"Commercial Uses" and Model Releases

In my last blog post, "Myth-Busting Model Releases", I received quite a bit of email from people about "commercial uses"of images, pointing to other discussion forums where, again, myths and hearsay prevailed among many misinformed, but well-intentioned photographers.

The common assumption is that "commercial uses" of images require model releases, but that's not actually true. The sole trigger for whether a release is required rests on whether the subject can be perceived as supporting or advocating a particular idea, product or service. True, many "commercial" uses of images do have people appearing to be advocates, and this is where the oversimplification begins. People overlook the many commercial uses where a person can be presented without appearing to be a supporter or advocate. Similarly, there are non-commercial uses that do portray the subject as a supporter or advocate, which would require a release. Two examples follow:

On the commercial side, there are companies that sell books, magazines, newspapers and other forms of media. While the content of their media may be editorial in nature (which doesn't require a release), the promotion of their products is commercial in nature. Just because they may be promoting an editorial product, it's irrelevant. Promotion is a commercial activity. Full stop. But again, "commercial use" does not itself trigger the need for a release.


For example, a highly critical book about Rush Limbaugh ("The Most Dangerous Man in America"), by John Wilson) sports a photo of Rush himself on the front cover. And given the scathing nature of how Rush is portrayed in the book as an irresponsible, sexist, racist, ideologue, one would expect that Rush signed no model release or provided consent of any kind to have him or his likeness be associated in any way with this book. Obviously, the text is editorial commentary about the controversial radio host, so no consent is necessary for using the photo on the book itself.

But what about the promotion and advertising for the book? Both of those are "commercial" in nature: profits are made, and the book itself is a product. Again: promotion is "commercial use." Full Stop. So, one would think that Rush would have his lawyers find any legal position possible to stop or slow down the supply chain, from the photographer to the stock agency to the publisher. Yet, there it is in full color, used to both promote and advertise the book.

The reason a release is not required is not because this was the photo used on the book, but because this photo—or most any photo—would not cause a common person to believe that Rush is an advocate or sponsor of the book. (If there were a photo of Rush standing proudly next to a poster sized replica of the book, then such a photo could suggest he advocated the book, although the existence of such a photo would be unlikely.)

So, the fact that a photo is used as part of a promotion is a red herring. Photos may be on web pages, in portfolios, and presented for sale, yet the "advocacy" question is not satisfied simply because photos are displayed. There has to be more context to imply advocacy.

This is true of non-commercial uses as well. Non-profit companies often believe they can use photos of people in their materials because they are implicitly "non-commercial." But again, the determining factor is whether the person could be perceived as an advocate or sponsor of the organization.

Speaking of supply chain, note that the photographer who shot the photo of Rush Limbaugh didn't need a release to take the picture or to sell the image; he didn't need to know what the buyer was going to use it for, assuming he was even aware that someone was buying it. Similarly, a stock photo agency can display the image online, which is how the book publisher (Thomas Dunn Books) found it.

The moral of the story is, take "commercial use" out of your vernacular, and only focus on the "advocacy" question. And while that's the right place to start, such assessments are not always easy; people disagree on specific cases and argue incessantly.

A common example is photographer's own self-promotional pieces. Naturally, most believe that these are "commercial use" of images, but again, that's not the sole trigger. Most images used as part of a piece that promotes someone as a photographer is almost universally interpreted by the public as "examples" of the artists' work, not necessarily as advocates for them. Such an assertion would require text, often in the form of a quote praising the photographer's work. That context would require consent from the person depicted.

As for being in the business of selling photos, photographers are never responsible for having to know the answer the "advocacy question." Someone else is going to publish their pictures, which means that the buyer bears the risk. Photographers or stock agencies can't be responsible for how other people use the images they acquire, especially because one can't make the advocacy assessment until the photo is ultimately put to use, which is long after the financial transaction took place.

Lastly, there are portfolios: Photographers do not need releases for photos for these.

