It is a common discussion among photographers that signed model releases are not required for every usage.
The discussion usually revolves around the notion that releases are required for commercial use and not for editorial.
Generally speaking, it’s true that you do not always need a release for editorial usage, but it is also a fact that some photographers have been sued and LOST when their unreleased images were used editorially.
There is no absolute rule! However, here are some other considerations.
In this country, anyone can sue anybody for any reason on any day!
With commercial usage there is no question about releases, but with editorial uses the answer may be a little more vague.
Some magazines and newspapers do occasionally ask for releases but it is rare. Sometimes the subject in the photograph drives the decision as the whether a release is requested or not. These images are sometimes of normal subject but the usage is controversial.
I was once asked if a model released image I had of a woman smiling for the camera could be used in advertisement for a drug that was developed for Aids patients. I contacted the model who obviously said “no way.” But I had a release and could have legally licensed it but might have ended up in court anyway.
It is also pretty common for large companies or ad agencies looking for stock images to use in a campaign or publishing project, to refuse to consider unreleased images. By using any unreleased images they assume all liability and many are not willing to do that.
Stock agencies, knowing full well the repercussions often refuse to represent unreleased images as well. It is widely reported that one of the ‘big two’ agencies, back in the 90’s, paid out $1,000,000 to the parents of a child for the commercial use of the unreleased image containing their child.
Some stock agencies want copies of releases for every image submitted.
Many photographers view releases as a nuisance or are afraid to ask the subject for one. Others are comfortable with the idea that they will just sell the images editorially.
But why settle for the lower paying editorial markets when a released image will command more in the commercial markets? Doesn’t it make sense to get that release right up front if you can?
If you can’t see the person no release is required?
There is also the idea that if the subjects are not recognizable then no release is required. Not always true!
In the 1990’s, I was threatened with a lawsuit by someone claiming that I had photographed them without permission and they wanted compensation. The picture was a close-up of a mouth and phone taken to represent someone talking on the phone. This person’s claim was that the mouth was there and that I had defamed them and caused them embarrassment.
I wrote back that it was not them. They replied and said it was them and gave me 30 days to settle. I dug through the files and found an image from the same shoot that showed the whole head; the mouth, phone, eyes, ears, and hair and sent a print to them. I never heard back.
Anybody can come after you. Anybody can claim that they are in your picture. You have to prove it is not them or spend money fighting them.
The laws say that individuals have a right to privacy and it also says that creators have the right to the freedom of expression as contained in the first amendment. The problem for photographers is that you don’t want a judge deciding whose rights supersede the others in the case of your unreleased image being used.
Obtaining model releases is often easy but forsaken for fear of asking or laziness. And if it is easy to ask then do it. If the person says no then what are you out? The potential sale of images that you now clearly know, you needed releases in order to license them in the first place.
Lack of a model release can without a doubt limit the earning potential of some otherwise very good selling images. Just ask!
Coming up: How to ask for a model release from a stranger?
Have you had any model release issues or problems? Leave a comment.
Good Books on the Subject: