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Category: New Questions

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Photography Question 
Jane Holestine
BetterPhoto Member
Contact Jane
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member since: 7/26/2005
 

Do I Need a Model Release?


Do I need a model release if the picture is backlit and the person only appears in shadow? It is a a partial profile shot.

9/17/2005 5:34:35 AM

 
Carolyn  M. Fletcher
BetterPhoto Member
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PickYourShots.com

member since: 10/6/2001
  Everything I've seen says the person has to be recognizable for you to need a release.

9/17/2005 6:09:07 AM

 

BetterPhoto Member
  Jane,
The issue of photo releases is often misunderstood. But the rule should be "get them" ... period. As a veteran of 30 years stock shooting, owning two photo agencies myself, 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 a stock 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. No matter whether it is a silhouette, and hand or foot, they want a release. 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 the agency harmless for any and all claims arising from model release issues. AND that you will reimburse the agency for all costs, 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.

Unfortunately, our legal system allows anybody to sue anybody for any reason, so the better you protect yourself, the safer you will be.

9/17/2005 6:37:40 AM

 
Jane Holestine
BetterPhoto Member
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member since: 7/26/2005
  Thank you, Carolyn and Charlie, for your answers. This was a shot I took at a wedding reception, and I just wanted to enter into the BP contest. Based on Charlie's response, I will pursue the release. Thanks again.

9/17/2005 8:58:28 AM

 

BetterPhoto Member
  Jane,
You do not need a release for the BP contest or posting on your site. I see I did not address the issue that you get in trouble when you make money from the sale of the image, usually not the display of it.
Charlie

9/17/2005 9:28:58 AM

 
Gen Nagase
BetterPhoto Member

member since: 5/31/2003
  Thank you, Carlie, for the information.
I have read your information in the past regarding "must have" a model release in your business experience.

This issue is certainly often misunderstood. I have been told and therefore I always thought we must obtain a model release for BP contest as well. I am so glad that you clarified our misunderstanding about this issue. I often thought a photo may not be considered for the winning selection when a model release may become an issue in posting one as a finalist/winner.

I have to go back and correct myself and clarify this issue in another thread where I stated otherwise.
Thanks, Charlies, as always. - nobi

9/19/2005 7:50:29 AM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  Yeah, this is interesting. I've seen judges comment that "this is a nice photo but wouldn't be able to win a contest without a release" or something like that. What is with this?

9/19/2005 8:24:06 AM

 
Sylvia B. Toftness

member since: 7/25/2005
  Do we have any lawyers among us who could help answer this? I'm tracking down a couple of releases right now so that I can post on BP. Thanks.

9/19/2005 8:42:26 AM

 
  Hmmmm! Interesting points here. I am not a lawyer, but have had to speak with one a time or two regarding photographic legal issues. I personally would not hesitate to post an unreleased image in the BP contest. I might think twice about submitting to a national or international contest where there is prize money. My understanding is that you have to be making money from the image for the real issue to arise.

9/19/2005 8:24:34 PM

 
David King

member since: 9/12/2004
  A few years ago there was a case that went against all we were ever taught about not needing releases for our own portfolios or use on the theory that we are not making money from it. A case was brought with the interesting angle that in fact we ARE making money if we use the photograph to get more work. As a part of the material that makes someone want to hire us it has a value. They won against the photographer.

I do not know how the damages were computed or if the case was overturned on appeal, but the point is the cost of litigation is extraordinary even if you win. So even if you want the shots for your own portfolio, I tell my students to be safe: get a release and on that release specify the uses for the photograph that are being OK'd.

More and more professional models are following the lead of the photographers and charging based on usage fees. That we are now on the receiving end and can see how it feels is another issue. The point is that if the invoicing and agreements/ releases specify uses and the shots are used for something else, the photographer has just opened themselves up for liability. Play it safe. Get a release. And don't leave terms open for interpretation.

David
www.ndavidking.com

9/20/2005 11:19:25 AM

 
Sylvia B. Toftness

member since: 7/25/2005
  Thanks, David. This is very helpful.

