Model Release for Barely Recognizable Figures

[Steve Smith]

Just to clarify (as you asked about U.K. use). The comments above apply equally in the U.K.


Steve.

 

[Monito]

I am given to understand from a UK specialist in copyright and intellectual property law that in the UK a model release can act to restrict the rights of photographers. That in the UK, you don't need a release for even commercial use. You have to pay more attention there to other privacy rights than in North America, so no street photos of people exiting medical clinics (a case was won against a newspaper on that point).

 

[Steve Smith]

You don't need a model release to use an image in any way at all. Like a contract, you only need it to clarify the situation if something goes wrong. If there are no problems, no one will ever need to see or refer to either.

However, most publishers and agencies will want to see a release to cover themselves.


Steve.

 

[Diapositivo]

I am given to understand from a UK specialist in copyright and intellectual property law that in the UK a model release can act to restrict the rights of photographers.

A model release can state that the model agrees to be paid by royalties (out of the photographer's share).

A model release can limit the possible usage of the picture. For instance the model can state, in the release, that the image cannot be used to promote the tobacco trade, the fur trade, the weapon trade etc.

The model can also state that the picture cannot be used in a defamatory way, but this is often considered implicit, a "defamatory" use would require a specific release.

I don't know if the person meant that. That is something that as far as I know is true in most countries, I don't know what the specific laws in the UK would be, I'm actually quite interested in knowing better the specificities of the UK in this regard.

 

[Mr Man]

Not sure if it is good form to revive old threads but I stumbled cross this one the other day, while waiting for some prints to wash. At the time I pretty much agreed with the advice that had been given, basically that if the person in the image is unrecognisable then there is no need for a model release. At about the same time Twitter were using an image on their front page of three guys in India playing cricket with the Taj Mahal in the background. It was a colour twilight shot with the cricketers in shadow, but not total shadow their bodies were probably rendered at about zone 3, and their heads had been burned in to total black, rendering them unrecognisable in terms of a model release. I thought nothing more about it and considered it fairly standard usage of a captured street image. Fast forward two weeks. I wanted to upload a video to You Tube, now part of Google, for my girlfriend I did not have a You Tube account but I did have a Google account which I use to manage both our websites Google presence. I used my Google user name and password to login to You Tube and I logged in but was asked to confirm some additional details that I had not been asked for on any previous use of my Google account. I entered false information as I don't think the requested information was any of Googles business and I had been perfectly capable of running the account for the last three years without Google having that information and it was just part of a great data mining exercise on Googles part. The information I entered was that my year of birth was 2012. Google immediately locked my account as it rated me as being under-age to manage a Google account and demanded that I send my credit card details or post them some government backed ID before they would unlock my account. I cannot now manage my, or my girlfriends, web presence, thankfully I don't use g-mail as my main e-mail account but I am bloody furious with them and will not use their services again. So what has this got to do with the OP? Google, Facebook, Twitter and the rest are now vast global corporations. The image used by Twitter may not have been recognisable to the majority of the global population but it would have probably been recognisable to the people involved in the image, “Remember that day we were playing cricket and the tourist with the expensive camera stood about taking pictures?”. You can picture it now, it is sunset you are in an Indian suburb near the Tag and you see some guys playing cricket great shot you think and take it. You post it to one of the online stock sites with the faces suitably burned in to avoid the need for a model release. If I was one of the guys in the image and that image had been used to promote a vast global entity while I was being denied access to that entity I would be livid. I know you will say Twitter is not Google or Facebook but all of these organisations operate on the same model of data mining their users. How would you feel if you found yourself promoting an organisation you were morally opposed to even if most of the rest of the world didn't know it was you? One further thought, I used to be involved in events tat were sponsored by Microsoft. Mine was a technical role and I am not an Equity member ( the UK actors union). On one event Microsoft had employed a film crew to film the event for promotional usage, this had happened on a couple of occasions and generally didn't involve me. On this particular occasion the director swooped down and announced that someone would hand me a memory stick and I would put it in the computer (a mac) and they would recreate the download. I pointed out that I was not an actor and did not want to be in their promotional video because I did not agree with Microsofts licensing agreement “But It's going to be viral” (something to do with the internet) they said. I repeated my stance and after the ten minuets it took them to get their heads round the concept that someone may not want to promote their products, especially without being paid, it was decided that the sound engineer would play my part.

