When it comes to the question of model releases, the simplest answer is this: no matter where a photograph is made, or who the subject might be, the photographer should have the subject sign a release when the use of the image will be commercial. News photographs, for instance, do not require the subject’s permission for publication. Neither do pictures sold as fine art, or photographs made and never published. But commercial use—such as advertising a product or marketing a business—is different.
We talk with a legal expert to find out when you need one, when you don’t, and how to tell the difference.
In the United States, every individual has the right to control their likeness for commercial purposes. Known as publicity rights or personality rights, this law applies to everyone, regardless of whether or not they are famous. It’s this right to protect the commercial use of one’s likeness from which the need for a model release arises.
In practice, a model release serves as a straightforward contract between photographer and subject indicating that the subject gives permission for their likeness to be used for commercial purposes—releasing the photographer from future liability. A model release can be written to cover a wide variety of uses or something very specific, though in general most releases are written very broadly by default.
It’s important to remember, though, that there’s no such thing as a sure thing. In the U.S. practically anyone can sue anyone for anything. A model release offers protection, it’s not a guarantee of prevention.
“It's risk management essentially,” says intellectual property attorney Sekou Campbell. “I think that's a great way to look at any agreement.”
Campbell, a former artist, works with visual artists to navigate the ever-changing issues at the intersection of art and technology.
“What's difficult is that the world and the law changes over time,” he says, “but you're not going to sign a new agreement every six months or year, particularly for a model release. So for that reason, my mantra is that a contract is never perfect. It never covers every situation. And we often see unique circumstances come up and that's usually what winds up in court because there was some unforeseen thing that happened that no one really could have predicted, or there was a major change in the law.”
“No agreement is perfect,” Campbell adds, “and for that reason I would say, to the extent that one uses a form, you should always revisit it every year so that you're not holding onto stuff that's really old and antiquated and doesn't apply to your work anymore. And to make sure that on a going forward basis, that the contract is sort of timely and useful still, because things change.”
Public Space Vs. Private Property
It is important to remember that a model release ultimately provides protection based on how an image is used. Whether or not a picture may be made in the first place depends largely on location.
In a public space such as a suburban park or downtown sidewalk, photographers are largely free to point their cameras at whatever they see fit. Whether it’s an old man riding his bike or a young woman walking her dog, American courts largely agree that photographers in public may shoot with practical impunity because in public there is no reasonable expectation of privacy. The bar for privacy is lower in public.
“Even when the bar is lowered,” Campbell says, “if I took a photograph of Beyoncé in public and then used it to sell a product, a commercial use, that still would be a violation of her right of publicity, not necessarily her right of privacy.”
Just because a photographer is on a public sidewalk doesn’t mean he’s free to use a supertelephoto zoom and a stepladder to get a glimpse inside the open window of a neighbor’s home, because the right to privacy remains intact. This, in fact, is how paparazzi sometimes get sued—going to extreme means to photograph celebrities in their homes where any reasonable person would agree even the ultra famous retain the right to privacy.
Other laws do prohibit photographers from taking photos in areas that courts may deem to be reasonably “public, and that’s when the public space is also private property—like a restaurant, for instance. It’s hard to argue that an open restaurant filled with dozens of patrons isn’t a public place, but it’s still privately owned. And that owner is always within their rights to ask anyone, photographer or not, to vacate the premises. It may be legal to point a camera at someone seated in a restaurant, but it’s also legal for the restaurateur to ask you to leave—and failure to do so is trespassing.
Just because it’s legal doesn’t mean it’s right—or advisable.
“There's a question of right and wrong,” Campbell says, “versus illegal or legal. Something may be legal but wrong or illegal but right. What I often advise artists is ‘don't just be legal, make sure you don't get sued.’ Which are two different things. If you're operating in a gray area, you may get sued even if ultimately you're proven to be right, if you're proven to have abided by the law.”
“This is probably why many lawyers say just always get a model release,” he continues. “Because that then at least keeps you out of court for the most part because people have signed a release. But there are circumstances where you don't have to do that and you would have the same likelihood of staying out of court. It's not about being lawful, it's also about just not being sued.”
Another challenging wrinkle is when photographing intellectual property. This could be an identifiable architectural feature in a public space (the interior of the Guggenheim, for instance) or a fashion designer’s distinctive silhouettes.
“One of the things that photographers need to be careful of,” Campbell explains, “is what their models are wearing or what people are wearing in public. What other things are in the background? If you're taking a picture and a prominent piece of artwork is in the background, that could expose you to liability outside of just the models themselves. Even the models, if they're wearing a unique design that they don't own, you just want to be careful about those things. Usually a release will cover that, with a warranty that says ‘I own or have a right to use everything that I have on.’”
In terms of architecture, Campbell says that buildings are generally included in a safe harbor that means they may be included in commercial photography when they are publicly visible. Interiors of those same buildings, however, are protected.
“The rule of thumb for that would be if it's visible to the public in terms of physical space,” he says, “90% of the time you're probably okay. And if it's not, then you want to go ahead and get that property release.”
A property release applies to private property in much the same way a model release applies to an individual. If a property owner’s home is the focus of a photograph, for instance, it would be advisable for the photographer to secure a property release before that image is used for, say, a real estate brochure or landscaping advertisement.
Exchange Of Value
Most model releases begin with a variation on a phrase that outlines some form of value provided to the subject. What it means in practice, judges have ruled, is that it’s not enough for someone to sign away their publicity rights for free – they need to receive actual value. After photographers began losing in court due to this oversight, they thought of a workaround: pay everyone a buck. Soon photographers began handing out dollar bills in exchange for model release signatures. “There’s monetary value received,” they argued. And while the thought might be right, the courts didn’t see it as equitable.
