It can be a challenge wading through the regulations regarding privacy and publicity and whether you need to have a signed model release for the pictures you’re making. Based on the laws of the United States, here’s what you need to know about when to get a signed release and, perhaps more importantly, when to skip it.
The primary determining factor for a model release is the usage of the photograph. The same image—let’s say it's a portrait of a man in a public park—will require a release for some usage but it won’t require a release for others. For editorial or journalistic use (i.e. as part of a newspaper story about people enjoying the park on a nice spring day) no release is needed. Nor is a release needed for fine art purposes—even if the photographer exhibits, publicizes and sells prints of the work. Because the subject was photographed in public, where there is no reasonable expectation of privacy, the only remaining rights he has regarding the image are publicity rights, and they only come into play when the photograph is used for commercial purposes. If you license the image for use in a toothpaste ad, for instance, you’re going to need a signed model release. But that’s not all you’ll need; you will need to have compensated the man fairly in exchange for his signature.
There’s considerable legal precedent to establish that a signed release is not necessarily enough to completely cover you in court. Like most contracts, all a model release does is provide evidence to show the judge that you were acting in good faith and had reached a mutual agreement at the time of the shoot. In the United States, anyone can sue anybody for anything. Model releases offer no guarantee that you won’t get sued. Plenty of folks have signed a release and later sued and won their suit.
To make a model release legal and binding, there has to be an equitable exchange—what the American Society of Media Photographers (ASMP) calls “valuable consideration received.” In the old days, a lot of photographers would give a subject a dollar and think of it as valuable consideration—until that sort of thing stopped holding up in court. Instead, it’s suggested that real value—a print, an image file, or preferably a payment commensurate with the value of the photo—improve the odds of a judge seeing things your way. Without such an equitable exchange you could find yourself paying later based on the newly established value of the image—which is not ideal if the image has become high profile and profitable enough to prompt the subject to sue you in the first place.
Just like a signed model release alone isn’t necessarily sufficient, valuable consideration alone isn’t necessarily sufficient to cover the situation. For example, one type of valuable consideration is a salary. If an employer asks an employee to participate in the photo shoot, the photographer might think a release is unnecessary. But what if that employer spends a lot of money printing a lot of marketing materials featuring the image of that happy employee before that employee turns unhappy and leaves? Without a signed release, the now unhappy former employee could have both you as the photographer and his former employer over a proverbial barrel. When the work is commercial in nature, a model release really is essential.
It may seem that the best practice, then, is simply to have every subject sign a model release every time. But if a release is unnecessary, why waste valuable time and possibly even compromise your ability to make pictures in order to get a signed model release that’s superfluous in the first place?
Photographer J. Raymond Mireles has studied this question as part of a long-term project in which he’s photographing Americans in each of the 50 states. Mirales advises photographers to avoid this redundant and unnecessary approach in favor of spending more time making better pictures. Though he also shoots commercial assignments for which he does use releases as necessary, for this fine art portrait project he is not getting signed releases from his subjects.
“For a model release to be valid,” Mireles says, “I have to give something to the other party. That opens up a Pandora’s box. Do I give money? If so, how much? Once money enters the picture it changes the dynamic of the project. What a hassle that would be. My interactions with subjects are often extremely brief. There’s no time to get a release. I’d rather spend my time shooting and asking people if I can photograph them than trying to address all of the issues that would be brought up by asking someone to sign a legally binding contract. The less I complicate the process, the better.”
People are intimidated and put off when a photographer hurriedly shoves a wordy legal document their way and asks them to sign away their rights. This is not an ideal situation in which to cultivate positive relationships, no matter how fleeting they may be.
“I’d rather get more portraits than fewer because I was getting a release,” Mireles says. “If I were to ask for releases, I would have to have an assistant dedicated to just that task in addition to my photo assistant who I travel with. Again, more expense and complication.”
Mireles isn’t stubbornly opposed to releases. He just advocates for photographers to understand the legal best practices that pertain to the work they’re creating. When he shoots commercial projects, he protects himself and his clients with a release. He does the same for fine art photography of sensitive topics.
“For my commercial work,” Mireles says, “I always get a model release. It’s part of my job. If I don’t get a release I’m putting myself and my client at risk. I’m also not opposed to a release even with my own artwork. I recently shot a project where I had people that I photographed on the street sign a release. The use may be considered ‘sensitive’ so I wanted a release to protect me in the even that there were objections to the final work. A release is part of the photographer’s toolkit, like any piece of equipment. Sometimes a job calls for available light, sometimes it calls for off-camera flash. I’m not opposed to either. As a pro I’m expected to have the knowledge and experience to know what is going to work best for any given shoot.”
To learn more about major legal precedents influencing photography in public spaces as well as fine art and editorial uses, have a look at the cases of Nussenzweig v. DiCorcia, Hoepker v. Kruger and Foster v. Svenson, all of which upheld a photographer’s right to use an image without the subject’s consent.
To see more of J. Raymond Mireles’s photography, visit his website at jraymondmireles.com.