After spending a bit of time talking with four models over sessions they have had, one being a private session and not intended to be a model session, I am thinking I need to re-write the post on model releases, and make it a little more clear and broader. I also have to put on this post that I am not a lawyer, and that if you need legal advice, you find a lawyer in your area and get the advice from them. Laws vary from state to state, and locality to locality. Something that may be valid in one place may or may not be valid in another. Add to this that just as in sports with every play, everyone can have their own opinion on a play. This doesn’t matter, as it isn’t until a referee, umpire, or judge determines what it means. The same applies to law. Our written laws may say things, but it isn’t until a few cases go through the courts that determine what they really say that it matters and we know what they really mean. This is called common law and legal precedent.
A model release is designed to protect photographers and their clients. A “release” is a form that gives permission for a photographer or their clients to use images, name, or other likeness that the photographer doesn’t have permission to use. There are four rights of privacy that a release is intended to cover:
a) False light – This is giving the wrong impression about who you are. If an image of you is used in an aids drug advertisement, it puts a “false light” on you because many people may assume you have aids. It also covers when an image is edited to have you nude, or your measurements are changed through editing. Depending on the use and how it occurs, it may also be considered defamation and come under libel or slander laws. When there are connotative meanings to where your images are used, they must explicitly say they are released to be used in this way.
b) Misappropriation- everyone has a right to be left alone. Depending on your level of fame or if you are in government, you may have a reduced right to be left alone. Don’t confuse this with the right of publicity.
c) Intrusion- everyone has a right to privacy and solitude. Being in a place like your home, a changing room, a hospital, or the like, you have a reasonable expectation of privacy there. Publishing photographs taken in these types of places is a violation of your rights.
d) Public disclosure-Just because an image is factual and truthful, it isn’t OK to show it or publish that image if it discloses a private fact that may be embarrassing to the subject or model that isn’t public knowledge.
In addition to these rights of privacy, you also have the right of publicity. The right of publicity is your right to extract any and all value with your likeness.
Keep in mind that your state and locality may recognize all these rights or none at all. Your rights of privacy end when you are deceased, but your right of publicity does not. Please talk with a lawyer who can inform you what does and doesn’t apply to you. Know that the laws that apply for your specific situation may vary, too. If you were contacted by someone in another state, and the shoot is in a third state, their are questions of jurisdiction for whose laws apply. This is outside of the scope of this post, but know it can get very complex fairly quickly. This is another reason for having lawyers involved. While investigating something today for a model in my state, Indiana, I found out that the state has granted the rights of privacy protections to everyone including non-residents of the state. So, if you aren’t protected in your location, you might want to point this out to your lawyer.
In a release’s most basic form, only the model or property owner needs to sign the release – it isn’t a contract. With many photographers, they write a release into their contracts of service or the release is also the modeling contract. This means that both people sign the release and that release is a binding contract. A model release can be a really long document or a single sentence. In the industry, though, most photographers will require you to sign a “full” release. If you work for a modeling agency, they will sign the release for you because they will dictate certain conditions as part of your employment as a model. Most people reading this blog will be freelance models, and will need to be familiar with a full release. Most states do not require that a release to be in writing. If you live in Indiana or Virginia, for example, the release can only be given in writing. In these other states, an implied consent can be given. Let me give you an example. Someone, usually a photographer, contacts you, the model, and both agree to do a shoot. You show up and do the shoot. Afterwards, one of the images is being used in an advertisement for a competing company from the one you work. No written release was signed. Even though no release was signed, an implied state would say that you “implied” consent by responding to the person and doing the shoot.
You will frequently hear the term “likeness” when talking about a release and not just “picture” or “image”. What is a “likeness”? This is everything that makes you who you are. This can be your face, your tattoos, your walk, your mannerisms, your voice, how you talk, what you look like, your real name, and anything else that is you. It means a lot more than just the photographs that are taken. A likeness belongs to property (places) and things (costumes, clothing, buildings, animals, art sculptures, etc.) This is why photographers need property releases and has a lot of grey areas. I may cover these in a later blog entry.
Types of use
There are different uses and depending on the type of use, a release may or may not be needed. This isn’t the pictures themselves, but the way those images are being used. Some uses are clear cut, and others more grey. Let us first start with trade or advertising usage. If your likeness is used in an advertisement or to endorse a product or service, the use is trade or advertising. This type of use is always held to the highest standard. All states require a release for this type of use. Another is using an image in the public interest. This is an image taken for news reporting purposes when it is in the interest of the public in general. This has some grey areas in it, but in general, news worthy events and subject matter that capture your likeness do not require a release. You may hear this as “editorial” uses of your likeness. Finally, some forms of fine art doesn’t require a release (art exhibition or publishing in certain books). Even though these are the required uses, many firms are requiring signed releases for what hasn’t needed a release in the past. Fifteen years ago, very few editorial clients required releases from models in the images they used. Today, it is rare to find one that doesn’t require a release. One last thing that needs to be mentioned is that personal photography doesn’t require a release if you pay for the images and the images are solely for your use. Often, though, the client agreement will include a release for the images the photographer takes so they can use your images to market their own services or use the image in contests. Some nefarious photographers might use it to sell the images to someone else for other reasons. An example of this is high school senior portraits.
Copyright and Ownership
The law is very clear who owns the images and the copyright of any images that are taken: the photographer. The only exception is when the photographer does the work as a “work for hire”. In the “work for hire” relationship, the ownership and copyright belongs to the photographer’s client. This means you do not have any rights as a model to do anything with the images that are taken of you. Many models heist images from photographer’s profiles and web sites, and then post them on their own profiles or web sites. Technically, this is theft. The images don’t belong to you. If you are in a TF* (time for…) agreement, you should be receiving some images from the photographer for your book or profiles. If you are paid or you pay for images, you shouldn’t expect any images. Sometimes, you will have a photographer who wants to be nice, and they will provide you with a few images if they can. For you to be able to do anything with the images of you, you need to have a license from the photographer. Remember that “work for hire” mentioned above? In the “work for hire” situation, you won’t get any images because the photographer can’t give them to you. Those images belong to the photographer’s client.
If you are a model, a good lawyer will tell you to never sign a release. You are protected this way. As a photographer, if I hear this from a model, I never work with those models ever again. As a model, you are expected to sign a release so the images taken of you can be used. Without the release, the images are worthless to anyone but you, the model. If you sign ANYTHING at a shoot, you should always read it first and then take a copy of the document with you. Frequently, the photographer will have his own release for you to sign. Read it while you are there, but only sign it after you complete your work. If there is something that you don’t like, indicate what it is that you don’t like and see if the photographer will change it. If he won’t, then you have to decide if you will work with them again or not. But only do this if you can’t come to some agreement on the release.
You may run into a situation where you go to a meet and greet, and the organizers require you to sign a release. Frequently, photographers will have you sign a release, too. If this happens, it is just best to walk away. You never want to have multiple releases of the same shoot and the confusion that goes with having multiple releases. In these types of meet and greets, it is also impossible for photographers to get back in touch with the people who they shot, and you probably won’t see any images from the shoot.
I wanted to cover some more about the different parts of a model release, but this entry has become too long and I thank you for hanging in there and making it to this point. I will cover more in a future blog entry.
EDIT: Someone sent me this link from a website that has actual references to court cases and what the courts have said. It was not used as a reference for the above written document: Sim’s Law: Substantive Law Behind Model Releases (with case references)