraOnager - you are right, I will edit the answer \$\endgroup\$
    – Nir
    Oct 23, 2012 at 13:08
  • \$\begingroup\$ Even if you do have permission you can always be sued. It has happened, for example, when models found usage of properly released photos of them promoting a product they personally found highly offensive. Keep in mind that just because someone can sue you doesn't mean they will prevail in the case. \$\endgroup\$
    – Michael C
    Feb 11, 2016 at 19:47
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One purpose of a model release is to warrant to a commercial agency that the subject of the photo was paid and consents to the photo being used commercially without limitation (or as specified in the wording of the document). If you are not selling the photo to an agency that requires a model release, then you don't need a model release, as it is not a legal requirement to have one in order just to publish a photo. If there is the possibility that at some point in the future you may sell the photo commercially, it is good to have a model release from the start (it's not practical to get the model to sign a release years later).

However, even if not strictly required, a model release can still have a benefit: it is a signed document by the subject in the photo indicating that they consent to a certain usage of the photo. Such a document may assist in your defence if the subject ever tries to claim that various other rights such as moral rights have been violated by the way in which you publish your photo. It is not an automatic win, it just may assist you. So while it may not be a legal requirement to have it, if your subject is willing, it can be a nice thing to have.

Obviously, people publish photos all the time that were taken with no permission and where the photographer got no model release. Photojournalism and street photography are two obvious examples, but other examples are, just "holiday snaps" - more and more people are publishing their personal photos in public spheres, and there is no need for model releases the majority of the time.

You would need to be concerned primarily about what other rights of your subjects you may be violating - was the photo taken in a private space, does the way you have published it make it seem like the person is endorsing something or doing something that may tarnish their reputation? Even with a model release, these can become problems for you, but having one might put you in a better position than not having one.

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It varies from state to state. From what you say, the woman, hundreds of feet away, is probably not recognizable, and if not recognizable, no release is necessary.

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This doesn't have a certain answer (in the U.S.)—there's never been enough money involved to get far enough in court to get actual precedent set. Someone always blinks.

The closest we've gotten is the diCorcia case. https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia but even that had the appeal decided on statute of limitations grounds, not the underlying facts, so no precedent.

Although the trial court's opinion (in diCorcia) that the 1st Amendment can trump right-of-publicity laws for artistic expression is an idea that should loom large in any other presentation of this issue.

No precedent means no chance of a cheap summary judgment/dismissal. If you piss off someone with the money to sustain a spite lawsuit winning is nearly as expensive as losing. Tiny risk, potentially huge consequences.

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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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    \$\begingroup\$ 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. \$\endgroup\$
    – user9817
    Oct 23, 2012 at 10:38

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