Model Release for Barely Recognizable Figures

Just shot a whole bunch of photos at the beach. I have two or three shots of lifeguards on duty. The people in the photos are barely recognizable. Pretty much in profile. Mostly in shadow/backlit.

From my college classes in civil liability, I learned that the rule of thumb for publishing/selling photos is based on whether or not the person is recognizable from the picture. To me, this seems like a gray area.

I suppose, if you know who the person is, you could compare the photo I took to the person's actual likeness and make a connection but, if you don't know the person, you probably could not pick him out of a lineup.

I think I'm going to go back to the beach and talk to the Head Lifeguard. I know him because I used to work with him, many years ago, as a lifeguard on that beach. I am planning to make small 4x6 postcard sized prints and have him give them to the lifeguard(s) in the pictures and ask for a release.

My rationale is twofold: First, it covers my ass. Second, it helps me establish myself as a photographer who plays it by the book.

I just wonder whether I'm worrying about minute details too much.

What do you think?

If your aim is to cover your liabilities, I'd go ahead and get the release. That way, you are covered even if the said person makes a far flung claims. On the other hand, if it's barely recognizable, meaning it cannot be clearly identified and the person in the photo was incidental, not the main model, I personally wouldn't bother.

Ah... the picture helps. I bet, if these images made to a gallery, the "models" will bring friends and proudly point out that the image is his/hers. But, if the image made it to an auction and fetch 10 million dollars, he/she will claim they are entitled to compensations....

I'd get the release.

I think that you are worrying about minute details too much.

Jeff

You don't need a release for those photos. I don't think anybody could recognize those people.

What are you going to do with them anyhow?

Is a model release form necessary when photographing in a public place?

Thomas Bertilsson said:

Is a model release form necessary when photographing in a public place?

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Model releases are important, regardless of the setting, if you are going to make "commercial" use of a person's image. Definition of "commercial" is not intuitive. My understanding: Selling gallery prints or editorial use (newspaper, magazine, books): not 'commercial.' Advertisement: 'commercial.' Postcards? Dunno. Calendar publishers like to see releases.

If they're in a public place and they are not the subject of the photograph then they have no reasonable expectation of privacy.

If the people are incidental to the photo and if there is no question about endorsement just because they happen to be in the photo, then a model release is not really necessary. [I'm not a lawyer].

Ultimately it may be the art buyer at the other end who requests a release or not. So it could conceivably cost you a licence sale or two.

Expectation of privacy and permission to use one's likeness commercially are two separate things. Releases have to do with the latter, not the former. In a public place, you can take a stranger's photo till the cows come home. You can put the prints in a gallery, book, or newspaper, and even make a profit off of their sale in these venues. But you may not make a billboard to sell milk out of the photos.

Release or no release doesn't have to do with where you are photographing. It has to do with whether of not the images will be used commercially.

Prints in a gallery or fine art book do not need them, even if being sold, as they are art (photos that stand alone as photos), not commercial photos (photos that are used for the purposes of selling/promoting something else).

News photos do not need releases, as the photos are considered as being in the public benefit (i.e. educational/informative).

When you need them is when the images will be used to sell something else, not the photographs themselves. That pretty much defines commercial use. Releases basically allow the person's likeness to be used to make money selling something other than the likeness itself. They say, "You can use my recognizable image in perpetuity to sell whatever you want."

But people don't need to give you permission to put their mug in a newspaper or gallery, or to use their likeness for any other purposes where the point of the photo being published is for the sake of the photo itself. It is when you use a photo as a tool to sell something other than the photo itself that it becomes commercial.

You need property releases as well, for recognizable properties. For instance, you cannot sell a stock photo with a Disneyland ride in the background. (And they will come after you. They came after the children's hospital where I work for making Mickey mouse head waffles for the sick kids.)

Thomas Bertilsson said:

Is a model release form necessary when photographing in a public place?

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For commercial use, yes. Even in a place where there is no reasonable expectation of privacy.
Now define commercial.

If someone is recognizable as the OP states you cannot use the photo to endorse a product without a release. This is fairly straight forward.

For "editorial" use you are generally okay.
Notice how I used the words editorial and general.
This is a much grayer area.

Hope I cleared that up

I'm planning to make postcards out of them. There is a shop a few blocks away from my house. I was talking to the owner and we thought handmade photo cards of stereotypical scenes of the area would be nice to sell. (Presque Isle, etc. -- http://en.wikipedia.org/wiki/Presque_Isle_State_Park )

If I come up with a good image, he might want to sell framed prints.
The shop is full of digital pictures and he thinks "real photos" might sell. The owners wife thinks black and white is artistic.
If things go well and I can make some good photos that they like I might be able to sell a few.

Thus, the CYA.

But I think I'm going to let these pictures slide on the release.

They were taken on a public beach during daytime hours when anybody could have walked out there and saw the same scene with the naked eye. Dozens of people float around the beaches with cameras and binoculars, etc. Unless I was using a zoom lens to home in on some chick with big knockers, wearing a bikini there is no expectation of privacy. (For example.)

Getting a release where it's not needed might actually cause more trouble than it saves.

Randy-You've gotten some good advice and some bad advice here already. Hope you can tell the difference!

^Yes, this is always a hot button issue.
Internet is probably not the best place to get this sort of advice.

How about this?

