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Tuesday, July 11, 2006

Model Releases: Who is Ultimately Responsible?

When photographers discuss model releases, questions or statements usually start with a phrase like, "Do you need a release when...", or "You should get a release if you ..."

For example, consider these common questions:

Do I need a release for a photo I shot of someone in a public place?

Should I get a release even if the person in the photo is unrecognizable?

Can I license an unreleased photograph of someone if they've since died?

Can you answer these questions? if your answer was either "yes" or "no," you're wrong. Surprised? The reason isn't just that there are gray areas of the law, it's because none of these questions indicate a use for the image in question. Only then can you begin to answer it. (And then the gray areas apply.) Is the image to be used in an advertisement? Or, is the image to be used in the newspaper? Ah, now you're starting to see the point. Well, you are if you understand the difference that images to be used in advertisements require a release due to commerce laws, and images used in newspapers don't require a release because of free speech, as protected by the First Amendment.

Most seasoned photographers are familiar with these two easily-identified endpoints of the legal spectrum, but even the best of them still get caught up in the legal gray areas of when a release is required for any given use. When trying to help people learn this stuff, I realized that a very fundamental point--almost too-obvious, in fact--has been overlooked as an introduction to the whole topic. I'll express it in the form of a provocative question: "who is ultimately responsible for a photo being released?"

People's natural assumption is that the photographer is ultimately responsible, yet, it may surprise you to know that the photographer isn't ultimately culpable. It's the publisher of an image that carries all the liability. Yes, whoever it is that puts the image into use needs to have the photo release because, as its name implies, a model release "releases the user of liability." Who is the user? The publisher.

(Granted, many model releases are written to grant the photographer "rights of usage" of the image or likeness of the person, but a properly written release grants the photographer the right to "license the image to third parties," or grants the ability to "transfer the rights" to third parties.)

So, if this is the case, why do photographers get so bent out of shape about needing a release? We'll touch upon that in a moment. But the business reasons for it are simple: the practical reality is that you're taking a picture of someone, so you have quick, immediate access to that person to get them to sign a release. With a released photo, the photographer can then go find clients, who don't have hunt down the person and ask for a release. That would be so impractical, if not impossible, that publishers license photos from photographers who already have the releases in hand. So, it has become the modus operandi of photographers to get people to sign releases when they photograph them because it helps make business happen.

That addresses the advantage of getting a release, but it doesn't answer why photographers get bent out of shape about when they need one. Making things worse, most freelance stock photographers usually don't know at the time a photo is taken how it may be used (if ever) by any given client, so the release they want the subject to sign is generally open-ended. This is what causes the anxiety: knowing what conditions require a release helps photographers forecast what kind of release they should use.

Who sues Whom?
But, all of this may not really amount to anything worth worrying about too much. Yet. We'll get to that, but first, let's examine what happens if the use of an image would require a release, but subject never signed one. The subject could sue the publisher. But what about you? The popular (and simplistic) belief is that you are liable too. OK, but how extensive is that liability? What can you do to minimize it, or even eliminate it? What does this do to your business opportunities?

Now, I'm not suggesting that anything about the rules or legality of releases as changed. I'm simply using these questions--and their associated answers--as teaching tools to help people better understand how releases work and why. As an extra benefit, you may be able to not only protect yourself further, but find new business opportunities. We'll get to that part in due time.

The Indemnity Clause
Because publishers are ultimately responsible if someone were to sue them for the use of an image, they protect themselves by asking photographers either for copies of releases already obtained from the subject, or by warranting (or guaranteeing) that such releases exist. This "warrant" means that if the subject were to make a legal claim against the publisher, the publisher will then come to you (legally) and say, "Please give us a copy of the release you said you had. If you don't have it, you have to protect us in this lawsuit." This translates to "you pay our legal bills and any damages that may come from a lawsuit, regardless of the circumstances." This touches upon a point we'll get back to later: if you said you had a release, but don't, then things can get ugly.

The section of the publisher's license agreement that gives them this protection is called "The Indemnity Clause." The verb "indemnify" means "to secure (or make compensation) against hurt, loss, or damage." Bottom line: this clause puts all the responsibility back onto you. And that's why photographers assume they are ultimately responsible if they license images that haven't been released, and why they get bent out of shape about it.