First, a portfolio is rarely considered a "promotional" item, unless it's put together very poorly. Professional portfolios consist of a collection of artistic works that demonstrate the skills and talents of the photographer. For any given image to be interpreted as to suggest the subject were an advocate for the photographer, particular text would have to be used, which is not typical for a good portfolio, which means that permission is not required in order to use photos of people. This includes all forms of publication of the portfolio, whether in physical form, or as a website, or other media.

The one thing to be aware of, however, is that sometimes photographers take pictures of people in special, "closed sessions," where an agreement was made ahead of time—before the photo was taken. If a subject posed for a photographer with the pre-arranged agreement that the photos would not be used in a portfolio or any other manner, than that agreement takes precedent. (Of course, a new agreement, such as a model release, can supersede it.) Such an agreement would have to be established first--it cannot be retroactively enforced.

That said, any good photographer would honor such a request, even if he or she didn't have to.

Busting Myths about Model Releases

The internet is a virtual echo-chamber of facts and myths of all sorts. When something goes viral, there's no stopping it. Even the most blatant falsehoods can perpetuate for years if they cause no harm in believing them. An example is the myth that the different regions of the tongue tastes different types of things: sweet in the front, sour in the back, etc.. In fact, all taste buds are identical, but the myth started from a single, faulty study in the 1800s that was published in a school text book, and it's been repeated ever since.

In the photo business, the greatest myths are those involving model releases. If you have ever considered selling (or licensing) photos on your own, or through a stock agency, you've probably been told that photographers need "model releases" to sell photos of people, and "property releases" to sell photos of buildings and the like. Some stock agencies actually reject images unless these photos have releases.

While it's true that model release are necessary for certain situations, the actual laws about these issues are deep and complex. As rumors and hearsay perpetuate on the net, the over-simplification has resulted in virtually all the "advice" and conventional wisdom about model releases to be entirely wrong. And the reason why these myths perpetuate is because they cause no harm. No one ever got sued for having a model release. So, people follow the advice because they (and others) seem to be safe, perpetuating the myths.

So, why address the myths about model releases? Because photographers are losing enormous opportunity by not trying to sell the images they don't have releases for, and by going to great lengths to get releases they don't need. Despite the rumors, most publications of photos are not the type that need releases anyway, resulting in an enormous market of buyers. Most photographers could continue to have very successful businesses without ever getting model releases, all while doing exactly what they are doing today. Sure, releases are important for many types of publishers, so if you do get releases for their benefit, you can expand your buyer base by getting them. But it's a proportionally smaller market than people think, and the time, effort and resources necessary to properly obtain, manage and catalog releases is rather substantial. This investment will rarely be offset by the incremental income from sales of images that actually do require releases.

This article attempts to help the photographer looking to make money by setting the record straight on the most common myths about model releases.

Fact #1: You do not need a model release to take pictures.

Nuff said. Don't let anyone tell you otherwise. Everyone in the world has a camera on their phones, and photos are taken constantly. You don't need someone's permission to take their pictures. Now, just because you might eventually intend to sell your photos has nothing to do with the ability to take pictures in the first place.

Fact #2 You do not need a model release to sell pictures. And "profit" has no effect on whether a release is required.

First, newspapers buy photos, and their use of the photo is unlikely to need a release. So, selling a photo (and making a profit doing so) to a newspaper also does not require a release. And because the law does not require you to have any knowledge of the buyer or their intended use of a photo, you are always allowed to sell photos without a release.

Fact #3 You do not need a model release to make photos available for sale, either on your own website, or through a stock agency.

If one can sell a photo without a release, one must also be able to "make photos available for sale" without a release. This includes the publication of such photos in a manner that would allow potential buyers to find them.

The legal case that established precedent for this was Corbis vs. James Brown, where the judge called the depiction of a photo as being for sale a "vehicle of information". Here, consent from a subject is not required.

