All About Model Releases

 

There are lots of articles about model releases on the Internet, but almost all of them are written for photographers.They tell the photographer when he needs a release, what it ought to say, why he needs it, what bad thing happens to him if he doesnít get it. Because of that, all too often photographers see only one side, and many donít even understand what they are doing with the releases they ask models to sign.The articles donít give a modelís perspective.

So letís fix that.Here is what models need to know about releases.Letís start at the beginning:

 

What is a Model Release?

 

††††††††††† A ďreleaseĒ is a modelís permission for someone to do something with her likeness that they could not legally do without her permission. Note:we did not say that a release is a contract between you and anyone else. Itís just your permission given to someone else. In some states (Illinois, Indiana, Kentucky, Massachusetts, Nevada, New York, Ohio, Rhode Island, Texas, Virginia and Wisconsin) the permission has to be in writing, in others it can be verbal, or just implied by conduct. The term "release" is unfortunate, because that has a technical meaning in the law, and in many cases, a "model release" does not have to meet the requirements of "a release" - just be "consent". (I know, that's too much detail, and we won't discuss it further. Just be aware that we will use the term "model release" because . . . well . . . that's what the industry does, even though in some cases "consent" is what is really meant.)

 

Errrrr . . . Doesnít a Release Have to be a Contract?

 

No, it doesnít, although people like to claim that it does.

A release is (normally) a document that the model signs, not the photographer.It is binding on her, but not necessarily on him, and it gives him immunity from liability for actions that would otherwise violate her rights.A "model release" is often written as a contract, but sometimes is not. A model release can be pages of legal verbiage, or as simple as "Jack, you can use my picture to advertise your beauty products."

It's important to point out that in the 39 states where consent does not have to be in writing, you can give "a model release" to a photographer or a client by what you say, or what you do, if it appears that those things mean you agree to allow a usage of your images. It's best, when negotiating a shoot, during a shoot, and after it, not to say or give the impression that you will allow things that you really don't want to happen. You may find that you have given "consent" to a photographer or client that he can hold you to. If you have limitations on the kind of use you want your pictures to be put to, say so.

Suppose, for instance, you live in one of those states that do not require that "a release" (or consent) be in writing. You see an ad for models to do a swimsuit calendar, and you answer it. The client likes you, you are hired, the shoot takes place, and the calendar is published. You may find that you have trouble later making a legal objection to the publication, because you implied your consent to use of your picture in the calendar by answering the ad, even if no "model release" was signed.

 

"Likeness"? Dont You Mean "Picture"?

 

No, it's more than just her picture. In some states, a person has the right to control exploitation of other aspects of their identity, not just their picture. A person's name, voice, mannerisms, signature, and even a distinctive walk can be protected, and need to be released to someone who is going to exploit them. In this article we may use the term "image" or "picture", but you should be aware that more than that can be meant.

 

What Rights Do I have?

 

A model has some rights to control or limit how her likeness is used.Those rights are granted by state law, not federal, and so vary quite a bit.Some states have very restrictive laws, others practically none.Generally, the rights fall into two categories:rights of privacy, and right of publicity.They are related concepts, and in some states one of them is granted to people under the title of the other, so itís not surprising that people confuse them.

 

Rights of Privacy

 

††††††††††† There are four generally recognized Rights of Privacy in the United States.Some states recognize all four rights; some donít recognize any.You will have to find out which ones actually apply in your state if you ever get into a confrontation over pictures you didnít want published.Here are the four:

 

††††††††††† Intrusion upon seclusion or solitude, or into private affairs.If you are in a place where you have a reasonable expectation of privacy, and someone publishes a picture of you taken there, it is a violation of your rights.

 

††††††††††† Public disclosure of embarrassing private facts.Even though the picture is accurate, if it discloses a private fact about you that is embarrassing, your rights are violated.In some states it can be a violation if someone even shows your pictures to someone else without your permission.

 

††††††††††† Publicity which places a person in a false light in the public eye.If a photo or the way it is used gives the viewer a false impression about you, your rights have been violated.

 

††††††††††† Appropriation of name or likeness.You have a right not to have your name or image misused by others for their own purposes.As the old description of the right goes, a ďright to be left aloneĒ.This particular right is often confused, even by some state law writers, with the Right of Publicity.

 

The Right of Publicity

 

Unlike the privacy rights, the right of publicity is a property right.It says you own the value of your image, and you have the sole right to exploit that value.In some states, a right of publicity is for celebrities, who have established the value of their image; in others it is a right afforded to everyone; and in many states it isnít recognized at all.

 

What State Law Applies?

 

††††††††††† Good question.Glad you asked.

