Do You Really Need That Model Release?

Do you know when to get a models release?
22 December 2009 Post Author:
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Editor’s Note: Readers please be SURE to read the comment below from Dan Heller, the photographer whose articles I cited, for some important input that clarifies my point – in retrospect, I should have asked Dan to write this article – live and learn, yes?

Recently I was chatting via email with Stephany Wiestling, founder & editor of BestKidFriendlyTravel.com, and in one of our back-and-forth missives she mentioned that she had brought her 5 year old son on a Press Trip (entirely appropriate, since it was to review a kid-friendly resort, and he had been invited also), and that all of the other travel writers & bloggers took pictures of her son enjoying the resort.

Her question to me was: should she have asked that they mention (and link to) her website in exchange for using photos of her son in their articles?

I told her that in my opinion I felt it was a very reasonable request, and that I couldn’t imagine any of the other writers would object.

BUT this also brought up a very important point.

In years past, travel writers sent on assignment by magazines were often accompanied by a professional photographer, but these days few publications have the resources or budget to continue this practice.

Instead many travel writers and bloggers are also doubling as travel photographers, submitting their own photos with stories to publishers, or simply posting them along with their article to their own travel blog (or other people’s travel blog).

This is fine until you use a travel photo that features a person or people (specifically, someone OTHER than yourself or an immediate family member). In this situation there is a possibility – albeit a small one – that you could run into trouble if you don’t have a signed models release from everyone in the photos.

A models release is a legal document that typically assign’s all rights to a photo to a person or entity, usually the photographer, who can then further assign those rights if the photo is subsequently sold to a publication. I say “typically” because there is no single standard form used to cover all situations and uses, and there are different forms needed for adults vs. minors.

A models release is not required by any law, but most reputable publishers will not print a photo that has a person/people in it without one, because they could be exposing themselves to a potential lawsuit if the person(s) in the photo objected.

Whether or not you need a signed models release depends upon how you (or the publication) “use” the photo, and the definition for that use can be pretty confusing. It has to do with whether the person(s) in the photo could be interpreted as promoting something in the accompanying article. “Promoting” is a loosly defined term that could mean anything from selling to endorsing, and could apply to an endorsement of a destination.

The best discussion I’ve seen online about this subject is the “Model Release Primer” written by photographer Dan Heller, but be prepared to spend some time reading – it’s long and can get a little confusing in the middle, but wraps things up nicely at the end. He has a companion article titled simply “Model Releases” that is also worth the time to read.

Another good simple explanation can be found at the American Society of Media Photographers website, “Property and Model Releases“, and of course WikiPedia’s article on Model Releases is worth reading as well.

Many people will tell you that a models release is not legally required to take a photo or to sell one, and they’re technically correct. However, having one WILL make it easier for you to sell or submit a photo since you’ll be making it easier for the person/publicaton that will actually use the photo.

The bottom line is to be aware that you may run into this requirement at some point in your travel writing career, so having a few blank forms with you when you travel just may come in handy. At the very least, be SURE that you get the name and address for anyone whose photo you snap, so that a release can later be obtained if it’s determined that one is needed.

~Trisha

Do you take photos of people on your trips? Do you get a models release?

14 Responses to “Do You Really Need That Model Release?”

  1. Rebecca
    Twitter:
    says:

    I never thought about the “models release” form when you’re taking and using photos. I remembering hearing about it in my law classes. Thanks for the reminder!

  2. Thanks for this article, Trisha.

    Funny that I cannot act without a photo release in the corporate world, but actually never thought about using one for our travel guides. Now I will rethink that – especially for promotional photos and videos.

    If anyone reading this wants to see an example of a photo release form that I have used in other jobs, please contact me though my website or twitter and I will send you a copy.

  3. JoAnna
    Twitter:
    says:

    You bring up some good points here Trisha. When I travel, I do always ask for permission if I can photograph people, if for no other reason than it just seems to be the polite thing to do. I was recently on a press trip and some girl just started snapping photos without asking … it was super embarrassing!

    I’m curious to know if you think that we should be getting a release for every single person we photograph, especially out in the sticks on press trips? Many of the people I meet barely speak English and would have idea what they’re signing.
    .-= JoAnna´s last blog post: An Open Letter to Santa Claus =-.

    • I agree that asking for permission to take a photo is the right thing to do, even if all you can do (because of language barriers) is to gesture non-verbally by raising your camera and your eyebrows in a questioning manner to indicate that you’d like to take their photo – a smile and a pose usually indicates a “yes”.

      However, getting a signed release isn’t always feasible or possible – and let’s be honest here – the likelihood that someone in a remote place, without internet access or magazines, would cause a problem is extremely small.

      Since a signed release is NOT legally required to TAKE a photo, nor to SELL one, I’d leave it up to whomever you sell the photo to – just be clear that you DON’T have a release, and let them deal with deciding if one is needed or not. Just be aware that it may limit whom you can sell a photo to.

      If it’s just to use on your own blog, I would not worry about it in those rare cases where you can’t get a signature – if someone ever complains, just replace the photo with another one.