Therefore, one can make photos available for sale in any manner of publication and media, whether it's traditional print or online formats, including personal web pages, photo-sharing sites, social media sites, stock photo sites, or mostly anywhere.

For detailed information, see the article, Model Release Primer.

Fact #4: A "property release" is NOT required to sell or buy photos of buildings or people's personal property (like land).

The root of this misunderstanding is complicated. The term "property" in an actual "property release" refers to two particular forms of intellectual property: trademarks and copyrights. Examples include logos, designs and other works.

Now, just because these are "protected" works, it doesn't mean that one cannot publish photos of them. It only means that the manner in which such works are depicted cannot cause confusion among the general public about who "owns" the properties, or other legally complex factors. It is impossible for a photo of a bottle of coke to cause the general public to suddenly think that the Coca Cola company was now owned by a freelance photographer in Topeka. If the photographer sold the image to a publisher, and the publisher's use of the image would imply that it had a unique and special business relationship with Coke, then that would trigger a trademark infringement claim. But that would be with the publisher, not the photographer, nor the stock agency that sold the image. Furthermore, such an infringement couldn't possibly happen by merely the photo being printed. Text around the photo would have to give this impression. And, since the photographer or anyone selling such a photo cannot know or control how a publisher uses a photo, they could never be held liable for the infringement.

Like the myth about the tongue's different taste regions, the history of the "property release" stems from a single misimpression from long ago. Certain physical structures, such as the Golden Gate Bridge and the Transamerica building in San Francisco happen to be registered trademarks. And, they have been infringed upon inappropriately in the past, but these were cases that have nothing whatsoever to do with photography. And at the time, news of these suits briefly caused publishers to shy away from publishing photos of such places unless photographers could provide property releases for them. Those releases were not for the buildings, but for the right to use the trademarks. This was very short-lived, however, because it is impossible for photographers to obtain "true" (and legally valid) property releases for trademarks without paying enormous sums of money. So, even though the publishers stopped asking for those releases, the rumor perpetuated nonetheless: photographers erroneously interpreted these requests as "mandates" that all photos of buildings required "property releases." And they've been behaving that way ever since.

To be crystal clear, property releases are not required to sell or resell photos of buildings and other real estate (or physical property of any sort, such as land, pets, livestock, homes, etc). If something happens to be a registered trademark (building or otherwise), then the publisher will already be quite aware that they are the ones that need to obtain permission from the trademark owner (which may not even be the building owner). Any permission obtained by the photographer would be entirely useless to the publisher. In fact, every single property release used by photographers gives no legal right to use a trademark, and since buildings and other items do not require consent for photos of them to be used, these property releases are worthless pieces of paper. But they also cause no harm.

For more, see Photographers' issues concerning trademarks and photography.

Fact #5 You usually do not need permission to shoot pictures of (or on) private property.

While it's true that property owners can restrict photography, that's not saying much. They can also stop you from picking your nose. It's their property, so they can stop anyone from doing anything. You've seen signs that say, "No shoes, no shirt, no service." There's also the sign that reads, "We reserve the right to refuse service to anyone." In short, property owners can apply restrictions indiscriminately and inconsistently and arbitrarily.

But, the owner has to proactively take an action to prevent you from doing things. It's not that you're prohibited from actions by default, and they then grant you permission later. So, most of the time, there are rarely (if any) actual restrictions property owners enforce.

This includes taking pictures. It's permitted by default, and to prevent it they must take explicit actions, including (but not necessarily limited to) posting signs, as noted above. If you are not stopped (or are given reasonable advanced notice), any photos you take are legitimate, and can be sold legitimately. (See later section on "ownership.") Further, one may not retroactively enforce their restriction. That is, if you were at a private event, and then later told you were not allowed to take pictures, it has no affect on your photos or your ability to sell those images. (Publishers, on the other hand, may need releases if the nature of the publication would require it. But that doesn't affect the photographer's liability.)