9/20/2005 12:00:26 PM

 
Terry  R. Hatfield
BetterPhoto Member
Contact Terry
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member since: 1/4/2003
  According To The BP Rules On The Subject You Do Need A Model Release Form Signed For People Images With Recognizable Faces This Is From The (How To Categorize Page),The People Category
These are pictures of people in all walks of life - parenting and family, children, baby pics, couples and relationships, models / fashion, sports, and the like. Important: as according to the Contest Terms & Conditions, be sure you have signed model releases for any recognizable people in these photos.
And This Is From The Terms And Conditions For Uploading Photos To Better Photo,
Model Release
Uploader acknowledges that they have sufficient written permission of any recognizable models or other persons appearing in the photograph to be able to grant to BetterPhoto.com the right to publish their photographic submission online, and hereby grant to BetterPhoto.com such right.
So It Would Appear To Me That You Do Need A Release Form Signed.
Andrew Makes A Good Point Also About The Judges Comments Needing A Release Form Signed,But In The Same Instance How Did The Judge Even Know That You Havent Got The Form Signed In Your Hand Already? Sounds Like Speculation To Me Since You Dont Have To Show It.
Seems To Me That Getting The Form Signed Would Be The Best Policy:-)

9/21/2005 3:51:06 PM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  I know, that's something that really bugged me because you know, even if you came back and said that you have a release, they still wouldn't consider it probably since they had already passed it by.

9/21/2005 4:39:48 PM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  One last thing is this...how would you take a really great picture of somebody and then you have to be like, ok, sign away all your right incase I ever want to use this. I mean, it's not like all of your shots are from a modeling session. I think most of the pictures I've seen this comment posted to have been concert pictures or similar I guess. I don't know, sometimes it's just silly. If you're a painter do you need to get a realease to paint somewhat of a likeness of somebody or something?

9/21/2005 4:43:08 PM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  David,
I would like to see the validity in what you are saying. Can you provide a source for the case number? If you can not do you know the name of the defendant, or any other information on the case? I will have my husband look this up to find out the outcome. I would hate to send a frenzy throughout the entire photography world for no reason. I bet the case was laughed at by the presiding judge and the accuser was told to leave the court room and or fined for frivolous proceedings.

9/21/2005 5:01:21 PM

 
Kelly Plitt
BetterPhoto Member

member since: 2/6/2005
  Any photo that you enter in the contest requires a release, since they can and do publish selected photos to promote their site.

Betterphoto has used one of my photos in their link: "your member center" They notified me (along with some others) that they were going to use it (and thanked me), but didn't ask my permission because they already had it when I entered the photo in the contest. The image was of three kids, and I made sure a long time ago that I got a release from the parents, who agreed, under the condition the kids would not be identified by name.

If I hadn't obtained a release, I suppose I would be the one who was liable, not betterphoto.

Just my two cents!
-Kelly

9/22/2005 10:48:12 AM

 
David King

member since: 9/12/2004
  Melissa, my recollection is of reading about the case in PDN in early 2000 or late 1999 (?) but off the top of my head don't remember precisely. I could try to shephardize it if I get a moment. But actually, and ethically, I think there is a grain of a point there worth taking with some ethical seriousness. We DO, after all, realize a benefit from our portfolio shots in that they are what we rely on to get work. They ARE advertisements except they are to advertise US. And, too, sometimes a shot intended just for a portfolio is good enough to then want to expand its exposure, for example, into a book or online. maybe it gets put in a workbook/sourcebook. Then we not only are using someone else to our economic advantage, we may be treading into privacy waters as well. Whether or not the case in question went one way or another, I think a sound enough argument can be created to avoid any abuse of process issues and that means there will be a cost to the photographer regardless of how it turns out. In this litigious society (especially in California where I am) the game seems to be finely honed to try to ride on someone else's success and skim off some bucks with law suits. I may, with you, laugh at the idea on some leve, but from a practical standpoint I don't put anything in my book or online I do not have written permission to use. It is not only safe, it happens, in my opinion, to be the right thing to do.

