Los-Angeles-Shooter Loc: Los Angeles

Got some messages encouraging me to post info on model releases, so here goes. Bear in mind that I'm talking about the USA law, and that the laws underlying the need for model releases (typically "right of publicity" laws) are state laws and vary from state to state.

IN A NUTSHELL: In most states a person has the right to control the commercial exploitation of his/her (herein "her") own image. This right is called "right of publicity" (herein "ROP") It can also extend to voice and other aspects. If she cannot be identified from the image, such as a tight shot of a backside with no tattoo, there is no ROP.

ROP laws exist at the state level. Some states have them. Some don't. The laws and penalties vary from state to state. Some states recognize spoken model releases (eg., CA). Others require they be in writing (eg. NY).

HOW DOES ROP LIMIT A PHOTOGRAPHER'S ABILITY TO MAKE USE OF AN IMAGE? In a state with a ROP law, the photographer can't use the image for commercial purposes without the model's permission. Commercial purposes is usually defined broadly, and in many states would arguably include online portfolios.

WHAT ARE THE PENALTIES FOR VIOLATING ROP LAWS? Typically around $750-$1,500 per violating image or incident, depending on the state and certain other factors. And that's even if the photographer didn't make money or intend to make money directly from the image. In the case of the image making a lot of money, the model can also sue for profits that resulted from the use of the image.

SO WHAT'S A MODEL RELEASE? The model release is a form which gives the photographer permission to do the usual things with the image, such as licensing it, selling it, using it to advertise himself or other products or services. The model is releasing her rights, so the photographer has permission to do things which otherwise would violate the model's ROP. Some states recognize "oral releases." (Get your mind out of the gutter, eh!) But even in those states, it is wise to get a written release to avoid a "he said/she said" contest.

A STUPID ISSUE, BUT HERE'S THE ANSWER. Some photographers argue over whether a model release is a contract or not. The answer is that depending on the release and the arrangement with the model, it is sometimes a contract and sometimes not.

GENERAL COMMENTS ON RELEASES: A release should be thorough and cover all possible uses in all possible media and avenues, existing and yet to be invented, everywhere, forever. It should be (duh!) in writing, and signed by the model. It should include a release of any model's claims to copyright.

WHAT ABOUT RIGHT OF PRIVACY? Right of publicity developed out of common law rights of privacy. A use without permission of a model's image may violate her right of privacy as well as ROP. This is especially so if nudity is involved. Right of privacy laws, like ROP, vary from state to state.

WHAT'S THE RELATIONSHIP BETWEEN COPYRIGHT AND THE MODEL'S RIGHTS? In a nutshell, when the photo is made, there are two sets of rights. The photographer normally owns the copyright; the model has her own ROP. For the photographer to make full use of the images he should get a model release. If the model wants to make use of the images she should get a copyright license from the photographer.

WHERE TO GET MORE INFO ON YOUR OWN STATES RIGHT OF PUBLICITY AND RIGHT OF PRIVACY LAWS? Use a search engine to look for "right of publicity law" in your own state. Same with right of privacy law. For those in California, incidentally, the ROP law is found at California Civil Code section 3344.

Please bear in mind that the above is a simplification of some of the important points about this area of law. Also, I am not a lawyer, but have worked as a paralegal and legal secretary in cases involving right of publicity law. I hope the above is helpful.

THE MOST IMPORTANT THING TO REMEMBER: If you might ever need a release, get it at the time of shooting.

SharpShooter Loc: NorCal

LAS, thanks for that very concise explanation and since it comes up here very frequently.
I have studied the use of releases in several of my classes.
I have always said that by the time a photographer gets to the point of actually needing a release, they will know when and how to use one. Most never will need need one.
Also any company using that type of photography, will know not to touch a photo not properly released.

A few clarifications, correct me where I am wrong.
A "tight backside" I understand, but also can be identifying clothing. Such as an actress who has developed a unique trademark look. This could be an ROP without seeing and identifiable face or tattoos.

Many here think that "commercial purposes" is simply making money by selling their photos. Commercial use is more as in advertising a product. Such as selling Nike shoes or Rolex watches.

I had not heard that it could include on-line portfolios without directly advertising a product.

Also the use of trademarked products need releases from the manufacturers.

I still believe that most will never have to worry about it. When they need a release, it will be hard to be accidental.

Release your creativity. SS

charles brown Loc: Tennesse

WOW - this is a great example of kiss at work. Fantastic, well done, and thank you

Victor S Loc: SouthCoast MA

You guys gotta check out "Easy Photo Release" for your phone!! Takes a photo, signs the form, sends it to your email. Better than carrying all those forms. Get it on Google Play

Los-Angeles-Shooter Loc: Los Angeles

[quote=SharpShooter]....

A few clarifications, correct me where I am wrong.
A "tight backside" I understand, but also can be identifying clothing. Such as an actress who has developed a unique trademark look. This could be an ROP without seeing and identifiable face or tattoos.