Now I don't want in any way to stop photographers, professional or amateur, taking photographs of anyone in a public place. But I do think that in this day and age we need to think more carefully than ever what we do with those images. Personally I find it hard to photograph someone without there explicit consent such as in a formal portrait, or hiring a model to get a shot, and even then I wrestle with my interpretation. But that's just me.

One very last thaing http://www.duckduckgo.com/ not google for untracked surfing

 

[cliveh]

It took Weegee nearly three weeks to get those forms signed for this one -

http://cache2.allpostersimages.com/...rs/fellig-arthur-weegee-coney-island-1945.jpg

 

[Diapositivo]

Now I don't want in any way to stop photographers, professional or amateur, taking photographs of anyone in a public place. But I do think that in this day and age we need to think more carefully than ever what we do with those images.

In most of the world, as a general rule, you need a model release when you publish an image for a "commercial" (promotional, as in "advertisement" of a product or "endorsement" of an organisation etc.) purpose.

If the purpose is not commercial no need for model release.

The three guys in front of the Taj Mahal could have been published in a travel guide, a magazine article featuring cricket in India, or whatever publication without need for a model release.

In general is the publisher who needs a model release. The photographer merely takes the photograph. He's not responsible for the usage. The publisher is responsible and knows the laws of the countries where he publishes.

"Fine art" reproduction is not publication and does not require model release, either.

I give false data to internet sites as well (not this. Maybe). But never totally absurd. Google felt obliged to lock your account due to some norms or to defensive behaviour.

It's a bit like those internet site selling vodka where you have to declare that you are above 18. They have no way to know, but if you say you are 5, they will not let you in for the very good reason that they asked you that question not because they really care, but because they don't want to be accused of not caring

 

[Mr Man]

It took Weegee nearly three weeks to get those forms signed for this one -

http://cache2.allpostersimages.com/...rs/fellig-arthur-weegee-coney-island-1945.jpg

Didn't he have an assistant?

If the purpose is not commercial no need for model release.

I agree, but in this case the image IS comercial and I don't think the photographer asked the subjects permision he just darkend their faces to comply with the "general rule" thinking that some poor workers from the slums of India are never going to have the finance to sue him in a US, UK court over the issue

The three guys in front of the Taj Mahal could have been published in a travel guide, a magazine article featuring cricket in India, or whatever publication without need for a model release.

Yes they could and in all of those instances there would have been no need to black out the faces of the subjects.

The photographer merely takes the photograph. He's not responsible for the usage.

Absolute balderdash. If you post your images to a legitimate stock library you should have researched their clients before submission. If you submit to a legitimate stock library they should not have used this image in this context without a release. If posted to a web library you should have more ethics as a photographer. You decide where your images are used by your choice of library.

It's a bit like those internet site selling vodka where you have to declare that you are above 18.

I don't think so. If they really thought I was less than a year old (despite the fact I had an account for over three years) they could have e-mailed me to confirm my already submitted details. They do not need my credit card details or national insurance (social security) No. for these purposes

 

[ME Super]

Vague information

Where possible when signing up or editing my information on Social Media and non-commerce (e.g. Facebook, APUG, videohelp, etc.) when asked for location information, most of the time I give correct but vague information. For example, on here, my profile says I am from Central Illinois. That is correct information but does not drill down to the city level (if someone gets my city information it's easy to find me because my town is very small and everybody knows everybody). On Facebook, my location is given as "<name of county>, Illinois." Again, correct but vague info. I've also been known to give out-of-date information (putting in the name of a town I used to live in).

Obviously for sites I am on where I am buying items, the billing address has to be correct, and if they're shipping something to me, that has to be correct too, but otherwise they don't need enough info to be able to find me in real life.

 

[Prof_Pixel]

If you are going without a model release, you need to answer the question Clint Eastwood asks in the movie Dirty
Harry - 'Do you feel lucky?'

 

[Brian C. Miller]

Hmmm, Gary Winogrand ran into a problem with one of his books because he didn't have a model release, and there was a "recent" case of a guy with a hidden 8x10 camera photographing in subways who was sued. (I remember the photograph, but not the photographer.)

