Alley in Pisa, Italy

by Lars Kotthoff

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Revised Question:

After a bit of a think I realised that this question can also be asked the other way round and much more simply: In what situation(s) have you required a model release?

Original Question:

Questions about model releases come up fairly often so I'd like to make a community Wiki about it. When answering please make sure to specify that you are not a lawyer and the legal locale (i.e. Country, and State if necessary).

Which of the following scenarios legally requires a model release and what terms does the release need to contain?

  • Public A: Aphotographer takes a photo in public place such as a park or street. The photo includes identifiable people, and the photographer wants to use the photo in their own portfolio or website

  • Public B: Same scenario as A but end use is a non commercial publication or website

  • Public C: Same scenario as A but end use is a third party commercial publication, website, or stock library

  • Public D (trick question): A photographer takes a photo in a shopping mall, theatre, stadium, museum, railway station, event or other privately-owned publicly-accessible location.

  • Model E: A photographer has a photoshoot with a model and gives the model prints or a CD of images and wants to use the photo in their own portfolio or website

  • Model F: Same scenario as E but end use is a third party commercial website

  • Model G: Same scenario as E but end use is an 'erotic' site

  • Model H: A photographer does a photoshoot with a model and pays for their time with money at an agreed rate and wants unlimited use of the photo commercially

  • Model I: A photographer takes some photos of a friend at the friends request and wants to use the photos in the photographers portfolio/website

  • Model J: A photographer takes photos of their own children and wants to use the photos in their portfolio/website

  • Model K: As scenario J but for commercial use

  • Event L: A photographer is paid to take photos of everyone at a wedding or other event on private land and wants to use the photos on their portfolio/website

  • Event M: As scenario L but end use is a commercial publication or website

  • Event N: A photographer takes photos of a fireworks display in a public park and wants to use the photos commercially

I think I've covered most of the situations photographers will find themselves in but I'll add in any suggestions. Note again that this is intended for community wiki and that locale is important in answers.

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Do different countries have different laws in this respect? –  Rene Oct 23 '12 at 12:07
    
I'd say this is too broad a question and would simply give too large an answer to sift through. I'd prefer one question per group of related situations and get answers for different jurisdictions. –  Itai Oct 23 '12 at 13:10
    
Fair enough but it seems that at the moment we're regularly getting those 'do I need a model release in situation X' questions, all of which end up getting basically the same answers. –  Clara Onager Nov 2 '12 at 13:20
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@Rene Yes, very different laws in different countries –  Clara Onager Nov 14 '12 at 9:06
    
The term "model" should and must also include any property or other possessions that are recognizable and/or identifiable with a person. (under US law) –  Stan Sep 11 '13 at 19:44
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3 Answers 3

A model release is required when you sell photos for commercial use because buyers won't buy the photos without it - that's it, as far as I know there is no law in any country that require a signed "model release" document.

Some times you need permission from the model, parent (in case of kids) or owner (in case of property) but that permission doesn't have to be in the form of a "model release"/"property release" document.

A model release is just a contract that defined permission the model gave the photographer - and like all contracts a model release is very useful in exactly defining what everyone is allowed to do with the photos to avoid misunderstandings and surprises later on, it's also very useful if you get sued because it shows the model agreed to be photographed and gave you permission to use the photos.

Also like all contracts it doesn't completely guaranty there will be no problems down the road and very often is used just to cover one's, hm, behind.

The law regarding when and where you need explicit permission differ greatly depending on the region and even the subject - the only valid answer to question about this is "ask a local lawyer".

By the way, in some places having a model release is not enough and there are other conditions you have to satisfy before you are allowed to use the photos.

Note: publishing erotic pictures of someone else is more complicated and there are usually very specific laws about what documentation you need (for example: proof of age), those law are different in each state/country and they change every time a politician tries to gain political power by saying something is connected to pedophilia.

I'm not a lawyer, this is not legal advice, don't trust legal advice from random strangers on the internet, etc.

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Rather than your scenarios, think of these factors (and this is US-specific, guidelines may vary elsewhere):

  • Are you going to be selling for editorial (magazine, newspaper, blogs, etc.) you can publish anything "newsworthy"?

  • Do you plan to market for commercial usage where a product or service is being advertised?

If you are going with editorial, then a model release is nice, but seldom required. If you plan to do anything commercial, then it probably is required. People have a reasonable right to privacy and while paparazzi ambush photography works in the news sense, not so much if you're advertising your buyer's product with it. There was a kind of bellweather case against Zephyr images where a photographer was selling outtakes from his portrait sessions to Zephyr for stock. That was a common practice. But one of his clients was not amused to see her image pop up in an advertisement for a particular hygiene product. The photographer and Zephyr lost the case and made model releases absolutes for stock.

The second, finer point, is "can you really recognize the person in the image." It turns out that profiles, silhouettes, and anything identifiable like a tattoo is considered as requiring a model release. The more difficult question of images of people from behind is normally answered when you answer the question "what is the primary emphasis of the image?" If the person is completely incidental and totally unrecognizable, then you might be ok. But if it's an image of an attractive couple strolling hand in hand on the beach away from the camera, then the answer would probably be to get the release as they are the primary emphasis of the image.

I'm not an attorney, but the main takeaway I have on all of this stuff is your head will explode with scenarios if you try to imagine everything that could happen. When in doubt, try to get a release. If you can't and still want to use the image, be clear that the image is unreleased.

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From my own experience, which is all UK based over the last ten years, and bearing in mind, for the Americans, that I am not a lawyer, especially not one versed in American law:

No problem selling a picture of a famous 'metal' star as an authorised photographer at a fetish club to a newspaper with nothing more than a nod of recognition from said star that I would be taking a photo.

I collected model releases 'just in case' when I was taking art nude pictures of models (in return for prints) for eventual publication in a coffee table book.

No problems with taking pictures of people at night clubs for publication in a website and getting verbal permission only.

No problems taking photos of famous London landmarks for use in commercial publications.

The only problem I ever had was being asked to leave a shopping mall for taking photographs inside.

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You should be careful taking photos of landmarks in London. While most public places are fair game, commercial photos of Trafalgar Square and Parliament Square require a release from the borough of Westminster, and it ain't cheap. –  ElendilTheTall Nov 2 '12 at 13:29
    
Do you have a reference for that? All I can find is this: westminster.gov.uk/events-portal/faq/filming –  Clara Onager Nov 5 '12 at 11:04
    
    
I think you're misinterpreting a bit there, there's no model release required, it's a fee for filming on Parliament Square itself, and at that only on the 'grassy' area itself as that is private land. There's no mention as far as I can see of a model release for taking commercial photos of anything that can be seen from anywhere on the public pavement. –  Clara Onager Nov 6 '12 at 9:11
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