††††††††††† For sure, the state where you live applies.The state where the photographer lives applies, if he publishes the pictures.The state where the publisher does business applies.The state where the pictures are published might apply, if you can get jurisdiction in some way.And if all else fails, the law of Indiana.You see, the legislature of that good state, in its wisdom, passed a law giving their Right of Publicity protections to everyone, whether they live in Indiana or not.Itís a wonderful world we live in.

††††††††††† Whether you can get personal jurisdiction over a photographer or publisher who lives where you donít is another matter, best left to the lawyers to wrestle with.But you may be able to choose a jurisdiction whose laws are more favorable to your case, depending on the circumstances.

 

Does That Mean He Canít Publish My Pictures Without A Release?

 

No.It doesnít.Those are limited rights, not absolute.Once a picture is taken, and depending on how it was taken and what it is, there is still a broad range of ways that photographers and publishers can use pictures of you without your permission.It varies (a lot) by state, but generally, use in newsworthy editorials, or in fine art, are permissible uses of your pictures without your permission.Photographers generally can sell pictures of you too, without your permission, as long as they donít sell them for impermissible uses.Moreover, if you are a ďpublic figureĒ (which some models are), many of your privacy rights donít apply to most forms of publication.

The best way you can be sure that pictures of you will not be published or sold is to not have them taken in the first place.You can also enter into a contract with the photographer where he gives up his rights to the pictures, but that is very unusual, and pretty expensive.

 

But Donít I Own The Pictures?They Are of Me!

 

††††††††††† No, you donít own them.The photographer does.That was decided decades before you ever stepped into the studio when Congress wrote the copyright laws.The photographer owns the copyright, and the right to publish the pictures.You can change that, if he is willing, by written contract, but it is a very unusual photographer indeed who will agree to that.

 

Wait!Does That Mean I Canít Publish My Own Pictures?

 

††††††††††† Yeah, pretty much.The photographer owns them, and owns the right to control publication.To publish them yourself, you need a usage license from the photographer.You may already have one, and him not know it, depending on the nature of the shoot.See the separate article on usage licenses.

 

OK, we got the hard legal part out of the way.Now letís try to explain how all this applies to modeling.

 

If you are an agency model on an agency-booked commercial or editorial photo shoot, you will probably bring along a voucher.The voucher has several things in one document:it is a record of the time you worked, the rate you are getting for it, how much money you will get for usage of the images, and who is paying.It also contains a brief Model Release.Most sophisticated commercial clients are used to agency vouchers and accept them as granting the release they need, but sometimes they provide releases of their own.They want to make sure that they are legally covered for the way your agency has contracted for them to use the images.Normally your agency will want to see and approve the client release before you sign it; they may even sign it for you.

††††††††††† If you arenít on an agency-booked photo shoot you still may be asked to sign a Model Release.Sometimes no release is necessary or appropriate; other times they are mandatory.You need to know which is which, and why.

 

When Do I Need To Sign A Release?

 

††††††††††† Short answer:whenever the photographer or client says, ďIf you donít sign a release, we will not use you.ĒThen you have a decision to make:is the pay you are getting, or the pictures, worth the rights you are being asked to give up?

††††††††††† For some shoots, such as a test shoot with an agency photographer, it is customary for no release to be signed.It is also customary for each of you to be able to use the pictures for self promotion without any signed documents.

††††††††††† For commercial shoots, where there is a product being advertised, a release is absolutely necessary.It is a foolish photographer/client who will shoot you without requiring one.Get used to it.

††††††††††† In the middle, where there is no client and no intent to advertise anything, a release may or may not be required.Some photographers will never ask for them as a matter of policy.Others will always ask for them as a matter of policy.What actually gets signed, if anything, is a matter of negotiation between you and the photographer.There are no rules or customary answers.If you canít agree before the shoot, donít shoot.

††††††††††† Even when ďa releaseĒ needs to be signed, what it says is negotiable.Releases donít have to be (and in commercial work, generally are not) the ďyou can use it for anything anywhere foreverĒ type of general release that many photographers like to use.You can, if the photographer or client is willing, negotiate any kind of restrictions as to type of shot, where and how it is used, and when it is used.

 

Should I Sign a Model Release to Protect Myself?

 

††††††††††† No.A modelís release never protects you.Never.Thatís not what itís for.Itís to protect the photographer and his clients.Not you.

Some photographers put all sorts of things into a document and call it ďa model releaseĒ.That doesnít make it one.It makes it ďa documentĒ, which may or may not be a contract, which may or may not be binding on the photographer, and which may or may not protect you in some way.This and this are not ďmodel releasesĒ even though they contains them, any more than this is a picture of a cigarette lighter.It is something else, which is mislabeled.