So, if you're in a bar, or in an amusement park, or touring a winery, you are allowed to take pictures unless you're told not to while you're there. And if you do take pictures, you can sell them to any buyer willing to assume the risk, if any exists.

Sometimes, photographers will often seek permission to shoot pictures ahead of time. This is not only unnecessary, but invites someone from stopping them. If you know ahead of time that you will need permission, that's another story.

Fact #6: You do not need releases for Art, Books, Exhibitions, Presentations, Fairs, Contests, Postcards, Calendars, Etc.

At the risk of over-simplification, the only time a release is needed is if a person can be seen as supporting or advocating an idea, product or service. True, there are often disputes about whether a given publication of a photo of someone could be construed in such a way, but the dispute gets closer into the safety zone when that publication is a form of artistic expression. The First Amendment of the US Constitution protects "artistic exhibitions" (and publications) as a form of free speech, so consent from anyone else—by definition—is never required. Money or profit has nothing to do with whether a work is published or "depicted in an artistic manner."

Again, people argue frequently about whether such depictions are, in fact, artistic in nature, which leads to a complex argument: is it art, and if not, is it a promotion, and if so, is it the type of promotion that should have required consent from the person in the photo?

While these are all good questions, the reality is that no one has ever successfully won the argument that a model release was necessary for a photo that was used in a book, in an art gallery, or at a fair, or any of the items in the above list. In short, the law is on the side of the First Amendment by default - a claimant bears the burden of proving otherwise, and that's a difficult and very expensive bar to clear. While is indeed a very deep and complex subject, those wishing to seek quick answers can feel relaxed: "don't worry. You're fine."

For for more info, I encourage you to read this.

Fact #7: Photographers do not need releases for photos in their portfolio.

A portfolio is a collection of artistic works that demonstrate the skills and talents of the photographer. Permission is not required in order to use photos of people in a portfolio. This includes all forms of publication of the portfolio, whether in physical form, or as a website, or other media.

The one thing to be aware of, however, is that sometimes photographers take pictures of people in special, "closed sessions," where an agreement was made ahead of time—before the photo was taken. If a subject posed for a photographer with the pre-arranged agreement that the photos would not be used in a portfolio or any other manner, than that agreement takes precedent. (Of course, a new agreement, such as a model release, can supersede it.)

For more on this, see Personal Privacy and Model Releases

Fact #8: Posting photos online is just another form of publishing.

What determines the need for a release is whether a photo makes someone appear to support, advocate or promote ideas, products or services. The medium itself is irrelevant, whether it's traditional physical media, or online/electronic media. One cannot say whether a release is required for photos "posted on the web" because it depends on the way the photo depicts the person in it.

When photographers put images on their professional website, they think that this suggests that the people in those photos could be construed as sponsors or advocates, but that's not complete. Putting photos online to "sell" does not require a release, depictions of "art" do not require a release, and a "portfolio" does not require a release. The only way a photo would require a release is if the photographer created a self-promotional piece (such as an ad) that promoted his or her services, and used a photo of someone that might suggest it is a client.

Fact #9 Ownership of physical pictures and ownership of rights are different.

When people hire photographers to take pictures of them, they think they own the photos, or have rights to publish them. They don't. This has to be agreed upon, usually ahead of time (but it can be negotiated later.) Normally, this isn't a problem. But where things break down is when subjects don't like the photos of themselves. Here, they try to demand them back, but they don't have this right. (They also cannot retract permission if it's been granted in writing, such as a model release.)

The same thing is true of pictures taken on (or of) people's property. They think that because it's their house, or their private event, or their pet, that they have the rights to the photos. They don't. Nor can they stop the photographer from publishing those photos. Non-humans do not have inherent rights, unless protected by trademark or copyright.

Concusion

The reality is that photographers (and stock agencies) don't get sued for the publication of an unreleased image. And given the very high cost of suing someone, litigants are usually told by their lawyers to go after the "publishers" of the images in question, as they are the ones who bear the true legal liability.