THe poster about past doco shooters forgets that times and the law have changed, as have ethical issues. A person's image is their own property. If it has value to a photog then it has value to the subject. What is so hard to understand about that. We rip off people in other countries all the time by photographing them often in situation that would be offensive or embarassing to them knowing we can get away with it. But that doesn't make it right or ethical. Lots of people rob banks but that doesn't make it acceptable behavior.

And, in my opinion, if the only way we can get a good shot is by ambush shooting then we need to turn in our pro photog badge because we have ceased being artists and devolved into being Peeping Toms and social voyeurs whose images garner attention only because of the shock or exotic value but not because of the inherent art in them.

David
www.ndavidking.com

9/22/2005 11:44:58 AM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  Are you a lawyer? I don't like lawyers. Too many people have sticks up their rear end. I think a lawsuit because of a photo is the same as somebody spilling hot coffee on themself and blaming the people who made the coffee. If it's somebody's child being used, I definilty understand that but how I've heard on here about cell phones and a mouth and saying that is your mouth or something similar, that's just crazy and that's 10 times worse than simply not having a release I guess. The thing is, if you have a photo of someone and you make some money with that, you turn around and give all the rights back to the person who is in the picture, they probably won't make a buck off of it because they don't have anything else. A photo is definitly not worth the same to most people. Oh well.

9/22/2005 12:22:08 PM

 
KHAWLA Haddad
BetterPhoto Member
Contact KHAWLA
KHAWLA's Gallery

member since: 1/23/2005
  WOW thank you so much Charlie for all this info I have learn my lesson on that in past 2 days where I Get verbal OK and then after few hours have the police knocking on my door lucky for me I just delet the shots and that was the end of it but it sure tought me never take any photo with out one and now reading this it sure a sure me of what I Was thinking on doing from now one be the right choice I Have find them on net and print them out just for safty reason it really such emotion rack than anything to have to deal with that thank you so much for very helpfuly info

Kelly

9/22/2005 1:05:39 PM

 
David King

member since: 9/12/2004
  Wow, Andrew, speaking of having a stick somewhere... You clearly missed the whole point of my saying that photogs need to protect themselves from potential suits by not leaving an opening for it. Perhaps (and you would know this better than anyone else) your image has no value to you. And from that you infer that no one else's does either. But there are a lot of people out there who believe that they have a right to the distribution of their own image. That does not mean they want all rights to it, merely SOME rights, and perhaps some recompense when that image is used in a way that results in economic gain to someone else. What is not fair about that?

The issue is not whether you or I or any photographer thinks its no big deal, it is whether the person in the photo thinks so and what options they may have in the current legal system to deal with it that will have a negative impact on the shooter. I merely tried to point out there may be a number of such options ready to pounce on the photographer under the theory that forewarned is forearmed.

Given that to you it is apparently a major pain, I would encourage you to ignore all the warnings, tell the people trying to give some protective advice you don't like them because you don't like the news, and shoot away, making all the money you can possibly grab. And then, someday, you can explain the profundity of your position to a jury looking to take everything you have or ever will have.

For myself and to my students I feel it is not worth the risk when the solution is so simple. But if that is a problem for you then don't do it. As the cowboys say, "Pay your money and take your ride." But don't then complain about the result if it comes around to bite you somehow. it is completely up to you whether or not you chose to profit from an educational opportunity.

And no, I am not a lawyer. However, if you do not see that someone ordering hot coffee and burning themselves doing something stupid with it, is substantively different from someone being photographed completely without their involvement or knowledge and then having that photo used by another to make money, then please don't let that alter your opinion of me.

David
www.ndavidking.com

9/22/2005 1:28:26 PM

 
Sylvia B. Toftness

member since: 7/25/2005
  David,
Thank you for your measured response.

While neither a professional photographer,nor a lawyer, I've worked with both extensively over 30+ years in my own field - public relations. My approach is to be very conservative, to think and act to preserve the rights of the person in the image regardless of who they are--child in a school setting, a criminal captured by police, employee in a corporate video, or community member involved in a civic meeting.

