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Photography Question 
Tami 
 

Model Releases for Old Photographs


I have an estate collection of photography from the 1930s-1960s with some very remarkable images of people (celebrities, Seminole Indians, etc.). I am restoring the pics and want to market them, but am reading conflicting information about whether I need a signed model release for these old images. Any thoughts? Thanks!


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7/2/2006 4:37:43 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well, Tami, the short answer is yes, you need a release as long as the individuals are recognizable in any manner or form. The basis for releases, at least under federal and state law here in the U.S., is to protect fundamental rights to privacy, which includes a collateral, statutory right against defamation (libel, slander) or simply using someone's image (or a recognizable likeness of someones image) in a derrogatory manner.
Now as to your immediate problem, the personal right to privacy and also the laws of defamation, they continue to apply after the subject is deceased but go to the next of kin by the laws of succession. In other words, if you alter a photograph of someone who's deceased and it could be construed in a derrogatory way, you're conceivably on the hook for a defamation action brought by, say, the subject's adult kid or conservator on behalf of a minor child.
Or, if you use a photograph of someone, whether it's altered or not, for any commercial value and someone recognizes the subject as, say, their grandfather and can prove they're a living relative of the person, they can attach all the profits derived from the image plus damages for invasion of grampa's privacy.
Remember, publishing, in any way, requires a release these days. Even when the news media exception might arguably apply, it's a good idea to have a release. They don't prevent lawsuits but they're your first line of defense against one for the reasons I mentioned above.
On the other hand, you could just decide to roll the dice and do what you wish with the photos and run the risk of someone, somewhere, recognizing the image as so and, like reaching from beyond the grave, tapping you on the shoulder to ask whether you have a release.
Good luck. My advice is for you to drop the dime on a lawyer who specializes in wills and trusts or estate planning in the state you live in and get a written opinion that you can really rely on in your own jurisdiction.
Take it light.
Mark


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7/2/2006 6:45:16 PM

 
Bill Boswell   For what it is worth, I was at a recent Popular Photography workshop with Rick Sammon (publisher of about 27 photography books www.ricksammon.com) and he says he has never had a model release for the hundreds of people he has photographed and included in his books.


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7/4/2006 6:23:05 AM

 
Kirk Lawler   Mark,
I was surprised by a number of points you made regarding the right to privacy as it applies to publishing photographs (exclusive of the defamation issue). Please provide citations for the United States Code on which you based your answer. Thank you.
Kirk L.


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7/4/2006 4:48:48 PM

 
anonymous 
BetterPhoto Member Since: 2/7/2005
  Oh don't worry about, just do it. People get so hung up on model releases it is crazy. The photos were taken 50 years ago +. The people aren't going to track you down and sue you, they are probably either very old, moved away or dead.

I see photos all the time for sale, and there is no model release with them.


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7/4/2006 4:54:36 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well gang, ya lays yer money down and ya takes yer chances. I know a guy who's been driving a car for 37 years without ever using a seat belt and he's never been injured in a car crash. What does that tell ya? Class....anybody....anyone???

Kirk, as I've mentioned many times here, the law of privacy, including laws pertaining to defamation, libel slander, etc., are creatures of state law. That's why I specifically told to get a written opinion from a lawyer in her jurisdiction.

As for the U.S.C. Kirk, all that does is codify federal law into statutes. The U.S. Constitution, which provides for rights of privacy and against various forms of unlawful search and seizure, are not codified. If you're interested in studying the subject and finding federal case law from the 12 federal circuits, including the D.C. Circuit, and the Supremes, go to a law library and research in the Federal Reporter, the Supreme Court Digest, and the Key system under privacy, right to privacy AND photography, invasion of privacy, exigent circumstances, etc. Most law librarians would be glad to help you find what you need there.

Take it light.
Mark


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7/6/2006 8:35:45 PM

 
marisa basso   In regards to copyright law, what I read under the government copyright laws was that if the photograph is 100 years old that there are no statutes agains copying a photograph. I also heard that if it is 50 years there is no statute. Now I am not a lawyer and I am not about to say what is fact, you need to research it. As a Photographer, I do have issues with people who come to me and ask me to scan in there wedding photos, and they always have an excuse that the photographer no longer has the negatives or something. So I tell them to get a letter from the photographer ok'ing it for me to scan it and make them copies. Do the people come back? No. But in my eyes a person that wants to make copies of prints that are obviously a few years old, I dont want to disrespect a photographer for his work and would hope he would do the same. He needs to make money too. For old photos, I have no problem. And regarding defamation or slander, how is it slander if a person is restoring the photo without changing anything, and they would like to display it. I would think the dead would honor such a photo. I had a problem once when I brought a photo in of my mother that I restored on my computer. I watned to print it up. Because there was a photographers name stamped on the back they would not allow me to print the second copy. I showed them my business card, they still would not allow it. What did I do? I said, here, look in the phone book. Do you really think the photographer is alive, being it was 60 years ago!!!!! The guy was so dense, I left and told him you just lost business, get your facts straight, and dont call yourself a photographer if you have no clue about right and wrong. NEVER COPY present day photos in regards to respect of the photographer, but if they are dead.....go for it. Do you really think there is someone out there that will even see the work, let alone will recognize some relative from 100 years ago. I dont think so. Lastly, if there is a photographers name on the original, what I do, is I put on the new photo "Restoration by #$%^^&&&, Photography by "joe shmoe" whatever the name is.


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8/4/2006 5:18:41 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Hey Marisa: The question Tami posed has nothing to do with copyright law. It's whether a release of some kind is required. Please go back and reread the call of the question.

The issues here are privacy, appropriation of likeness for commercial purposes, and whether someone from the depicted individual's estate recognizes their relative(s). Apparently your view of slander is defined through seance or something by the dead person depicted in the image. Sorry, but that's simply NOT the law.
Mark


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8/4/2006 8:41:42 PM

 
marisa basso   Ok, I did get a bit confused. No you do not need a release after so many years as I stated. You can check the govt website for that regarding copyright law, but I am not sure, I would guess you would need a release from someone in relation to the family if it means reselling a image created by someone. I actually am going through something like that now. I created an image and posted it in a competition. I have proof through my negative that it is my image, and one weekend in a Best Buy flyer, I was looking at the tv's they were selling....and I saw my exact image in the tv set in the flyer! I contacted best buy, they wrote back saying that Sony is responsible being they sold the image to them. So I contacted Sony and am still waiting for them to respond. I would say to Tami....it is wrong, you should not be reselling images that were not made by you. That is like plagiarism. I know if someone took my images and started making copies and selling them, I would definatley see them in court. And if you are talking about photographs of native americans which I think you are saying, I would find out who the contact of the tribe is. If anything, you might be able to sell the image itself to a museum, but I dont think you can legally restore them and sell copies. That could be a historical and legal issue. I am not a lawyer, all I know is what I read on the Govt site about plagiarism and copyright law.


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8/5/2006 3:15:10 PM

 
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