I REPLY: I can't say for sure as to "identifiable clothing." Not aware of any cases where this exact issue came up.

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Many here think that "commercial purposes" is simply making money by selling their photos. Commercial use is more as in advertising a product. Such as selling Nike shoes or Rolex watches.

I RESPOND: The uses that require a release vary from state to state and according to precedent in particular states. But almost for sure, using a person's image to sell a product requires a release, in states with a Right of Publicity law.

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I had not heard that it could include on-line portfolios without directly advertising a product.

I RESPOND: Advertising a SERVICE is normally included among the uses requiring a release. IMO use in online portfolios requires a release because the image is being used to advertise the quality of the photographer's work and services. This is my opinion, and I can't cite any specific cases on point. However, I feel strongly on this point, especially where the photographer is making money from his services.

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Also the use of trademarked products need releases from the manufacturers.

I RESPOND: That's a whole 'nother ball of wax. In general it's wise to avoid showing trademarks in images that might be used commercially, such as for stock. In fact, some stock agencies forbid recognizable logos in images submitted to them.

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I FURTHER COMMENT:
For a much better understanding of ROP law, read California's ROP statute: California Civil Code section 3344 and see how broadly it defines the purposes for which a release is needed.

One of the most amusing cases in ROP law involved a female skydiver who parachuted nude. The image at issue was taken of her backside, during freefall some miles above the ground. The woman claimed she was identifiable even though no face or distinctive mark or tattoo was evident. Tragically, I do not know the outcome of the case. I myself have parachuted, though no one has asked me to do so nude...

MagicMark

Thanks, LAShooter!

SharpShooter Loc: NorCal

[quote=Los-Angeles-Shooter]

LAS, thanks for the great responses.
I see what your saying about the web, portfolios.

I think most of the stock agencies will not take anything with a product or recognizable labels, or so I've been told by those that do stock.

If you had to skydive nude, I would think summer would be best. And if you are a man, probably better to go down facing up. A harmonic resonance could be a killer!!
Thanks LAS. SS

JaiGieEse Loc: Foxworth, MS

Those who mention stock agencies are correct. For instance, iStockphoto will immediately reject a submission if the image contains even the smallest recognizable bit of a logo. I had an image turned away once because in the very lower right portion of the image lay a soft drink can with a barely visible logo I'd overlooked. Bit of careful cloning got the image in. They'll also dump an image that does not come with an attached model release, and in many cases, with an attached property release. That last can be a very sticky ball of wax. Many properties (such as the London Eye) strictly do NOT allow commercial use of images of the inconic ride. NASCAR absolutely does not permit commercial uses of images of racetracks, cars, drivers, NASCAR sponsor logos, really anything NASCAR. You shoot at a race, you need a huge stack of releases if you're shooting for anything other than personal use.

ole sarg Loc: south florida

Very interesting if you are shooting in CA.

A simple model release form that can be found on the net will suffice. Additionally, often a work for hire agreement serves the same purpose.

Marty Cordova

I have a question. First of all let me acknowledge that you are not an attorney so I'm not considering what you write as legal advise. Now that that is out of the way my question is:

If you photograph someone in Texas, you get the proper releases and acknowledgements, then you post your photos onto a commercial website and someone in California purchases from that site do you need California releases too?

Your insight into this is appreciated.

BuckeyeBilly Loc: St. Petersburg, FL

Thanks for the info, LAShooter. Here is a link about ROP in Florida. There is also a link that takes you to other states and their ROP laws.

http://www.dmlp.org/legal-guide/florida-right-publicity-law

dglphoto Loc: Lynnwood, WA

I just finished reading the book "Photographer's Survival Manual" by Edward Greenberg and Jack Reznicki. I found it to be an excellent discussion of the legal aspects of the photography business. They discuss copyrights, model and property releases, how to craft and word invoices to protect your business and pricing.
Greenberg is a lawyer and Reznicki is a photographer. They discuss many of the points brought out in this thread.
Well worth reading. Its @2010 by Lark Photography Books.

Los-Angeles-Shooter Loc: Los Angeles

Here's a link to California's right of publicity law. Most states with ROP laws based them on California's, New York's, or both. ROP law is more developed in those two states than in most others because of the large number of celebrities in those states.

http://codes.lp.findlaw.com/cacode/CIV/5/d4/1/2/2/3/s3344

When you read the law (it's easy reading, don't worry) please note how BROADLY it defines the model's rights that are covered by the law. If you read the law I think you'll agree with me that it's best (certainly under CA law) to have a release for uses such as online portfolios.

Los-Angeles-Shooter Loc: Los Angeles

I asked an attorney who confirmed my opinion which is that the original model release should be adequate. He also concurred with me that in general you want the model release to be as broad as possible to avoid issues later on. He also commented that no one would get any shooting done if they tried to have 50 or so model releases, or tailor one release to cover every peculiarity of individual state law.

The above is opinion and informal comment, not a legal conclusion or individual legal advice.

St3v3M Loc: 35,000 feet

Thank you