As an active photographer, understand that most people are entirely uninformed about model releases, and factor this into your business dealings. Publishers, stock agencies and many others may vehemently demand a model (or property) release before buying photos, or for accepting your images into a stock agency. Despite their being wrong, this is the way of the world, and you can only do what they ask, or don't play.

But don't underestimate the sales potential of your unreleased images, and the large market of buyers who don't make such demands.

For those with interest in reading the details, I have many articles that answer all the technical questions, like this one and this one. I also wrote a book called, Photographer's Guide to Model Releases.

Model Release Seminar: Tuesday Nov 9 (ASMP, SF chapter)

I forgot to mention this sooner: I'm giving a three-hour seminar on model releases as the San Francisco chapter of the ASMP starting at 6pm ($20 for non-ASMP members, $5 for members, but then, there's free food).

Information can be seen at www.asmpnorcal.org

When Editorial Uses of Photos Require Model Releases

Recently, I've noticed a big increase of discussions on photo forums involving questions of whether model releases are necessary for certain types of shooting conditions. What struck me is that so many of these questions were about the need for releases for editorial uses, a form that normally doesn't require model releases anyway.

Here are some examples that came up in discussions, all of which share a common theme.

1. You're a wedding photographer and you're shooting the bride and groom during a ceremony at their home.
   
   
2. You're an equestrian photographer on a "farm call" to photograph a horse at the owner's stable.
   
   
3. You're an art photographer and you're at an artist's studio to shoot a few pictures of his latest sculpture that he will send to his agent, who will then send them to magazines for a press release.
   
   
4. You're a portrait photographer and own a studio at the local mall. A client comes in to have pictures taken of him so he can distribute them to potential modeling agencies.
   
   
5. You're a press photographer, and develop a special relationship with a congressional candidate, who invites you to the family estate to photograph the clan for a memoir they intend to publish about the personal tolls that political life can have on a family.

Though there are contracts associated with each of these assignments, none of them include model releases by the subject for the photographer. Here's the question: can you license any of these photos for EDITORIAL use to a newspaper who is doing a story on the individual who is the subject of any of these given photos?

Most people would say no, and would guess that it's because of the lack of model releases. True, but the more important (and harder) question to ask is: why? After all, as you may know, model releases aren't usually necessary for editorial uses of photos, and you can't get more "editorial" than a newspaper story. So, what makes these cases above so different that model releases would be required for an editorial publication?

Here's where almost everyone will now guess wrong: they'll say that the photography was done on private property (or "of" private property).

That's not it.

What matters are the laws governing "personal privacy," and the fact that the property itself may be private and/or personal is actually not a factor here. Privacy laws protect people's rights in ways that transcend issues of "property" entirely. This may include conditions where 1) people waive their privacy rights even on their own property, and 2) people preserve their privacy rights on public property. So, the first thing you need to do is dispense with the notion that "property" has anything to do with privacy--at least, insofar as the publication of photos in editorial contexts is concerned.

The other thing you need to immediately forget are the high-profile cases concerning "violations of privacy," such as breaking and entering, intruding on personal space, planting hidden cameras in people's homes or in the workplace, or using brute force methods to get pictures. In short, stop thinking about just those cases that involve "aggression." While such aggressive techniques do violate privacy laws, these are obvious. What's more interesting--and which is far more common--is where photographers can violate privacy laws in very passive ways, even including situations where the photographer has written permission from the photo subject to photograph him. The cases listed at the top of this article are perfect examples.

Here's how you need to think about privacy laws from the top down:

Does there exist "a reasonable expectation that one could be photographed by the general public without the person's knowledge"?

What is the relationship between the photographer and the subject?

How much "orchestration" was necessary in order to capture the photo?

Each of these requires discussion, so let's address them individually. After that, I'll tie them all together to present a real-world scenario that everyone can identify with.