If in doubt, photograph in some other city, and then display the photograph in your locality. Therefore, the likelihood that the people photographed will see themselves is greatly reduced.

 

[Diapositivo]

Absolute balderdash. If you post your images to a legitimate stock library you should have researched their clients before submission. If you submit to a legitimate stock library they should not have used this image in this context without a release. If posted to a web library you should have more ethics as a photographer. You decide where your images are used by your choice of library.

[...]

I don't think so. If they really thought I was less than a year old (despite the fact I had an account for over three years) they could have e-mailed me to confirm my already submitted details. They do not need my credit card details or national insurance (social security) No. for these purposes

The first period is total nonsense. When you give an image to a stock library (don't know what you mean for "legitimate") you have no idea who is going to license that image and for what use. The number of possible clients is in tenths of thousands or more, and even if the agency had only 5 clients, you wouldn't know what they would use any image for. My agencies sells images to anybody. Even specialist agencies sell images to anybody, they are specialist as far as the subject matter they represent, not as far as the clients are concerned. And no, no photographer on the world researches the clients of an agency before submission. That's absolute bullstuff. Clients are many thousands and can be added any day. The photographer is not responsible for the usage or he would not take pictures of anything but flowers.

The agency does not use the image, it licenses it for a certain use. The same image can be used for "commercial purpose", for "editorial purpose" and even for defamatory purpose without the photographer being aware, or really care. I don't care at all what a client does with my images because it's entirely his business. If a person smiles in front of my camera in India (I am told people actually come in the frame in India, voluntarily, for the pleasure of it) so be it. The Taj-Mahal will be published with that person in front of it.

If you are a knife producer you sell knives. The fact that people can commit suicide with them is not relevant to you. Nor to the distributor. Up to a certain extent it is the business of the last shop. If the client says "I need a knife to commit suicide" I see your point. The knife producer is totally above all this reasoning. What he cares, is that his knives cut. What I care, is that my image work.

I also don't know what you mean for a "web library". If you mean something like Flickr, it's perfectly legitimate to post there the guys playing cricket with the Taj-Mahal behind them. I mean, the guys playing cricket are a perfectly legitimate subject to post also without the Taj-Mahal behind them.

If Henri Cartier-Bresson had his head full of all this pseudo-ethical mental masturbations he would never had printed anything. What is out there in the road is out there to be photographed, be it the Afghan girl or the "Cariatids".

In general may I advice you to refrain to try to teach "ethics" to other people on the net because some people gets easily pissed when somebody wants to teach them ethics and I count myself in that number.

Regarding the second statement, I inform you that firms like Google or YouTube have an immense number of users. There is nobody who is dealing in person with your case and is bothering to contact you just in case you inserted your birth date wrong, and ask you for a clarification. All this administrative work is done by computer. Your expectation to give your age as a minor (1 year is a minor) and then expect them to contact you to ask you if you really are 1 year old seems very odd to me.

 

[TheFlyingCamera]

In regards to stock agencies, most of them will not accept images of people without releases. Regardless of whether or not they take unreleased images, most of them will have a save-and-hold-harmless clause in their contract with the photographer (and with their clients) that says they are not liable for any damages or fees resulting from lawsuit. So if you the photographer submit an unreleased image, and say, Marlboro tobacco buys it and uses it in a global advertising campaign, and the poor joe schmo from Mumbai whose photo you used sees it, hires a lawyer and sues the pants off of you, the people on the hook are Marlboro tobacco and YOU, the photographer. And Marlboro probably has a clause in their contract somewhere that protects them from liability. So it falls back on YOU, the photographer. Long and short of it, if you're selling images to a stock agency, GET A RELEASE, even if the agency doesn't require one. The damages from a suit like the aforementioned hypothetical Marlboro ad would run into the millions. Which you don't have.

These days it's easier than ever to get a release. They have model release apps for mobile devices now which will accept digital signatures via the touch screen, can integrate photos of the subject into the release so it makes it hard for a subject to say, "I never signed that - it's not me", and will even email a PDF of the signed release to the subject.

