 Pamela K |
People in Photographs: Legal Question If a person in your photograph is not recognizable (e.g. if you just have the back of their head), do you have to have written permission to use their picture or is that only for recognizable faces? Pam
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Diane Dupuis |
Hi Pam. I believe if they are not recognizable you don't need a release. But I look forward to an expert answering your question.
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Pamela K |
Thanks for taking the time to respond. I appreciate it. (It keeps the question near the top, too....) That's what I thought, but it'll be good to hear from someone who does people pictures more often than me.... Thanks again.
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Damian P. Gadal |
I agree, very useful information.
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Michael Brown |
If I can remember correctly, the answer is no. Check in here for some further info on the subject. http://photography.about.com/gi/dynamic/offsite.htm?site=http%3A%2F%2Fwww.simslaw.com%2Fmodel%2Fmodel_releases.htm Mike
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Pamela K |
Thanks for the great Web site. It's a little hard to wade through, but at one point he does talk about a person being recognizable. Most of the stuff just uses the term "likeness," which seems kind of vague to me. I think I'd still like an answer from someone with a little more definitive answer.
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Rob Friedman |
I'm actually an attorney (though I usually try hard to hide that fact), and I can tell you the law is very confusing/unsettled on this. See: http://www.publaw.com/photo.html Generally, if the photo is for commercial use (stock photography, etc.) you'll need a release for photos that include a person's likeness (from what I've seen this usually means face). If it is for private use (not for sale or promotion) and taken on public property, you generally can use the photo without a release. After all, anyone could have seen that person anyway, since he or she was on public property. He or she would lose any "reasonable expectation" of privacy. Other laws govern taking photos on private property. My thought is that if it's just the back of someone's head, taken in a public place, you're almost certainly OK to use it for anything. That being said, please don't take this as formal legal advice (my official "legal disclaimer"). :-)
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Pamela K |
Thanks so much for your detailed response. I did get verbal permission from the person to use her photo in another contest and it doesn't show her face at all. Pam
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Rob Friedman |
No problem, Pam - glad it was helpful! Here's another article. It may make your head spin, but it contains very good analysis (you can see how murky and fact-intensive the law is): Take Care!
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Bob Cammarata |
I guess this is why so many people are shooting flowers and landscapes. :-) All joking aside, whenever I photograph a person I don't know, I will make it a point to show them from behind (translation ... "un-recognizable"), or at a distance, so that they are part of the landscape and not the main focus of attention. If they ARE the main point of interest or can be recognized, I always get their permission to photograph them. I tell them of the intended use ("possible publication"), and I give them one of my business cards. As far as I know, this "verbal agreement" is OK for use in an editorial context (newspapers, magazine articles, and the like), as long as it's done tastefully. For commercial use, such as advertising or trying to sell their image for profit, a written release would be required.
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Pamela K |
Thanks so much for all of your input. This really helps. (And it is also why I usually only photograph non-human animals...)
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BetterPhoto Member |
The issue of photo releases is often misunderstood. But the rule should be "get them" ... period. As a veteran of 25 years stock shooting and representation by 10 different agencies during that time, I have personally been "accused" of photographing someone and not obtaining a release. Although I was able to prove that I had a release for the person who was in the photograph, I had to spend considerable time to prove that the person in the photo was not my accuser. That is where we are in the state of this issue. If you are accused of not having a release, the burden is on you to prove it is not the accuser in the photograph, rather than they having to prove it is themselves. Over the years, I have had several photographer/friends pay out thousands to people they had photographed, but failed to get a release, as well as to attorneys to battle these claims. I have seen others being sued when they had a release, because the model didn't like how the photo was used. Whether the photographer won or lost, it costs plenty in legal fees. It is easier to pull a release and prove immediately who is in the photo and that the image is released. It is true that editorial photos often do not need to be released but that does not mean that you are protected from litigation. Numerous photographers have paid out here as well. A verbal OK is not sufficient either; all they have to do is change their mind. If they saw the photo published once, then published again, they are thinking money and the fact they didn't get paid and you did. If you want to be represented by an agency they will require releases ... period! They deal with legitimate and false claims every year, and most, if not all, will not accept any image without a release, no matter how great the shot. And your agency contract specifically states that you agree to provide a release for any image on file at the agency, upon request ... and that you will be responsible and hold agency harmless for any and all claims arising from model release issues. AND that you will reimburse agency for all cost, losses, and damage awards they incur and related to a model release issue for one of your images. At Fogstock, we require them and ask the photographer to provide them within 48 hours of our request. Many ad agencies, designers, etc., who buy stock will often ask for the release in advance of purchasing the rights to use the image. They don't want any hassles either. I not only get a release from everybody, but I also have a "Photo-shoot agreement" that says they will receive no more compensation that what we agree to up front, and I put it in writing. I have also asked many strangers if I could photograph them. Basically I say: "Hi, I am a photographer and am shooting for blah blah blah. I am trying to get a story in a magazine (or whatever) and when I noticed that you were doing blah blah blah, I thought that would make a great shot. But I cannot take your picture without your permission, and the magazine won't publish the photo without your written permission. If you will sign my release, I will gladly send you an 8x10 to show you how great you look and how great the photo came out. Here is my business card so you can contact me if you wanted more prints." I have only been turned down once.
