Copyright for Photographers – Do I Need a Model Release?
Unfortunately, when it comes to photographing people and model releases, it can become a bit confusing when you try to swim through the stormy seas of Federal and provincial copyright and privacy laws, especially when these can vary widely from province to province.
What is comes down to – and what you’ll be referring to in your release if you have one – is the end use of the photographs: personal usage, editorial usage or commercial usage.
The photograph is being taken for creative and artistic purposes and may be used for self-promotion, in the photographer’s portfolio, and possible sold as fine art prints through the photographer’s website or at a gallery. No releases are usually required for personal usage but… be respectful of your subject. If they consider themselves to be a model (not just a performer), you should get a release.
Editorial photos are used for newsworthy items. You will find these photos in newspapers, web news sites and television newscasts. Photos used for editorial purposes must be factual and unedited in order to accurately convey the event at the time the photo was taken. No releases are usually requested for news items but credit must be given.
This usually occurs when the photograph is used for “advertising” purposes – your photo is used to promote or endorse a commercial product which implies that the model is also promoting/endorsing it. Model releases are needed and sometimes a location release is needed as well.
- You sell the photo to an advertising agency, which then uses it in an ad to sell a product.
- You hire a model to do a photo shoot with a car as a prop for the use of Honda, your client.
So what are my options?
There are two different kinds of photo releases – a model release and a location release. When you’re working with models and performers in a live event or studio situation, you’ll mostly need to deal with model releases.
A model release is an agreement or contract between the photographer and the model (or performer) that is meant to release the artist from legal liabilities by clearly defining the terms of the relationship between the two parties in order to avoid misunderstandings and minimize the possibility of lawsuits.
When do they apply?
When the performer is at a public venue such as a park or on a street or performs at a public event such as a ribbon cutting, there is no expectation of privacy for the performers (celebrity, singer, dancer, etc.) as it is impossible to control not only the photography by everyone at the event (cameras, smartphones, etc.) but also to monitor the media after the event for photos (personal websites, Flickr, 500px, Tumblr, newspapers, blogs, the list goes on).
At a performance in a private venue such as a nightclub, theatre, or church, there is more control over attendance. Occasionally the event producer or manager will require that photographers sign waivers (contracts, photo policies) with varying levels of photo restrictions. These may include:
- Limit on # of photos per performer
- Request for copies of photos – either watermarked or hi-res non-watermarked
- Transfer of copyright
- Usage terms – non-commercial, personal only
So do I need a release?
At a private event with a waiver, you’re covered for the terms set out therein. Without that waiver, you should try to get a release if you can – it builds a personal relationship with your subject and covers you for commercial licensing in the future.
Public events are tricky – can you imagine trying to get releases from hundreds of participants at an outdoor concert? As most public events tend to be newsworthy, they can fall into that grey area of editorial usage. Usually, if the people are not easily identifiable or are not the main subject of the photo, a release is not needed. Many times producers have performers sign releases acknowledging photography at the events and these will cover you.
Whether you hire a model or they hire you in order to produce a series of photos for a portfolio or artistic project, both you and your client need to make it clear how each party can use the final pieces – especially if the photos will be used commercially. This is why a model release is so important:
- On the client’s side, it outlines items such as usage (commercial, non-commercial, web, print, etc.), crediting of the photographer, whether the photos can be modified, etc.
- On the photographer’s side, it outline items such as copyright, usage, crediting of the model (real name or stage name), selling of prints, etc.
If you’re working with an underage model (under 18), you’ll also need to make sure that the release includes their guardian’s signature as they cannot legally sign the release.
Make sure to keep copies of the signed releases on file to refer to if needed at a later date: if you decide to sell the images commercially, stock agencies require a copy of your model release; contests and magazines will also require copies of model releases with your submissions; and PIPEDA (Personal Information Protection and Electronic Documents Act) requires that you keep the releases for as long as the image exists.
Shooting for Stock
Any model photo that you submit for sale to a stock agency must be accompanied by a model release since you have no idea who will purchase the image and how it will be used. As commercial use is “a photo used to advertise or endorse a product or service,” you need to make sure that your model release covers this and the model is aware of the potential uses of their image.
If you sell a photo from a model shoot to a microstock website where it’s available for $10, it may be purchased 100 times in a month and you will not know what any of those 100 uses are. The photo could be used on anything from a book cover, to a website, to an ad for condoms. You don’t want this to be a surprise to a model that you have developed a good working relationship with.
Unless you are hired to photograph a child or group of children and have explicit permission and a signed release from each minor’s guardian, don’t photograph kids.
Parents are very protective of their children. There may be several reasons why they would not want their images publicized: family issues, social issues, and legal issues. While photographing children at a private party or in a studio can work quite well, you can bet there’s nothing that will get you arrested faster than hanging around taking photos of children out in a park or school playground.
There are many excellent sample releases out on the web that you can download and modify for your own purposes, but make sure that you seek out either Canadian or US sources depending on your location to ensure that the language and legalities apply to you.
Model releases are negotiable but most times the blanket release is signed if written properly. There are some basic pieces that you should include in your standard template:
- Name and signature of the model
- Name and signature of the photographer
- The date
- The consideration – what the model receives upon signing the release (their fee, TFP, etc.)
- A statement that the model is of the age of majority
- The way(s) the image will be used
- Permission for the artist to make alterations to the image
- The right of the photographer’s agents, assigns and legal representatives to the use of the images
- A minor’s parent or guardian signature if the model is under 18 as contracts are not binding without their signature
Now that you have a general idea of the instances where you might need a model release, you’re ready to start selling your photos.
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