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Tuesday, February 26, 2008

Model Releases: Why US laws are important to non-US photographers

Since I posted my announcement of my model release book, the most frequently asked question has been, "Why do you only focus on US laws? What about the rest of the world?"

To understand that, one must first get familiar with the nuances of how and why model releases are necessary. For that, I urge you to read my model release primer. There, you will learn that the liability of publishing an unreleased photo of someone is not the photographer's, but the publisher's. In other words, your client. Whoever buys photos from you is the one that can get sued if the person in the photo hasn't been released. Despite popular misunderstandings, photographers don't get model releases to protect themselves, they get model releases so they can broaden the market of buyers of their photos. A released photo has a better chance of selling than an unreleased photo. (And sometimes, for more money.) So, if your business is to sell as much as possible, you want to broaden that range of buyers to the widest possible audience.

Now, if you're a photographer in France or Germany thinking that because all your clients are local to your country, you don't need to worry about US laws, think again.

There are two very important truisms about the photo industry: First, the US is where most photos that would need model releases end up because international trade and other matters of globalization. In other words, the US is a target market for most everyone now, even if indirectly or unintentionally. Making matters more critical is that the US has some of the most punitive laws protecting people's privacy and publicity, and they can apply to anyone, not just US citizens. Statistically, people sue in the US over such matters more than any other country, and the damages are very, very high. This all adds up to very paranoid companies that want extra protection. Indeed, anyone that does any kind of international business at all will be very cognizant of US laws, and may only license images that have releases that satisfy US laws.

You see, US laws begin with where an "infringement" took place. And in today's world of global distribution of content, either in print form or over the Internet or on TV, that could be the US. Where that is is called "jurisdiction." Since it is the publication of the image that triggers the need for a release, the question is whether any of the following entities reside in the US: the publication, the company that published it, any of its business associates (such as sales reps, etc.), or even the target audience they are advertising to. If any of these entities exist in the US, it is said that the publisher has "presence" in the US, in which case, a suit can be filed in the US under US laws. This is true regardless of the nationality of any of the parties involved. If you are from another country, and take a picture of someone in another country, and license it (without a release) to a non-US company, but they used it in an ad in a magazine that is published or distributed in the U.S., the subject could file a claim against that company in the US under US laws.

Because of this, international companies that advertise in international magazines, or on the internet, or on television must be cognizant of laws that apply in each of the countries in which it has "presence." While that may sound onerous (it is), I come back once again to my earlier point: the US has some of the most punitive laws and litigious culture than any other country. So, it is more likely that a company that complies with US laws is probably covered for most other countries as well. And you want to sell photos to those companies.

Oh, you may object to some legal details if you like. Yes, I'm simplifying to some degree, because proving that a company actually has "presence" in the US could be onerous as well. Clever lawyers will do their darnedest to refute such broad interpretations of law in other countries. But, clever lawyers act on behalf of the plaintiff as well, so this sword cuts both ways. Still, it's true that a local German company that sells local beer to a limited geographic region is not going to get called into a US court just because they happen to have a website that has an unreleased photo of someone and that website can be seen in the US. It'd be hard to convince a judge that there's any real "presence" there. So, let's not get carried away with ourselves: not every use of any photo is suddenly subject to US laws or courts.

But, again, let me remind you of your job as a photographer: to cast the widest net to catch as many buyers as possible. If you are knowledgeable of (and comply with) US laws in your photo business, you will not only get more potential US-based buyers of your imagery (not a small market by any measure), but you'll have a better reach for your local buyers as well. And that's really what this is all about.

For completeness, there's the other side of the coin that may surprise many people. If you took a photo of an American citizen and licensed it to a magazine in Cuba, where there are no such privacy or publicity laws, the infringement took place in a jurisdiction where no such protections are provided, and no claim can be made. The fact that the subject is American is irrelevant. You can publish naked pictures of Paris Hilton in Cuba and she can't sue you. (Of course, the Cubans authorities might not take too kindly to it, but that's a business decision you'll have to make.)

In summary, U.S. laws still apply if you license images to clients that publish in, or distribute to the U.S., which covers a lot of international media. Regardless of where you live, or to whom you license photos, your clients may need to consider U.S. laws, which, in turn, can affect business decisions you make. So, it's in your interests to understand US laws.

And yes, this is all covered in my new model release book. And, for what it's worth, the combination of the low value of the dollar, and some really great postal rates I've gotten, it's a bargain when you buy it on my website.

(NOTE: the shameless bit of self-promotion you just saw was that of a sudden switheroo to my being the lowly salesman type. I disavow my actions on this matter, as it was imposed upon me on the advice of my PR rep, who also happens to be me. But that's a technicality that you can take up with any one of my vast arsenal of lawyers in waiting.)

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