Question about copyright, models and the law...

Started Jun 15, 2012 | Discussions thread
William Porter
William Porter Senior Member • Posts: 1,730
Re: Question about copyright, models and the law...

Have you heard about those big lawsuits against Facebook, Google and other photo hosting giants brought by folks whose images were published without their consent and without a release? Me neither.

Even so, this is a hot-button subject among photographers, especially among the enthusiast/serious amateur class.

For one thing, there's a lot of confusion about different legal issues, like the difference between taking photographs that are against the rules or perhaps even against the law (say, shooting inside a photo exhibit at a museum, where you might be violating posted museum rules AND violating a photographer's copyright), and taking photographs of people who do not want their photo taken and might be able go give you a hard time about it (say, photographing the police struggling with a suspect), the question of when you may publish a photo of someone without their written permission, the distinct but vaguely related legal concepts associated with the model release, not to mention the whole issue of copyright.

Anyway, there's a ton of good info available on all these subjects, in books for photographers and on the Internet. If you're in the USA, here's a pretty good place to start on the matter of model releases.

Worth reading two or three times, slowly, so both the big ideas and the little qualifying ideas sink in. At the end of the article there's a link to a book Heller's written on the topic.

Here's a quick executive summary of Heller's piece with some of my own experience added:

  1. Of course it's always a good idea to be courteous — and to use common sense.

  2. And if you really CAN get a model release from everybody you photograph, well, great.

  3. If you are doing the kind of photography where the potential for legal problems is pretty obvious — say, shooting nudes — then it's also pretty obvious that you should get releases.

  4. But if you're just getting started with photography, and especially if you're photographing friends and family and the occasional private client, feel free to shoot without getting a release and don't lose sleep over it. Feel free to post photos on your Web site. Just don't forget #1.

  5. And when the day comes that you truly need releases from your models, you'll know it.

Actually Heller makes the point that you may know that day even before it comes, because some publishers will ask for a release that isn't really required, just to cover their own rear. Anyway, you need a release when somebody starts asking you for the release.

If you're worried about a fantasy scenario where you have a photo potentially worth a million dollars that you can't sell because you didn't get a release, then you don't just need to get a release. You need to get a life.

My wife is a lawyer. If you, as a stranger, were to ask my wife a legal question of the form, "Should I do X?", she's likely to feel bound to give you a theoretical answer, like "If X is the safe thing to do, then do X." That's the five minute consult.

If you get the fifteen minute consult, she'll probably ask you, "How much trouble is it to do X?" And she'll also want to consider the risks involved in NOT doing X.

If the risks are really serious and the effort involved in avoiding the risk is slight, then the answer remains, do X. That's Practical Lawyering 101. You don't necessarily do X because it's legally required but rather because it's easy and the safe thing to do.

But getting a model release before you press the shutter every time is not so easy. It may be way more trouble than it's worth, not always, of course, but much of the time.

If I asked my wife to sign a model release she'd think I'd lost my mind. Although she is, like most lawyers, basically pretty paranoid, she's been practicing for a long time and knows the difference between an imaginary problem and a real one.


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