  4. Dave
    Twitter:
    says:

    Thanks for this article – it’s a grey area I’m trying hard to clear up in my own mind. I’ve taken thousands of photos the last few years, and while I’d ask permission of the locals, I rarely did of other travelers/new friends.

    Most knew I had a blog, and their photos would likely end up there, and were fine with that. I’m sure I risk others not being too happy about it, but I’ve always tried to use my judgment.

    With the way social media and the internet are moving toward an open virtual society, it seems hard to believe that release forms are going to be common for most bloggers, especially travel bloggers.
    .-= Dave´s last blog post: How to Get 2 Trans-Atlantic Flights for $75 =-.

    • Hi Dave – this is just my opinion (and I’m not an attorney) but I really believe that for use on your blog you’re probably fine without a signed release. As I mentioned to JoAnna above, if someone complains you can easily swap out the photo for a different one.

      The issue will likely only come up if you sell or submit a photo (with or without an article) for publication in a magazine. It may make it easier if you do have a release, but not having one doesn’t mean the won’t take the photo, just that they might not. If the photo is really a terrific one, and they want it badly enough, they’ll deal with the lack of a release on their own, which is where having the contact info for the person(s) in the photo comes in handy.

  5. Sandra Kennedy
    Twitter:
    says:

    I believe that it is important to always ask a person if they can be photographed. However, it seems a problem when I am out in remote locales, to ask for a signature when they don’t understand and cannot write their name.

    Any suggestions?

    • Hi Sandra – thanks for stopping by! I do agree with you – the bottom line is that sometimes you just can’t get a signed models release for a lot of reasons, such as your example.

      As long as you’re clear to whomever buys the photo from you that you don’t have one (and I’d put that in writing), then it’s up to them to decide if it’s still appropriate to use the photo without the release.

      Keep in mind that it’s the USE of a photo that determines if it’s needed. Say you sell a wonderful photo of an older woman sitting outside of a church in Romania and it’s used to accompany an article about the history of churches. Because the article isn’t selling any item, it’s unlikely that it would require a release. But it’s the responsiblity of the person or entity that USES the photo to determine the need and follow through with getting one, or not use the photo.

      So I don’t think you need to change how you operate, just get a models release when you can, and when you can’t be sure to make clear that you don’t have one if you sell that photo.

  6. Dan Heller says:

    While I believe your article is well-written and technically correct (and I do appreciate your having linked to my articles), the responses to this article suggest that people are coming away with the wrong message.

    So, let’s be blunt: Travel writers and publications are entirely editorial. There is no middle ground. Model releases are never, ever required for such writers or their publications. This is true even if it appears the article is promoting a destination, resort or anything else. The definition of “editorial” means that opinions are expressed, and the context of a magazine is where such opinions–positive or negative are protected by the first amendment. Hence, no consent (release) is required by people or places mentioned or photographed in context with this opinion.

    As for the person who said, “it never hurts to ask for a release,” well, yes it can, under rare circumstances. If you were to ask for a release in a context where you would otherwise NOT need a release, then you open yourself up to a condition where someone may make a claim that it was a “staged” photograph, and therefore, it may compromise their “privacy rights.”

    Now, this is a rare situation, but it could occur. For example, if you photograph a man traveling with his mistress as he’s cheating on his wife, you are perfectly within your rights to take the picture, and a magazine can publish it. Here, there’s no question about the candid nature of the photo. However, if you ask for a release, but do so in a way that he doesn’t quite understand the ramifications of what he’s doing (especially if he doesn’t speak or read english all that well), then a set of conditions could arise where the wife finds out, and the subject makes a claim that he was coaxed or misrepresented about the nature of the photo. This *does* happen, but rare.

    The point is: travel photographers, tourists, or anyone else that’s NOT shooting with specific, commercial intentions should NOT ask for model releases for images destined for editorial publication.

    Now, if you plan on selling some photos in the commercial aftermarket later, then yes, ask for releases, but be judicious: choose pictures and people that you genuinely feel have commercial appeal. (And remember, it’s very rare for commercial buyers to buy images from photographers they haven’t worked with before, because they can’t necessarily believe the model releases that you provide are actually genuine.) Asking for releases (and then managing piles and piles of them, and keeping them in sync with your image archives) is a major nightmare–unless you spend unreasonable amounts of time getting this process right, you’re wasting a great deal of energy on protection that you don’t need anyway.

    So, when traveling, don’t over-think the whole issue of releases. Just have a good time and think of yourself as a journalist: they never need releases either.

    • Thank you Dan, for taking the time to add your input and more importantly, your clarifications. I added a note at the top of this post to make sure readers don’t miss your comments.

      I found your article to be an excellent resource and guide, and hope that anyone who reads my post will take the time to go and read your articles as well.

      My intent was to make sure that those who find themselves in the position of photographer as well as writer (getting more common these days) just needs to be aware of the potential for an issue should they sell their photographs. There are a lot of travel writing courses out there telling travel writers that they can also make money selling their photographs, which is true, but I wanted to make sure they understood that there is more involved than just snapping a picture and walking away. Maybe not in every case, but in some cases.

      I very much appreciate your comments!

  7. If you really need it badly then you have to do something just to get the model release. This post is quite interesting anyway.

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