My client would like an exclusive web-usage license for the commissioned pictures. This led me to feel a bit confused as most model-releases give the photographer the rights to:

  • Take the pictures.
  • Use them in any possible media (which goes against my client's desires)

Further reading on the ASMP website gave me this useful information:

You can expect to be asked to produce them whenever you license an image, and you will need them if you ever have to defend yourself in court.

Thus to my understanding, I need all possible rights in order to even commence the shoot.

So would this interpretation of these documents be correct?

-Permission-> Creation->Licensing->Exclusivity

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    I think you need a lawyer, not a random collection of interwebz photographers. – Tetsujin Mar 11 '18 at 11:39
  • Just consulted a friend who studies law and she confirmed that this seemed right to her. – Chai Mar 11 '18 at 12:39
  • for the commissioned pictures — What commissioned pictures are you talking about? This question is a bit vague about details. – scottbb Mar 11 '18 at 12:48
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    Regarding your confirmation from your law friend, that's a possible answer for this question. Would you mind making it an answer, flushed out with just a bit more detail from your conversation with her? Thanks. =) – scottbb Mar 11 '18 at 12:49
  • @scottbb- commissioned as opposed to stock pictures. I will click new pictures of his animals for him. – Chai Mar 11 '18 at 14:17

You probably would not need a model release at all. A model release is to give to people who appear in the photos. You're taking a picture of animals.

But even if you do need a model release because some people are going to be in some of the pictures, that is entirely independent of the contract between you and the people who are licensing the pictures and paying for the shoot.

The agreement between you and the people paying for exclusivity ensures that you can't take advantage of that model release to use the photos (created under contract) for anything beyond what appears in that agreement, but also binds them to not use them in any way beyond use on the web.

The model release grants you the right to use images of those people in any way, which means that if the people who are licensing the pictures from you want to use them in some non-web way, they will be able to pay you for those rights. Without a broad model release, you would have to go back to the people who appeared in the photos and ask them to sign another release at that point.

So the two are entirely orthogonal; the stricter of the two sets of terms is binding upon you.


Disclaimer: I am not a lawyer. The information below is general in nature and should not be taken as specific legal advice. If you have a specific legal question you should consult an attorney practicing in your jurisdiction that is familiar with the law and case history regarding the issues you wish to address.

The following general information is based on the assumption you are located in the United States or a country with similar intellectual property laws regarding the use and licensing of photographs.

Just because "most" model releases give unlimited rights to the photographer does not mean than all model releases must give the same. Far from it.

All releases do not have to be unconditional.

What your client desires is a conditional agreement, otherwise known as a contract.

In exchange for being allowed to photograph their animals you agree to:

  • Provide a pool of all completed images for their personal use.
  • Grant them exclusive rights to digitally distribute any three images of their choosing from the pool of completed images.
  • Not publicly digitally distribute any of the images yourself (other than what non-public means of digital transmission may be necessary to produce physical prints), even the images not selected by your client as their three images to be digitally distributed by them.
  • Not license the images to any other parties for any other purpose.

In exchange for the considerations above, your client agrees to:

  • Allow you to photograph their animals at a specified time and place.
  • Allow you to sell physical prints of any of the images you provided them in the pool of images for their personal use and from which they were allowed to select three images for exclusive digital distribution rights.

Please note that selling someone a print is not the same as licensing an image. When you sell a print you only sell the physical media. You do not sell intellectual property rights to the contents of the image printed on that media.

Your client is not an aspiring model who is paying you to take their photo, or allowing you to take their photo in exchange for allowing you to use the images however you see fit, or even an established model charging you to allow you to take their photo. In such cases the model generally will allow the photographer some sort of use in exchange for doing the photos or in exchange for payment for modeling services. But they do not have to.

Your client is a customer who wants images of their property and also wants specific use of those images while limiting others' use of those images. There's nothing unusual about this. That is what most commercial clients desire. This isn't Model Mayhem.

It is not uncommon at all for commercial clients to request total exclusive use of the images you produce of their property or products for them. That doesn't necessarily mean you don't still have ownership of the images, it just means you can't license them to anyone else. In this case, the client is not asking for all rights to the images. They are asking for exclusive rights with regard to digital distribution of the images.

You don't need all possible rights to commence a shoot. You only need permission from the owners of what you are shooting.

You only need all possible rights if you wish to license the images to someone other than your client who gave you permission to make images of their stuff in exchange for granting them use of the images you produce that contains their stuff in it.

That's what the quote from the ASMP is referencing: you can't license images to anyone other than the original consenter/licensee if the contract with the original consenter/licensee does not give you permission to use the images in that way but instead assigns at least some type of usage exclusively to the same party that hired you and gave consent to photograph their stuff on the condition that they would have some type of exclusive use of the images. In this case your client wishes to be the sole licensee for digital distribution.

Give it to them or tell them they need to hire someone else who will give them what they want.

But it was 'well there should be a consent as according to civil code it is forbidden to interfere someones property' that statement she provided. Secondly she confirmed the hierarchy: 1) Consent 2) Licensing of the created content.

Nothing in that statement says the images must be taken before an agreement can be negotiated regarding the licensing of the resulting images. It just says consent must precede taking the images. It does not exclude a contractual agreement to license the resulting images in a defined way from also preceding the photo session.

So would this interpretation of these documents be correct?

-Permission-> Creation->Licensing->Exclusivity

No. Not at all. Your client is not going to sign any consent document that does not also insure that they will have their desired use of the images produced as well as limit others' usage in the way they desire. In this case the order is [Permission/Contractual Agreement to subsequently license the resulting images in a specific way] simultaneously executed in the same document before creation of any content.

  • So as you are aware from my other post, the property are animals. So let's understand that I will be granted all rights by their owner. Secondly going with what you say, I am not sure how to weave the license into the permission (release). Lastly, the client will only have commercial usage of the 3 pictures he chooses to use on his webtemplate, the rest will be provided for private use. it it impossible to license images that have not been made/selected yet. – Chai Mar 11 '18 at 16:11
  • You're not even trying to understand. You don't need ALL RIGHTS to shoot the animals if you are also granting an exclusive license to the owner of those animals. You only need all rights if you want to keep the option open in the future to assign rights to the images to parties other than the owner of the animals. Why do you think you must have ALL RIGHTS to take a picture? – Michael C Mar 11 '18 at 16:22
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    ALL RIGHTS has nothing to do with the right to take a photo. ALL RIGHTS has to do with the right to sell a picture to whoever you want for whatever usage they want after the fact. – Michael C Mar 11 '18 at 16:24
  • Unfortunately part of the agreement is that only digital products will be exclusively licensed. However the license is non-exclusive for print based products which is what i earn from. Thus the need for it. – Chai Mar 11 '18 at 16:28
  • It may be impossible to license an image that has not been made/selected yet. But it is not impossible to contractually agree to grant a license for the image of the clients choosing before you produce the image. – Michael C Mar 11 '18 at 16:28

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