As a general rule, you can assume that any document that isnít signed by the photographer or client does not protect you at all.

 

Should I Have My Own Model Release?

 

††††††††††† Why?You are always better off if no model release is signed.Donít go bringing one along and forcing it on the photographer.If he doesnít have one for you, thatís a good thing.

††††††††††† There can be one case where it would be useful to have a release of your own:when the session clearly calls for one, the photographer knows it, but doesnít have an acceptable release of his own.In principle, you can say, ďHere, use mine,Ē and the problem is solved.If itís really because the photographer is clueless and needs your help, you can give him a release that says what you and he need it to say.But more often, the photographer will have a release of his own that you donít like, and he wonít be willing to sign yours.Doesnít hurt to ask, I suppose, but itís not likely to work.

††††††††††† Never sign two releases.Having two different documents running around with different provisions is just asking for legal trouble.If a release is needed, make sure it is the kind that is needed, and sign only that.

 

But the Release Says I Get Paid.What If I Donít?

 

††††††††††† Aha!You think if the photographer (or client) doesnít pay you, the release isnít valid.Good thinking, but itís probably wrong, unless it is specifically written that way.Most agency vouchers are written that way, most releases written by photographers are not.In fact, the more astute clients donít put details about payment into the release at all.

††††††††††† The most likely thing is that the release will remain valid even if you arenít paid.At best, the amount specified in the release, if the photographer or client publishes the pictures and relies on it, will be a kind of indicator of what you are owed for it. So that means you canít make them stop using the image, but you may be able to sue them for that use.

 

Can The Photographer Do Anything He Wants With the Pictures?

 

††††††††††† What a photographer can do after you sign a release depends on what the release says, and on state law.Some releases are very broad, and let the photographer use the pictures in a wide variety of ways, in a wide variety of publications, forever.Other releases are very narrow, and restrict him (or his client) to only one type of publication, for a limited duration and geographical area.It all depends on what you negotiate.Regardless of what people say, even though there are some releases that are commonly used, there is no such thing as ďa standard releaseĒ.

 

Can a Photographer Put My Pictures On His Website?

 

††††††††††† Without a release?Maybe.Almost certainly not in some cases.Almost certainly yes in others.And it depends on where you and he live.

††††††††††† If a professional photographer shot nude pictures of you in his studio, and promised nobody would ever see them, in most states he can be sued for invasion of privacy or right of publicity even if they are used just for his ďself promotionĒ.

††††††††††† If an amateur photographer, who doesnít charge for his services, shoots clothed pictures of you in a public place and uses them on his website as an example of what he has been shooting lately, he may have the legal right to do that in most states.

††††††††††† In the middle there is some grey area.A photographer may believe he has that right, whether he really does or not.If it concerns you, you need to discuss it with him before the shoot.

 

Can He Put My Head On A Naked Body?

 

††††††††††† Before we get to that as a matter of law . . . why would he want to?This question seems to be the biggest concern about releases, and the least real danger from a photo shoot.†† Digital photography has made it possible, but not easy, to make reasonably convincing composites of one personís head onto anotherís body.Sometimes you see it where a celebrity is involved.The number of times it is done to a non-celebrity is pretty close to zero.Thereís just no reason to do it, when nude models are so easy to find.

††††††††††† When it happens, itís almost always done by someone else, not the photographer, and not with permission from the photographer.So then itís illegal in any event; signing a release had nothing to do with it.If some image thief is going to do it, the release wonít matter.

††††††††††† Now, as to how that applies to the question:even for very broadly written releases, the law may restrict what can be done with your pictures.Usage that was clearly outside what was intended by the parties can be found a violation of your rights, even though the release may seem to authorize it.Thatís why, for instance, companies that want to use models for sensitive products like AIDS or herpes medications will normally ask for a release in which the model specifically acknowledges and authorizes that use. And thatís why photographers wonít generally do anything stupid with your pictures, even if they have a release.

 

______________________

 

***Disclaimer***:The author is not a lawyer, and even if he were, he wouldnít be licensed to practice in every state in the union.THIS IS NOT LEGAL ADVICE.It is intended to sensitize you, and to generally explain things you need to be concerned about.If you have specific problems, consult a specialist in Entertainment Law in your state.

 

This article applies to the United States only.Other countries have different laws.In some cases (France, for instance, and Quebec in Canada) photographers are much more limited in what they can do without releases.In some countries (the UK is an example) photographers and clients have a great deal more freedom in how they can use your pictures.Your mileage may vary.

 

Throughout this article, models are referred to as females, and photographers as males.We know that there are male models and female photographers, but we are playing the odds.Get used to it.

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