The first item is the most important because it lies at that pivotal dividing line between personal rights and that of the First Amendment (which affects freedom of the press). That dividing line means that people are entitled to "privacy" when they're in certain conditions, but they waive their rights in other conditions. The easy cases we all know about are: when you are in public, you can reasonably expect that you could be photographed without your knowledge. When at home, you can expect that your privacy is protected from such photography. Easy enough, but it gets complicated when you introduce other conditions.

For example, each item in the following list is a private property: an amusement park, a bar, a zoo, your swimming club, your golf course, your church. In each of these cases, the general public can come, and they often have cameras with them. Hence, everyone on the premises has waived certain rights of privacy insofar as their photos being taken by others, even though the property is "private." Don't necessarily take this as a universal truth though; there could be specific venues where photography is prohibited, thereby changing one's "expectations" of being photographed. Still, once again, don't take that as a given either. Just because a venue may say there are prohibitions, doesn't necessarily mean the expectation goes away. It's not enough to just see signs that say "no photography," or a warning on the back of a ticket stub that says you can't take pictures. And you certainly never rely on your opinion that people shouldn't be taking pictures. If the rule is not enforced, and you still see people shooting away without intervention, the expectation of being photographed still exists.

True, one could argue this case to a judge, and one may get some leeway because of this, but the judge will weigh other factors as well. He's going to be as objective as possible by looking at the behaviors of others in the environment and assessing what's actually going on. If many people are conspicuously taking pictures, whether they're allowed to or not, this will be considered. On the other hand, if security personnel are stopping people from taking pictures, then it can be argued that the expectation of being photographed is reduced. Between these two extremes lies the reality of the situation.

Consider a celebrity who argues that he only showed up at the event because he was promised that no photos would be taken. If it was clear that the ban wasn't enforced, and there were people taking pictures everywhere, and he had an opportunity to leave before being photographed, he may have a hard time convincing the judge that his privacy was violated by the photographers. Separately, he may have a claim against the venue for failing to enforce the photo ban, but the judge will consider that the conditions at the event were obvious and the celebrity had an opportunity to leave. By staying anyway, he subjected himself to a "reasonable expectation that he would be photographed." If you're one of the lucky photographers that got a photo of him, and that photo ended up in the newspaper, you haven't violated his privacy. That's editorial publication, and the photo doesn't need a release.

So, the fact that you're on private property is inconsequential. Indeed, there are cases where you can be in a public place and still have your privacy rights protected. How? This gets into the second point above: what is the relationship between the photographer and the subject?

To illustrate, consider the scenarios listed at the top of this article. In each case, the people being photographed asked the photographer to do so because they wanted the pictures for themselves. Even if they are for publication in the general press, that part is irrelevant insofar as privacy rights are concerned. It is the direct invitation to the photographer by the subject to shoot a specific thing which implies that the subject has not waived his privacy rights. Thus, the photographer's use of any of those photos requires consent from the subject (in the form of a model release). Yes, including for editorial publication.

Note that this does not affect copyright status--the subject is not suddenly the owner of the photos, nor does the relationship imply a work-for-hire scenario. It's simply a matter of privacy, and the scenario involved means that that no one has waived any rights.

Once again, note that "private property" has nothing to do with anything here. Whether the photo session was on public or private property, the photos taken by the photographer in question are restricted due to the circumstances involved.

Back to the "relationship" factor between the photographer and the subject: The alert reader will note that, if the photo session is on public land, one cannot necessarily assert privacy rights to others. Not every person with a camera is "the photographer" with whom the subject has a relationship. Consider a couple that hires a wedding photographer to shoot their ceremony, and that ceremony happens to be in a public park. Only the hired photographer is bound by the agreement made by the couple, so the photographer has no rights to license those photos. However, because the ceremony is in the public, other people who have cameras, such others at the wedding or uninvited bystanders, can each shoot all they like, and license those photos to others for editorial publication or any other uses that do not require model releases.