If it were that simple, we'd be done with the discussion, but in real-world situations, it's not quite so simple. First, someone that may make a claim against the publisher is likely doing it for the money, and since many large media companies have a lot more money than small, independent, freelance photographers, chances are that the lawyers filing the suit are going to ignore the company's attempt to bring you into the picture. Oh, you will be called for sure, but your ability to defend a large media company (or do much of anything, frankly) is likely to be limited to giving a deposition. The opposing lawyers are going to focus all their attention directly on where the money is: the publisher. They may make many allegations (perhaps some without merit) about how the company used the image in inappropriate ways that supersede whatever may be in the model release. And if a release doesn't even exist, they will claim the publisher was negligent in determining this fact, and claim even more money from them. So, this process is going to require the time and attention of the publisher's lawyers, which will almost certainly end in a financial settlement that won't involve you.

(If the company wanted to try to recover damages from you during or after the process, they'll likely see that your net worth isn't going to cover their own legal bills in the attempt.)

Now, this dose of reality is not intended to give you the false sense of security that you are feel free and clear to do whatever you like with any image. It's not that easy to do either. Remember, the publisher (usually) already knows the routine I just described above, and they don't want to assume that kind of liability without some solid assurances that the image(s) they use are free and clear of question. That is, they already know their indemnity clause isn't going to amount to much, even if it is written to be grossly in their favor. They also know that there are risks with your model release, even though it may be signed. Do they know for sure that you haven't forged it using your uncle Larry's scribble as the signatory? Do they want to risk a million-dollar ad campaign on this promise of yours that they'd never recover from you if you lied? Of course not.

In the final analysis, the publisher doesn't want to take risks, and your model release, while important, has its limitations in its perceived protection. The likelihood that they license an image from a small, unknown photographer is inversely proportional to the risk of using it. Put another way, the more important the image is, the more likely that they're going to hire a model and a photographer on their own, and make sure they sign a specific release of theirs. This sadly means that most images that publishers license from you will be those that are deemed to be low in risk; hence, low in importance; and (sigh) low in pay. On the positive side, it also means it'll be less "important" that your image needs to be actually released, or if the release is all that tightly written. This kind of "calculated risk" is always under consideration by publishers.

Again, the simple reader may come away from this with an equally simple interpretation that one has nothing to worry about. Quite a turn-around from how this all got started: by anxiety of when a release is required! In the best case, your money may not have anything to worry about, but your life can still become very difficult indeed. In the worst cases, you can still get burned if you play with fire.

The Reverse-indemnity Clause
There are two things you should do to protect yourself. Despite the fact that the real-world acts more in your favor than you might have thought, there are better protections you should employ. A common situation is where the publisher's interpretation of the law is too liberal--where they feel a given use for an image does not need a release, even though others (including you) may feel otherwise.

For example, if an ad agency wants to use your image of a woman in a bikini for an public health campaign, and in doing so, uses it for an awareness campaign about AIDS, this presents a very difficult problem. If the woman sues the company because she believes everyone now thinks she has AIDS, she may hire lawyers who now come to you regarding the model release. Regardless of whether you have one, it's likely that the use did more than just financial harm to the woman in question, which means that you could be in hot doo-doo, release or not. And all this would not have happened (at least, not as badly), had it not been for that indemnity clause that you thought may not be all that bad.

To help with these types of risks, you may want to give yourself a tad more protection by having your own indemnity clause. Here, you would clarify that "the company may not using the image in any way that would require a stronger release" than what you have. (Incidentally, this may actually include the case where no such release exists.)

In theory that sounds great, but there's a hitch: a company isn't likely to sign up for this. It's difficult to get companies to agree to having their contract modified, especially in this way. (Worse, especially if they interpret the language as a statement that you don't even have a release.) If I can't negotiate reciprocal indemnity language into the license agreement, I simply include it in both my price quotes and in my final invoices, both of which act as legal documents, and are often overlooked by a company's legal department (because this paperwork goes through accounting, not legal).

Can this be defended legally? It depends on the circumstances of the case, the lawyers involved, and people's ability to effectively argue their positions. It short, it's a "calculated risk," in the same way that the publishers do with their indemnity clause to you. Suffice to say, it's better to have that protection than not have it, even if it may not be used.