9/22/2005 1:56:53 PM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  Hey, I'll read that as soon as I post this, but before I read it, I wanted to say that I had just been talking with some other people in my photo class about this kinda thing so we were getting all fired up, haha.

9/22/2005 3:52:42 PM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  That's cool, I don't believe that I will ever do stock kinda stuff for that reason. I have done some photojournalism for my university and I guess we just get names and stuff but of course we don't need to for that kinda stuff, that's what I'm told. I think these few people out there that might get bent out of shape by having their picture taken or making the photog prove that it is not them in the picture.

Sorry, I should have asked about this first but when you mentioned about being worth something, I was thinking more in the line of money and not, hey, I really like this picture of me. Assuming that the person would request the amount of money that the photog made from the image when there's clearly no way that that person could have made anything close to that if even a dollar with that image had they owned it.

Just out of curiosity, what is the technical name for "you can't prove that's not me because you don't have a release"?

9/22/2005 4:03:44 PM

 
David King

member since: 9/12/2004
  Andrew wrote: "Just out of curiosity, what is the technical name for "you can't prove that's not me because you don't have a release"?

I think the technical term for that is "deep doo-doo." It will be up to you to prove it is NOT them if the person in the photo looks at all like the person bringing the accusation. Obviously the release would be a good start along with witnesses or anyone who could coorborate your story, like for example the real person along with other frames from the shoot showing clearly the subject is someone else. Generally this type of thing only happens when the accuser sees tall dollars flashing before their eyes but sometimes it is over a different matter and can really come out of left field at you. Imagine for example (and this happened) shooting at the beach and having a lovely sunset shot with two lovers wrapped in each other's arms in the glorious golden light. A shot so pretty and with all the warm fuzzies to make it a killer stock shot. So it gets sold, gets published, and who should see it but the REAL spoouse of one of the lovers in your shot. They sue for divorce and the other sues you for invasion of privacy, libel, and a host of nuisance things tacked on. And you cannot prove it wasn't really them (becasue it actually was). will they win? Who knows? It will depend on the jurisdiction, the judge (or jury) and the appelate court's sanity. But win or lose you will be out some major dollars defending against it. And those are dollars needlessly lost for want of a simple release. It is just not worth it to me.

David
www.ndavidking.com

9/22/2005 6:21:17 PM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  David is OBVIOUSLY NOT a lawyer. AND if you had the actual so called case you are citing from I would simply check this out. BUT, you can not even stand by what you are stating because what you are stating is clearly wrong. If you choose to live in a state of panic paranoia then all the right to you but, I do not choose to do so. AND I do not care to listen to a bunch of hype that is aimed at causing a state of paranoia to the masses of people that enjoy photography.

You stated: "And no, I am not a lawyer. However, if you do not see that someone ordering hot coffee and burning themselves doing something stupid with it, is substantively different from someone being photographed completely without their involvement or knowledge and then having that photo used by another to make money"

IF YOU WERE a lawyer you COULD see the difference in these two they are COMPLETELY different cases. Second of all you are talking apples and oranges and trying to confuse your audience in the persuit of making a point. This is called filibustering and this is not an acceptable tactic in law and would never be tolerated in a court. But, of course IF YOU WERE a lawer you would know that.

Lesson here is do not offer law advice if you know nothing of the law.

9/22/2005 9:30:35 PM

 
Andrew Laverghetta
BetterPhoto Member

member since: 9/13/2004
  ok, i'm done. now that nobody ever wants to enter a people photo in the contest...

9/22/2005 10:29:12 PM

 
David King

member since: 9/12/2004
  Melissa, if you took the time to actually read the sentence you quoted (somewhat out of context)you would see that I agree with you: of COURSE there is a difference between the two -- that is whhat I said in the process of questioning someone else who wrote as if they thought the two were the same. What you could also have read was that I gave what I recollected to be an over six year old source for the story: a PDN magazine. I may have confused you with complex or compound sentences for which I apologize. If I stepped on some personal toes with my opinion then I apologize for that too. But before you react so negatively, make sure the toes were on solid ground on the sidewalk and not out in traffic.