The special relationship between the photographer and the person that hired him has been upheld in court cases, especially those involving weddings. Judges' rulings have maintained that people's expectations of the service that the photographer is providing is one in which they can reasonably assume that these photos are for their personal uses.

To illustrate the strength of this relationship's effect on the need for a release, consider the scenarios I described involving an artist and his sculpture, or the owner's horse. Normally, only photos of people require model releases because animals and objects don't have privacy or publicity rights. But, there still may be restrictions on the use of these images because of the privacy laws involved and the "relationship between the owner and the photographer." The fact that the photographer was invited for the purpose of providing a service puts limitations on all the photos taken during the session.

What's further interesting is that the strength of these cases have been decided on the weight of another factor involved, which leads us to the third item on the list: to what degree was a photo "orchestrated."

When it comes to orchestration, the idea is that the more involved the photographer and subject are in coordinating how photos are taken, the more "invasive" the photographer is on the privacy rights of the subject. Remember the first rule, where a subject waives his rights of privacy if he can be photographed without his knowledge? Clearly, if the person is unaware he's being photographed, his actions are of on his own free will, and anyone that witnesses such acts in a public space is entitled to publish photos of them in an editorial context. But, if the subject is directed in a controlled situation, he is no longer acting on his own accord--he's doing what he's told to do--so photos of him may not necessarily be representative of him. Even if he's agreeing to be photographed, he still maintains some rights of privacy.

Now, understand that this is purely academic right now, and real-world situations may present very gray areas. For example, just because you ask someone to pose for a picture doesn't necessarily mean that they are now "being directed." And though you may still be safe if you ask them to wave, or stand next to a building, or even spend considerable time with them in a casual or candid manner, you can see that each of these progressive acts leads you closer to that gray area; the point at which you cross into the "privacy" zone is rarely clear and has to be evaluated on a case-by-case basis.

So now, let's pull together all three of the checklist items, and consider a case that involves them all: you're hired by a restaurant to photograph the dining room with people eating. Here's a complicated situation because we have many people involved, a variety of conditions, and possibly some "direction" by you to the patrons. So, let's piece it all together.

First, unlike the restaurant owner, the diners have no relationship to you at all, so the first question remains the most important: "is there a reasonable expectation that they could be photographed without their knowledge?" As discussed before, one has to do an on-site assessment: Are others taking pictures? Are you conspicuous with your camera? Has the restaurant owner told the clients (verbally or with a sign) that they might be photographed? Even subtle things like whether it's a quiet, intimate, "private" sort of venue, or whether it's a loud arena-type of pizza parlor, can imply a different perception on whether there's a "reasonable expectation of being photographed."

Assuming there is such an expectation, then the clients have waived their privacy rights, and you can license the photos (without releases) to a client who may publish them in an editorial context.

Next is the question of "orchestration." Are you simply photographing the room, or are you having people pose for you? Is it a simple shot, or are you directing a man and a woman (who don't know each other) to clink their glasses together and gaze into the camera? Are you adjusting the smile? Fixing hair? The more you get into these actions, the more likely it is that your orchestration begins to threaten their rights of privacy if these photos were published without a release, even in editorial contexts. You haven't violated anything by taking pictures; it's the publication of them (or the licensing of them to someone else who can publish them) that could be.

Assuming there is no orchestration, and that people were aware that they were being photographed, you can license these photos for editorial purposes to any buyer.

Oh, Wait! Had you forgotten that it was the restaurant owner that hired you? He's the one that wants to use the photos. Is he aware of all these issues? Probably not at all. So, as the hired photographer, you have to be aware of them so you don't get your client into trouble when he publishes the pictures.