 

[Diapositivo]

So if you the photographer submit an unreleased image, and say, Marlboro tobacco buys it and uses it in a global advertising campaign, and the poor joe schmo from Mumbai whose photo you used sees it, hires a lawyer and sues the pants off of you, the people on the hook are Marlboro tobacco and YOU, the photographer.

By all means no.
When I give an image to an agency, my agency (any agency) asks, and I say, whether I have a model release, and whether I have a property release.
If this information I give is correct, it's end of responsibility for me. You final client can license that image, knowing that it has no model release.

I repeat that as a photographer I cannot know who the final client will be and what is the usage. This is something that only the final client, and the agency, know.

(Most agencies will actually not disclose the final client to the photographer, for fear the the photographer contacts the client directly and tries to do business with them in the future cutting out the agency. So the photographer "never" knows the actual final user unless he discovers who he is by himself).

If you browse any stock agency you see that for any image it is indicated whether a model (or property) release is available. Those are indicated as MR or PR.

If you - the final client - know that you are going to need a model release for the image you ask the agency a copy of the model release so that you check that it is compatible with your intended use. This is precisely a responsibility of you as final user. Every agency allows to browse with filters excluding unreleased images.

If, for instance, you are Marlboro and the model release is present but states that the image cannot be used in the tobacco trade, then it is your responsibility to check that. In this case a case can be made that the agency is responsible as well. The photographer is obviously free of responsibility because he's never asked whether the image can be licensed to Marlboro.

I have never seen a case where a photographer was sued for violation of model release (or lack thereof) for an image given to an agency. The photographer is certainly responsible if he licenses the image directly to the final client and if the contract (which is signed between photographer and final client) states a usage which goes against the model release, or requires one. The photographer is certainly responsible if he declares the false (if he counterfeits a MR for instance).

I have many images with people and no model release. I declare I have no model release. They are perfectly fine for editorial use in most countries.

People who publishes image is not dumb. They perfectly know that they need model release if the purpose of the publication is commercial. Marlboro wouldn't use an unlicensed image for an advertising campaign.

As a further note, the agency trusts the client. If the client declares that he's going to use the image for a travel book, and accordingly signs a contract, and then he uses the image to promote the travel book (which is a commercial usage) he is responsible toward the model, toward the agency and toward the photographer for copyright infringement.

The agency is in no obligation to check if the final client actually says the truth. The agency is responsible only for their own deed, just like anybody.

 

[Diapositivo]

In truth it must be said that the great ignorance of the general public (not of publishers, or Marlboro) regarding this matter has created a climate in which typically microstock agencies, which typically license to unprofessional buyers (for their blogs, for an intranet, for an office presentation, for a photograph to be hung in a restaurant or barber shop etc.) tend to ask a model release for every image containing a person.

Microstock agencies typically license only with the "Royalty Free" contract (RF). A "Royalty Free" license leaves the user free to make any use, and repeatedly so, within the terms of the contract which are generally quite ample and able to always cover the needs of the small firm.

A Rights Managed (RM) contract, instead, only licenses for a single specific use which is described in the contract.

A RF contract, for this reason, never states which is the licensed usage, because the usage is "open ended". What the industry relies on is that the final client (who can be a very occasional picture buyer) understands the subtleties of copyright, licensing, RF vs RM, etc.

What can easily happen is that the final client of microstock agencies typically doesn't understand really how copyright works. This is pretty understandable as the matter is somehow complicated and unprofessional users (people who do not belong to the publishing trade, I mean) can easily misunderstand concepts and make mistakes in good faith.

So microstock agencies always ask for a model release and typically don't represent an image with a person (as a subject) if not released.

They do so because even though in theory it's the final client which is responsible for usage, in practice they fear that it is likely the client did not read, or understand, the fine print and in case a final user infringes the terms of use:

a) the judge might find the agency responsible for giving to an unprofessional user a dangerous weapon. You don't give knives to children and you don't license "royalty free" images to unprofessional users;

b) the entire industry, or the agency in any case, can be damaged by a wave of panic regarding how dangerous it is to buy RF images from microstock agency.

My main agency, Alamy, which is not a microstock agency, still wants a MR if the picture portrays people AND if it has to be licensed as RF.

If the image contains people, and it has no model release, the image can be licensed only as RM (Rights managed). This is the way agencies normally behave: they don't license as RF images for which a MR would be necessary for commercial use. They sell them, but as RM.

