When photographer John Rutter, back in 2005, offered actress Cameron Diaz first refusal on pictures that he had taken of her topless as a teenager, he was already in legal trouble. It wasn’t just the alleged blackmail that would land him in court, it was the perjury of claiming that the signature at the bottom of the model release form was genuine. The signature was a forgery (although Rutter denied that he had forged it himself.)
For most photographers that sort of legal trouble isn’t a worry. Don’t go blackmailing celebrities or forging release signatures and you can avoid it. But when it comes to photographing people, the law is still a concern. When do you need a signature at the bottom of a model release form and what can you do with an image that doesn’t have one?
As Dan Heller points out on his exhaustive account of the model release form (which also includes a paragraph-long sample form that you can use), you don’t need a release; the publisher does. You can take as many pictures as you want; permission is only required when the picture is used, and it’s required by the person who uses it, not the person who took the picture. So if you photograph of a woman in the park, don’t ask her to sign your release and sell it to a buyer who puts it on billboards across the country, she might sue. But she’d sue your buyer, not you.
Of course, your buyer would then turn to you and say… well, what he’d say would depend on what you told him. As long you’ve told him that you don’t have a release form there’s nothing he can say. He’s in trouble, not you. But if you tell him that, there’s a good chance that he won’t buy the image.
Which is why it’s a good idea to get your model release forms signed whenever possible.
In practice, that’s not as difficult as it sounds. The bulk of the people photography that you do will be with people you know. It could be of friends, family or professional models who are being paid to sign your release. Those shouldn’t be a problem at all, although it might also be good etiquette to let people close to you know when someone is interested in buying their image.
But there will be times when you take pictures of recognizable people in public spaces and when it’s not practical to get a model release form. Photograph two people kissing on New Year’s Eve in Times Square, for example, and they might be too busy to sign your form. (They could also be too drunk for the signature to mean anything.)
That doesn’t mean the image is useless though. You can still use the image to illustrate your website (although you can’t sell it to someone else to use on their website). You can place it in an art exhibition. You could sell it back to the couple (if they wanted to buy it). And because editorial images need no releases at all, you could also sell the image to a newspaper or magazine.
The bottom line then is that a model release form gives you the ability to sell images to buyers who want to use them in commercial contexts, such as advertising. That’s a big, additional market for your pictures. Provided you always tell a buyer whether or not you have a release for that image though, you should always have legal protection.
[tags] model release, model releases, photography legal issues [/tags]