You might think that it'd be easier if you just had everyone sign releases. Well, again, in the real-world, that could cause more trouble than it's worth. Diners don't want to be bothered with that as a group, so you would really only want to do that with people with whom you've given direction, or who may appear to be "advocates or sponsors" of the restaurant. Why's that? Because the owner probably wants to use these photos for promotional purposes, and for that, he would need model releases from anyone that could appear to be "advocates or sponsors." Note that model releases are not required from people who are simply part of a scene, even if they are recognizable, and even if the use is commercial (advertising or brochures). What triggers the need for a release in a commercial use is if the people appear to be "advocates or sponsors." So, if one of the pictures you took is of a couple clinking their glasses looking directly into the lens, and the picture is clearly on them, they would have to sign a release for the restaurant to use their photos. On the other hand, a wide-shot photo of the entire room with everyone eating at their tables (not looking at the camera), none of these people would need to sign a release. This applies to both the commercial and editorial uses by either you or the restaurant owner.

Got all that? Well, we're not quite done yet. There's one more important factor in the "relationship" section that hasn't yet been brought up: one in which the photographer asks the subject to participate in a photo shoot, rather than the other way around. In each of the scenarios discussed so far, the subject asked the photographer to be photographed. But, what if you're the one to call the farm and ask owner if you can bring a group of photographers (perhaps students) to do a photo session of the owner and his horses? This is a subtle but important difference that could change the entire landscape of whether releases would be required for editorial uses.

Another way to look at this is to ask, "what is the purpose of those photos?" If the subject hired the photographer, he knows what the photos are for, and his expectations about how they are used have been set. If the pictures were to later show up in the paper, it would be a dramatic difference to his expectations than if you asked the subject to photograph him. Here, his expectations of the photos are simply undefined, and this subtle difference weighs very strongly insofar as determining whether his privacy rights have been violated. For instance, he'd have an easier case to make if he could say to the judge, "I hired the guy to photograph me and my horses so I could have prints--imagine my surprise when they showed up in the paper." This is a stronger case than if he said, "These guys asked if they could take pictures of me, and a few weeks later, there I am in the paper." Here, the difference in the preconceived expectations carries weight as to whether the farmer's personal privacy has been violated.

Again, individual cass can be argued, but I illustrate the difference here because one scenario is a stronger case than the other. And when you factor in other instance-specific details, the pendulum has a tendency to swing in unexpected directions quite easily.

And finally...

You may recall that in the beginning of this article, I said there was a contract between the parties in each assignment. But I didn't say what was in those contracts so we could focus on understanding the concepts involved. Now that that's done, we can go back and revisit the contracts and see if the terms alter anything we've assumed.

First and foremost, if the contract is "work-for-hire", then the photos aren't even yours in the first place. You have to hand them over to whoever hired you, and you're done. You have no rights to or legal access to those photos (unless, of course, the client chooses to let you have them). A work-for-hire contract has to actually use that phrase.

Assuming it is not a work-for-hire contract, the client's own use of the photos are limited to personal use only. I had mentioned in several of the examples that the clients were going to publish the photos in some form. Technically, because you own the copyright to the photos, the client cannot publish them at all without permission from you. Assuming that it was the client's intention to publish them, we can assume that the contract specifically stipulated the right to use the pictures for the stated uses. However, just because the client can use the pictures in the manner stated, it does not affect your use of the photos insofar as the model release requirements are concerned. That is, if you performed a portrait session with a client who had you sign a contract saying that he's going to provide these photos to a stock agency who will license them, he has the right to provide them to the agency because it was written into the contract. You don't, unless you have a model release from him. Otherwise, you've violated his privacy rights because he came to you to get his pictures taken.

And that brings us to the last point: while it's important to understand all these issues raised here, the best business decision you can make whenever any signed contracts are involved, is to include language that outlines the terms of a model release. That would make the entire discussion moot. And provided that the release language is broad, you could even license all the pictures discussed here for commercial uses. The one exception would be the restaurant scenario because other people (other than the owner) may be involved. The owner can't sign on behalf of clients, so those people would have to be dealt with individually.

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.)