Dabbling in Model Releases
I'm hoping this quick breakdown can help anyone who dabbles in photography but has no idea where to start with releases (like me). If you'd like to learn more, check out the links at the end.
A few days ago, a friend asked if they could use some of the photos I had taken of their comedy show on their new website. My first thought was “Of course!” and then I wondered, “Is it okay to share images of these people without their permission?”
So, I started googling...
Can someone explain this to me?
At first, everything I found said you need a model release, like always. The answer seemed to be, "Just get a model release." Not sure if or even why you need one? Shut up and get a model release. You get the idea.
Finally, I landed on a set of articles by the photographer Dan Heller. These pieces are long, but more illuminating than anything else I read and are the basis of this breakdown. He actually wrote a book on the subject, Photographer's Guide to Model Releases.
Selling doesn't require a release
A release may be needed depending on how a photo is going to be used by its publisher. The act of shooting the photo and selling the photo doesn't require a release. The photographer can't assume responsibility for the buyer's publication of the photo.
So, why do photographers get releases?
Getting a release while shooting makes it easier to sell that photo later. It can save alot of work for the buyer/publisher when they would otherwise have to contact the subject and acquire a release for their specific purpose later.
If you get a release at the time you're taking the photo, you then "assign" the release to the buyer when they make a purchase.
Your risk is in saying too much
Here's where he gets into the kind of language you should avoid and what you can and should make clear to your buyer.
If the photographer asserts his opinion as to whether a release is (or is not) required for any given photo, he is putting himself into legal jeopardy if the publisher ends up taking his word for it and gets into trouble. This is true regardless of whether the photographer says "yes, you need a release," or "no, you don't need a release."
The best thing to do is say nothing. You can't (and shouldn't want to) know whether any given use would require a release; this is not your business to know. And by all means, never give the publisher reason to "rely" on your opinion. Chances are, you're wrong about whether a release is required for the buyer's use.
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If you say anything other than "I don't know" (to the question of whether a given use requires a release), you are rendering an opinion that the licensee can later use against you.
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So you state, "I make no representations as to whether any specific use of the image requires a release. You (the licensee) assume that responsibility. I can only say that I have (or don't have) a release that is transferable to you."
Sometimes getting a release isn't a good idea
Sometimes a boilerplate model release won't be specific enough to cover the purpose the publisher has in mind (something you have no control over anyways). Relying on the release you provided, they may blame you if they get into any hot water.
This can be avoided if you provide no release and the publisher must contact the subject for a model release written for the intended use of the photo.
Is it okay to show off your work?
In order to make a photo available to buyers, you have to show it, usually on your website. This is not a form of advertising, as once thought.
You need a release when the use of the photo implies that the subject is an advocate of something, your photography business for example.
Say you post some photos from your recent vacation. If you make it clear on your website that these are photos you shot on the street while traveling, no one is going to presume that anyone in your photos would "advocate" for you or your business. The people in the photos may not like it, but they don't need to give the okay for you to share the photos and they can't stop it, as long as advocacy isn't implied.
What's a photographer to do?
Be honest about whether or not you have a release, and also make clear that you make no claims as to whether your release or ANY release will be necessary for the specific use the publisher intends.
Getting releases when you can will make it easier to sell your photo, but don't think unreleased photos aren't worth taking or selling. There's a market for unreleased photos, provided the publisher's use doesn't require one, and you should never miss an opportunity to take a possibily amazing photo.