Having your own indemnity clause is good protection, but calculated. To bolster your odds in that calculation, we come to the second way to protect yourself. Oddly, it's the simplest and most obvious thing: fully disclose the status of a photograph to whomever licenses it. If you are honest about whether an image has a release, and the client has been notified of this, then you cannot be held responsible for anything the client does with that picture, including if they use it in an ad or any other form that would require a release. Two obvious examples illustrate this point:

  You photographed firemen from a street saving a baby's life from a blazing fire, and sell it to the local newspaper for front-page coverage. Later, someone at the paper decides to use it in an ad to promote itself, and someone in the photograph objects to this, then you cannot be held responsible.

  If you licensed an unreleased photograph of a person in a public place to a client that said they were going to use it in a school text book, but they use the image as part of their ad campaign for the company, then you are not responsible.

Therefore, putting these strategies together, you are fully absolved of any responsibility for how a photo is used, or whether you have a release, if you fully disclose the status of the image, and include that disclosure in written form, preferably as part of an indemnification clause you add to your license agreement (or in any legal communication to the client that demonstrates they are aware of that communication).

Obviously, clients that need released images are going to pass on those that you've disclosed as having no release. Protecting yourself doesn't necessarily mean business will happen. Clearly, the recommendations above will only apply in the cases where a release probably isn't necessary anyway. However, the strategy can--and should--be applied to cases where you do have a release as well. Here, disclosing the language of the release (if not the physical document itself) gives the publisher notice about what it is they're getting so they can make their own risk assessment. Again, you are not responsible for what they do once the ball is in their court if you have disclosed the usage, and gotten them to indemnify you. If you only got half-way, in that you disclosed what you have (or don't have), but they decline to indemnify you, I call your attention to that real-world scenario discussed earlier, where a litigating party is really less interested in you anyway... unless you have enough money to get their attention, in which case, it's you that needs to do the risk assessment. (Frankly, if you have that much money, you're not likely to be a photographer. But I digress.)

Business, anyone?
So, how does all this help your business opportunities? First, let's look back at the initial questions I cited that people ask about when model releases are needed. By now, it should be abundantly clear that unless a use for an image is known, the question is open-ended. And even when a use is known, not everyone may necessarily agree on whether that use requires a release. Since it's ultimately the responsibility of the publisher to have a release (because they are the ones putting the image into use), it's your concern only so far as your liability to them is in place. Even then, your real-world liability may be limited, but having extra protection never hurts. Since you may not be able to have every image released, and you may not be able to get every client to agree to your indemnity clause, you need to assess whether the publisher's interpretation of "need" is too conservative or too liberal, which may affect whether you feel the need to protect yourself, and to what extent.

It should be emphasized that different publishers vary in their own assessment of any given use, so don't extrapolate what one client thinks as legally "correct," or as a de-facto standard industry-wide. Furthermore, you may entirely disagree with the publisher on their interpretation. This can go both ways:

First, realize that, since publishers know they can be held responsible (and thus, culpable) for image use, they may require a release for images, even though the use itself may not actually require one. Do not interpret this as a verification that such a use does, in fact, require a release. It does not! It may only indicate what the publisher's legal risk tolerance is. If an editorial publisher who does art books wants you to have all pictures of people released before they will publish your work, this does not mean that you prior understanding of such usage was wrong. It only means that your publisher is very worried about merit-less lawsuits.

Alternatively, you may come across a publisher that doesn't even ask whether an image is released for a particular use, but you get the feeling that maybe the use really would demand it. Since the publisher is liable first, you need to at least make sure you don't indemnify them, and that they acknowledge that you are providing them an unreleased image. This should be protection enough, but if you can go the extra step, why not: include your indemnification clause in the contract, or in your invoice or receipt.

In the end, if you provided an unreleased image to a client that was properly so informed about its status, but they get sued anyway, you are not culpable. This is the case whether the use turned out to actually require a release or not.

Note that, in the real world, there are more sales opportunities for editorial use of images, most of which don't require release. The more images you have of (even) unreleased images, the more business opportunities you have with editorial clients.

So, if you've been hampered by worrying about shooting because you may not be able to obtain a release, you've only curtailed your business prospects. This means you should feel free to photograph all you can. Acquiring the most content possible is critical to building a viable photography business. Get releases when you can, because this makes life easier later. But if you can't, don't let this slow you down.

There's no question that your best opportunities arise when you have signed releases for pictures of people. But, since that's not always possible, it's short-sighted to be too conservative and not shoot, or even avoid displaying, unreleased photographs of people. When a client comes to you for an image, let them determine whether it needs to be released.

Learn more about model releases here: http://www.danheller.com/model-release