I am divinely indifferent as to whether or not you think the story was true or, if it was, how it turned out. I also stated that was not the point. Based on on some off list replies I assume most got it; but since it appears on the surface at least as if it eluded you, I'll repeat it since it is important: The point was that sue-happy people will always be able to find some hungry attorney to take a case, and should it happen, a photographer will likely (please note I said "likely" not "certainly") end up with some serious out of pocket costs no matter the resolution. Further I stated, I think clearly, that I advise my students that the safest thing to do is to always get a release. I don't think that statement is arguable.

None of that was meant personally, certainly not at you. Nevertheles I am equally indifferent as to whether or not you would accept that advice or think it bogus to the core since I don't have to carry the freight for any ramifications of your choices. I am not opposed to photographers doing stupid things and being put out of business as a result since it helps lower the competition and is simply more chlorine in the gene pool. But when someone, whether a student or a lister (here Jane) asks a question which can have a huge impact on them, then I will try to give them an honest answer based on my experience and designed mostly to keep them out of trouble. If your vast profesional experience is different, as it certainly can be in a large field, then support it with examples or at least logic, not with an attack.

I do not therefore understand either the massive resistance to what is so clearly an ethical thing to do, i.e. ask permission of someone to use their photograph, or the proclivity to release the personal venom contained in your response.

Re the law, I am not a practicing lawyer because I let my 'ticket' expire after the first five years after the bar knowing I had no intention of practicing and having little or no enjoyment, frankly, of my erstwhile colleagues. That was a long time ago, I'll admit, though I do try to keep up on those areas that effect my business which is being a working photographer. However in preparation for my 'Business of Photography' courses at the college where I teach, I not only pick the brains of, but invite several attorney friends who specialize in the intellectual property or tort fields to come and speak to the classes. One of them, prior to coming to San Diego to teach, was part of a TEAM of L.A. lawyers for a famous photographer who just died that was constantly both seeking out image infringements, and also defending spurious suits by people who tried to ride the gravy train thinking they could get away with 'looking like' someone in a published photo. Some of HIS first-hand stories would give you a whole new definition of paranoia.

I have no interest in confusing my 'audience' (or my regular students) about anything, especially about my one and only point here which was that I believe, based on a 30+ year career in professional photography, that it is always safest to get a release and I've never personally had a reason not to. I take people pictures for a living and have no inhibitions about using them in a contest or in a publication... because they all have releases.

The lesson here is that if you do not know someone's real background you should not leap to conclusions about what they may or may not know. The results, as they may be here, are not often flattering. Oh, and this... Fillibustering is not a legal tactic it is a political one of parliamentary procedure, and one to which I am opposed.

David
www.ndavidking.com

9/23/2005 8:16:20 AM

 
Erin Blair

member since: 1/11/2012
  people in this strain are rude. Can't we just discuss every corner of the issue? Why do you have to be such assholes to each other. I'm just trying to research the topic and you all are bickering like a bunch of children. if your being rude, your a jerk. Stay off this strain. some of us are actually just trying to explore the topic.

5/21/2012 10:18:11 AM

 
Kay Beausoleil
BetterPhoto Member
Contact Kay
Kay's Gallery
KayBeausoleilPhotography.com

member since: 5/31/2004
  Erin, you do realise you're answering seven year old posts? And that as a consequence, much of that information is out of date?

5/21/2012 2:20:15 PM

 
Gregory LaGrange
BetterPhoto Member
gregorylagrange.org

member since: 11/11/2003
  The bright side is after sever years the "bickering children" should be peace loving teenagers by now.

5/21/2012 4:56:46 PM

 
Gregory LaGrange
BetterPhoto Member
gregorylagrange.org

member since: 11/11/2003
  oops, seven years

5/21/2012 5:10:44 PM

 
Wendy M. Hansen-Penman
BetterPhoto Member
Contact Wendy
Wendy's Gallery

member since: 7/16/2011
  Do you need releases for "crowd" photos? Do you need specific releases from a wedding you are paid to shoot, if your contract states you retain the rights? Can you get a release signed after the fact?

6/11/2012 1:38:37 PM

 

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