So best practice is to be sure you’re actually offering your subject a fair exchange of value. This could be cash, or it might be prints and image files for use in comp cards and modeling headshots, but some reasonable value must be provided. Without it, photographers risk owing subjects serious payouts after judges tell them their arrangement was invalid from the start—even though the photographer enters the courtroom with a signed release in hand.
“What you're talking about is consideration,” Campbell explains. “That's the legal term. It's bigger than just money. It could be money, it could be that you have to give more than de minimis or token consideration, but you also could, for example, give rights. You could say, ‘I will allow you to use this photo in your portfolio.’ That's consideration. You're exchanging rights. And that's totally fine, because a judge would have to weigh that and there's no real tangible, strong way to do that. So of course we generally just say, well, the parties agreed to it, so it must be fair.’ There should be some consideration. That’s what makes it enforceable.”
Another factor photographers should consider is the nature of the usage. Just because the subject of a picture has signed a broad release doesn’t mean the image can be used for anything and everything. Subjects still have the right not to be portrayed in “false light.” And that means sensitive topics should be explicitly addressed in agreements.
“Let's say you're taking a photograph of a man in a suit,” Campbell says, “a power suit. And the scope of the agreement you have with that person is that this is going to be a fashion shoot. And then you turn around and put it on a magazine that says 'Is this the face of Me Too?' You'd get in trouble for that, even with a model release. It's not just a commercial use, it's also the expectations of the parties involved. So that would lead to what's called a false light claim, which is in the defamation realm.”
“Take extra precaution when you're dealing with those kinds of subjects,” he continues. “It’s common sense. Anything that you think, ‘If this were me and everyone knew this about me, even if it's fictional…’ If it's a sensitive topic you want to make sure that your models are aware of that. Being clear and upfront about what the expectations are for the uses that you plan on and letting them know that it may change. If it's a sensitive topic, you definitely want to be explicit about that.”
Managing expectations is a fundamental part of working with model releases. It’s in how they are worded as well as how they are presented to the subject. While it’s a good idea to work with a local attorney to develop an effective release, it needn’t be long and laborious and filled with legalese.
“We're talking about managing the risks,” Campbell says. “There's no cure all, there's no agreement out there, no matter how broad, that will completely protect you from any eventuality. So what's most important and what the fundament of contract law is, is that the parties' expectations are met. So talking to the subject, to models, making sure that they're aware of everything that you're doing and being very clear and honest about what your plans are, and that they may change, and then having a very digestible, readable document to me is more important than going through every possible iteration of use that could possibly be out there.”
That said, a short and sweet broad release may work fine for many circumstances, consider writing a more elaborate agreement when the job calls for it.
“You can meter it against the size of the project,” Campbell says. “If it's a $100,000 massive project, then you do want to have a little more detail because there's more money at stake and it's going to be this wide release globally, all that stuff. You want to pay more attention. Get more details, have a more complex agreement if the project is more complex, if it's bigger. If you're doing a shoot for $200 it doesn't make sense to spend two hours signing an agreement.”
Is the subject identifiable? If not, no release is required. But if the subject would be able to recognize himself in the picture—perhaps by tattoo, clothing or context, even if his face is somehow obscured—a signed model release would be necessary for a commercial use.
It’s good practice to spell out on the release exactly what consideration was provided—be it monetary, usage rights or otherwise.
If you can’t find it it’s useless, so be sure to keep good records and develop a filing system that ensures you can find the release when you need it. (When submitting to a stock agency at a later date, for instance.) Consider digitizing the release or photographing the model with it, then storing it in the same folder as the images to which it pertains.
Whether a shoot is stills or video doesn’t necessarily change the type of release used, it may require more encompassing language. Also, a video production requires a signed release from voice talent that appears in the video, even if they aren’t visually depicted.
What about kids? Just like with any contract, anyone under 18 years of age requires a signature by a parent or guardian for the release to be valid.
It’s best to include not only the model’s signature, but also his printed name, address and contact information, as well as date of birth and date of the signature.
Many release templates include a space for a witness to sign and date as well. This witness should be neither the photographer, the subject, or if the subject is under 18 the subject’s parent or guardian. The witness should be over the age of 18. Their signature offers reassurance to a prospective buyer who may feel the release is more secure by virtue of being witnessed by a third party.
What about using an image in a photographic portfolio? And what if that portfolio is published on the photographer’s website? In both cases, the use does not typically require a model release.
Remember, it’s preferable to get a release you don’t need than to miss getting a release that eventually turns out to have been necessary.
Where To Get A Good Release
If you’re going to the trouble of using a model release, be sure to use one that was thoughtfully written by people who know what they’re doing. An intellectual property attorney in your state is probably the best way to ensure your releases meet your exact needs. Short of that, however, there are a few resources that offer well-crafted and time-tested releases.
APA – The American Photographic Artists (APA) business manual PDF includes a sample model release available for members and non-members alike. Download from APA
ASMP – The American Society of Media Photographers (ASMP) offers releases created by intellectual property attorney Drew Epstein, a specialist in copyright, trademark, photography and art law. Download from ASMP
GETTY – This large stock photography agency built its business model in part based on quality releases. Download from Getty
Easy Release – What’s better than carrying a stack of printed model releases on every shoot? Using a smartphone release app, such as Easy Release.
Intellectual property attorney Sekou Campbell is a partner at Culhane Meadows in Philadelphia. His practice focuses on the intersection of technology and the arts. He also does work for the Philadelphia Volunteer Lawyers for the Arts, where he was the 2017 Volunteer of the Year. Learn more about Mr. Campbell.
About the author:
William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.