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Pamela K |
Thanks for providing such a comprehensive answer and a way to approach people with a release. I really appreciate the feedback. Pam
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
The fact that stock agencies won't take anything without a release doesn't stop with people familiar enough to just walk up to and start talking to them. Whether on the street or down in the Amazon with indigenous people who've never needed to be able to sign their name on anything, and don't have a concept of legalities or why you're down there, a release will be required. You'd have to go as far as having an interpreter explain to them you need their permission to show the picture back home, and have them make a mark like an X and have a witness. Would somebody like that - halfway across the world - in that remote a place, be able to track you down and put together a lawsuit? No, but an agency still would not accept the photos without it.
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Rob Friedman |
Legally, any release wouldn't be enforceable if the person can't understand the release. Bottom line is that a written release is great evidence that the person intended to "OK" the use of the photo, but a release still can be challenged in a variety of ways (fraud, undue influence, no consideration, didn't understand the terms, etc.). However, an agency would be better protected by relying in good faith on a written release, which is why they all would require them. Additionally, because the agency asks you to hold them harmless and indemnify them from any damages, as Charlie mentioned, the risk of the lawsuit is mostly thrown onto the photographer (which makes some sense since the photographer was far more intimately involved with obtaining the release than the agency, and should bear the risk if the release was obtained fraudulently or incorrectly). Remember that mostly though, for someone to sue, they'd have to shell out a bunch of $ in attorney's fees. This is pretty unlikely for most photos since the likelihood of getting any substantial damages is very very small (risk/reward). If the photo is wildly successful or it is used in a way that disparages the person, that's a different matter (more potential damages, making it more likely there would be a lawsuit). Charlie, of course, is 100-percent correct that the best protection, and safest course, is to get a model release ... especially if you even remotely intend that the photo will be used commercially or will potentially be widely distributed. And I really like his ideas for how to get the release executed. Great ideas!
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
True about the legal enforcement. But I was trying to make the point that there isn't anywhere nowadays that you can take a picture of somebody, that an agency will accept without releases, regardless of how miniscule the chances of there being a problem from that individual.
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Rob Friedman |
Yep, you're totally right. I wasn't disagreeing. It also makes sense for the agency to have that policy. Otherwise, the agency would have to make risk/reward determinations on a case-by-case basis, which for hundreds of thousands/millions of photos would be nearly impossible (especially since the agency didn't have direct contact with the models or have firsthand knowledge of the circumstances around the photo).
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Mil |
My grandmother is the older lady in the background of the famous WW2 picture of the sailor kissing the nurse in Times Square, N.Y. Does this mean that she should have gotten compensation for being so visible in that famous photo? (She is now deseased, but I'm curious.) Thanks
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Rob Friedman |
I would say "no" off the top of my head. It was a public place (no expectation of privacy), she was part of the crowd (not the center of attention), and it was a news/editorial photo, not a commercial shoot. That being said, people have sued over stupider things in the U.S., and won. :)
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Pamela K |
Thanks for all your comments/discussion. I really appreciate the feedback. Pam
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Randy Kinney |
Dislaimer: I am not a lawyer, nor do I play one on TV. :) Generally, no. Sometimes it just isn't practical and/or possible. Having said that, it is always best to obtain a release if possible. Below is an excellent link to a wealth of information on copyright. I highly recommend an in-depth reading of the material. http://www.editorialphoto.com/copyright/index.html
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Pamela K |
Thanks for the site. I'll definitely look it over. Pam
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