If I am photographing a scene, like recently at a river where fly fishermen were everywhere, and a person just walks into my shot, and I get a nice shot of him in the landscape... do I need a model release to post or use the photo in any way?
I actually did get a good shot of a fisherman, and asked him for his email address to send the photo to him (he *loved* it!), and so that I would be able to contact him in the future, in case I did need a model release. But I'm not sure it is necessary?
"In this case, you don't need to worry about a release if you're just going to post it on a forum like NPN. "
Steve, are you sure about this? Could someone claim a violation of right to privacy if they have not signed a release? I am not saying you're incorrect. I am curious, as well.
--P
Posted by David Bostedo on October 27, 2010 at 1:32 PM
Since NPN is open to the public, I'd think a model release would still be necessary technically even for NPN posting. (Caveat : That's my understanding, although I don't deal with this kind of thing myself.)
Posted by Buck Ward on October 27, 2010 at 8:44 PM
Getting a model release is kind of like getting insurance. If you pay cash for a house, you can choose not to get insurance, though that might not be the wisest choice. If you have a mortgage, the bank will require you to get insurance.
If you are not using your images for commercial uses and the person was in a public place where there would be no expectation of privacy, you probably don;t need a model release, but state laws and situations do vary.
If you are uncertain or uncomfortable, then either get the model release, or keep the photo to yourself.
Check with somebody like Carolyn Wright. http://www.photoattorney.com/. I think she has a book that covers this issue.
Posted by Mel Ladewig on October 28, 2010 at 11:04 AM
In the US, a model release is not required if the image is not used for commercial advertising purposes. Case law provides support for editorial and fine art uses and you can sell that image through those two channels. And for personal uses, there is no problem anyways, you don't need a model release to print the photo and display it in your home. I don't think this forum constitutes commercial use and could be argued as editorial use. There is a recent case that made news regarding a photographer selling street images in a gallery. A man was crying in one of the photos, did not want the photo displayed and sued the photographer, but the photographer and gallery prevailed.
There is an exception. California has some funny laws giving special privileges to celebrities and likeness of themselves and in that case you might have trouble with the fine art sales of celebrity images without a release. A recent case involved vintage images of I believe Marilyn Monroe and the son of the photographer who took them trying to sell prints while the Monroe estate was suing to block the sales. This seems to be in conflict with US copyright laws, but in line with trademark law, so it might go higher in the courts in years to come.
However, if you want to take that photograph and license it for advertisement or commercial use and the person is recognizable, then you're going to have a problem without a model release. If it is a distant person with their back to you, don't worry about it. In this situation, case law clearly comes down on the side of the person/model. Some coffee brand recently had an issue with this type of issue, Taster's Choice if I remember correctly.
So in short, getting a model release allows you to do whatever you want with the image and it is a good idea, but there are still options to use an image without a model release. If you're selling the photograph in an art gallery and the subject isn't famous in California, you can tell them to pound sand and the law is on your side. I'd probably skip using that particular image on your show flyer or card though.
Posted by Ken Atkinson on October 28, 2010 at 11:47 AM
Interesting topic which comes up from time to time. I am curious as to what constitutes "recognizable". I took a picture once of a covered bridge that just happened to have a guy fly fishing in the stream. He was a small element in the image. He would recognize himself, but I doubt if anyone other than his immediate family would. Does that constitute "recognizable"?
Ken
Posted by Mel Ladewig on October 28, 2010 at 12:04 PM
If you can make out his facial features distinctly, I think yes. It seems to be the face that the US courts view as "recognizable".
Thank you all so much for the detailed information!
Posted by Stan Rose on October 30, 2010 at 8:44 PM
Carolyn discussed this at her talk at Telluride--an interesting case is when the photo is used as "fine art" as in a gallery--there was a case in which a Hasidic Jew was photographed and actually lost his case...
Just to clarify, privacy and copyright are completely separate issues. You own the copyright to the work regardless of whether you have a release or not. The release is a written promise that the subject won't sue you for violating his or her privacy rights. While a standard release usually contains a copyright ownership clause favoring the photographer, the copyright is generally not what's at issue in cases like this.
Though privacy laws vary from state to state and usually favor non-commercial photographers, CA and NY have more robust privacy laws, especially as they relate to celebrities. There are a number of good books to read in this area, including one that I helped edit. (Tad Crawford's Legal Guide for Visual Artists). Carolyn Wright has some excellent writings covering these kinds of issues.
Discussion
9 repliesIf I am photographing a scene, like recently at a river where fly fishermen were everywhere, and a person just walks into my shot, and I get a nice shot of him in the landscape... do I need a model release to post or use the photo in any way?
I actually did get a good shot of a fisherman, and asked him for his email address to send the photo to him (he *loved* it!), and so that I would be able to contact him in the future, in case I did need a model release. But I'm not sure it is necessary?
Thanks so much in advance for your answer.
Steve, are you sure about this? Could someone claim a violation of right to privacy if they have not signed a release? I am not saying you're incorrect. I am curious, as well.
--P
If you are not using your images for commercial uses and the person was in a public place where there would be no expectation of privacy, you probably don;t need a model release, but state laws and situations do vary.
If you are uncertain or uncomfortable, then either get the model release, or keep the photo to yourself.
Check with somebody like Carolyn Wright. http://www.photoattorney.com/. I think she has a book that covers this issue.
There is an exception. California has some funny laws giving special privileges to celebrities and likeness of themselves and in that case you might have trouble with the fine art sales of celebrity images without a release. A recent case involved vintage images of I believe Marilyn Monroe and the son of the photographer who took them trying to sell prints while the Monroe estate was suing to block the sales. This seems to be in conflict with US copyright laws, but in line with trademark law, so it might go higher in the courts in years to come.
However, if you want to take that photograph and license it for advertisement or commercial use and the person is recognizable, then you're going to have a problem without a model release. If it is a distant person with their back to you, don't worry about it. In this situation, case law clearly comes down on the side of the person/model. Some coffee brand recently had an issue with this type of issue, Taster's Choice if I remember correctly.
So in short, getting a model release allows you to do whatever you want with the image and it is a good idea, but there are still options to use an image without a model release. If you're selling the photograph in an art gallery and the subject isn't famous in California, you can tell them to pound sand and the law is on your side. I'd probably skip using that particular image on your show flyer or card though.
Ken
Though privacy laws vary from state to state and usually favor non-commercial photographers, CA and NY have more robust privacy laws, especially as they relate to celebrities. There are a number of good books to read in this area, including one that I helped edit. (Tad Crawford's Legal Guide for Visual Artists). Carolyn Wright has some excellent writings covering these kinds of issues.