I am planning to go talk to the Head Lifeguard anyway. I took a couple portraits of him while he was on-station. These pictures I do not plan to sell or distribute outside of my Flickr page. Just out of friendship, I am going to take him a postcard sized print, anyway.

What do you say I take him his picture and bring along copies of the two pics I am planing on selling?
I show him the pics. Ask him what he thinks. If the guards in the pictures want copies, they can have them.

In the mean time, I keep a clipboard and a few blank model release forms in my car.
If I need them, I've got them close at hand.

It can never hurt to have a release that is not needed. But I would not stress over it. The people are not recognizable, especially in a post-card size. Furthermore, you can make them more silhouette-like by raising the contrast (which I would suggest anyhow, in a subjective aesthetic sense).

If you have a newer phone there are apps for model releases.

There are two reasons why model releases are a good idea:

1) they prevent claims for compensation in circumstances where compensation are appropriate, and
2) they make it much easier to sell or otherwise use your work commercially, even if the photo itself doesn't create a circumstance where compensation is appropriate (e.g. un-recognizable subjects).

The second situation is the more problematic - it doesn't do any good arguing with someone who won't buy your work because they (erroneously) think there needs to be a release.

I wouldn't bother with a release. The chances of people recognising themselves are close to zero and even if they do, the chances that they will even consider doing anything about it are also almost negligible. If you look at postcards for sale of normal tourist places you will see that many have people in them of a similar scale to yours where they are in the scene but are not the subject. I doubt that the postcard manufacturer has releases for any of them.

Worker 11811 said:

Unless I was using a zoom lens to home in on some chick with big knockers, wearing a bikini there is no expectation of privacy.

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Let me know when you start selling those!


Steve.

It'll help for caption writing and for your eventual book to know who the lifeguard is.

What comes to mind for me is the story about Edith Shain, the woman kissed by a sailor taken by Alfred Eisenstaedt.

Here's hoping your photos stir controversy one day.

Bill Burk said:

It'll help for caption writing and for your eventual book to know who the lifeguard is.

What comes to mind for me is the story about Edith Shain, the woman kissed by a sailor taken by Alfred Eisenstaedt.

Here's hoping your photos stir controversy one day.

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This is especially true for professional journalism work. Often times a photo editor will deem a picture unusable without the name of the subject/s.

Any lawyers on deck? If not, then pay for some advice.

Generally speaking, a postcard is not considered commercial use. I sell stock photographs through agencies, and postcards are not considered "commercial" as far as can see. (You easily recognize commercial use by the price tag in the Rights Managed licensing model).

The grey area is book covers: do they promote the book? In case of a postcard, the buyer is buying a picture itself. Calendars are also, as far as I know, considered not commercial. Mind you, there are such things as commercial calendars (Playboy comes to mind for some reason), and commercial postcards (such as those promoting hotels, fairs etc.). I'm talking postcards and calendars without logos or promotional writings.

I would not be sure, in both cases, that the person is "incidental". In both pictures there basically is one person and a prominent sign "Guard on duty", and it is implied that the person portrayed is said guard on duty. So I would say that it could be argued that both persons are actually the subject of the picture, and that - stretching the concept a little bit - might be considered to fall within the ritratto ambientato genre, the "portrait of a person in his environment".

If the person was recognizable that in my opinion would require a model release for commercial use. What would make the situation different is if the person is not recognizable but again, if the commercial use is made in an environment (such as an hotel nearby) where the image would clearly recall the person and make a clear and understandable personal reference to him, even in silhouette, that would be another matter.

In short: according to my understanding, you don't need model release for non-commercial use, that's a general rule;
commercial use of these images is a bit of a tricky situation and the need of a model release cannot be totally excluded.

Something that is often overlooked is that the person might feel entitled to compensation if a non-commercial use is made of a picture which damages the reputation of the person.

If one year there is an abnormal number of deaths among Californian beach-goers, and a national scandal erupts about how ineffective are life guards in California, and a Californian newspaper writes an article entitled "Why do we have the worst life guards on earth", and a life guard is depicted like in this case, recognisable by his pairs, parents and friends, and the assumption might be made by some readers that the life guard portrayed is actually one of those who are accused of scarce behaviour on duty, then the person might actually sue because his reputation has been tarnished within his social environment.

All this is of no big interest to the photographer who is not a publisher. The photographer clearly states that he has no model release. The publisher evaluates the picture, the circumstances in which it is published, he gets the profits, and he pays the compensations if any.

Just got back from the beach. Spoke to the Head Lifeguard. He agrees that all but one of the pictures does not need a release because the person is not recognizable. The one pic of the girl guard standing on the ramp of the guard platform (the second pic) is a "maybe" so we'll ask her for a release just for good measure.

I gave a 4x6 to everybody I took pictures of and told them what I was planning. They were all happy to have a picture of themselves and thought it was a great idea.

I left the release at the guard shack and it'll get passed on to the person in the picture at the end of the day's shift. I can pick it up tomorrow.

........so what about "street photography" where the people are almost always recognisable? The law is probably different in the US to the UK but I have no intention of running around getting model indemnity forms signed by all the bystanders on the streets where I shoot.

Paul-

as previously stated, the big question is your intended use of the street photos. If you are hanging them on your own wall, or hanging them in a gallery and selling prints, not needed. If you are licensing the use of the photos for advertising purposes, then you do need them.