A RM license exactly specifies the usage so there is no possibility of breaching of copyright for which an agency (or a photographer) can be deemed responsible.

In the same situation a microstock agency would typically decline to represent the picture as they tend to only license with the RF scheme.

This situation creates the internet myth that the photographer is responsible for the usage of an image given to an agency. The photographer is responsible if he states the false, e.g. if he declares he has a MR when he hasn't one or if he counterfeits one. The only responsibility of the photographer is to say the truth.

It should be noted that MR can be "conditional" so the presence of a MR is not a "binary" case, yes or no. The final client must check the MR in its entirety. The agency must give the MR to the client in its entirety. Besides, a MR never covers defamatory usage. For that, an explicit MR is required in any case.

This case of defamatory usage for a "released" image is actually what I see on the internet brought in front of a judge. That is, again, because unprofessional buyers don't necessarily know how things really work. A defamatory usage can happen much more easily than people think. A defamatory usage would not be allowed in most jurisdictions also for editorial usage.

Marlboro, or multinational, big firms etc. never ignore anything and are never caught with this kind of problems. Besides, they would never use a RF image because by definition an RF image can be repeatedly licensed to many clients, you never have any kind of exclusivity of use and you cannot know its past, present or future usage.

 

[Diapositivo]

Further elements for discussion about model release.

I just read this:

http://www.petapixel.com/2012/08/21/this-photograph-earned-one-wedding-photographer-a-18000-payday/

Frankly, this is puzzling me.
The photographer certainly has the copyright for the wedding photographs he produces (unless his contract with the client states that all rights shall belong to the client).

But in this case a firm is using this particular "face" to promote their goods. I would bet that the firm should obtain a model release from the bride at the very least. And I would suppose that the cost would be higher than the one paid to the wedding photographer.

 

[Prof_Pixel]

Frankly, this is puzzling me.

Read through the 73 comments below the article for more information.

 

[Steve Smith]

And another reason why I would want copyright of my wedding images transferred to me if I ever got married again!


Steve.

 

[Diapositivo]

Read through the 73 comments below the article for more information.

Read them. Did not find any further information.

 

[Prof_Pixel]

Read them. Did not find any further information.

See for example:

John Mireles : I've been getting this question a lot on my blog. This sale happened awhile ago so I don't remember all the details. At any rate, I'm sure I advised the photographer to obtain a model release from the bride. My advise in this situation is to go back to the client and pay them specifically for the requested use so that there's no question that both photographer and client have permission to use the image. I would never recommend anyone to do a sale like this without express permission - I don't care what the wedding contract says.
Oh... and one point of clarification. The article identifies me as a consultant, but I'm actually a long time advertising and wedding photographer.

and

Guest: Model release is part of our wedding contract

and

Martin: If you look at any wedding photographer contracts, it states model release for whatever the contract states such as "marketing, advertisements, competition entry, portfolio, online usage, commercial, etc" If the clients read thoroughly and didn't agree, then they would have to arrange another contract of course.
Standard model releases aren't out of the norm to be in wedding agreements/contracts at all, so don't be surprised if you do find MODEL RELEASE statement on all wedding agreements.

Notice that the laws may differ in other countries.

Damian: For the argument on who "owns" the photo... I'm a graphic artist, I fix the photos not take them; however I was involved in a conversation with some photographers a while ago and it was rather interestingly brought up that in the U.S. professional wedding photographers own the photos they take - it's in their contracts. (Having a professional is way different than giving your third cousin twice removed a $100 digital camera.) However in Canada it's the reverse, the couples own the photos unless they sign them over. I heard it's actually the law in some areas of the country. Just an interesting note.

 

[Steve Smith]

I was involved in a conversation with some photographers a while ago and it was rather interestingly brought up that in the U.S. professional wedding photographers own the photos they take - it's in their contracts. (Having a professional is way different than giving your third cousin twice removed a $100 digital camera.) However in Canada it's the reverse, the couples own the photos unless they sign them over. I heard it's actually the law in some areas of the country. Just an interesting note.

The law in whichever country is the default position if it is not specified in the contract.

It can however be specified contrary to the default by a clause in the contract.

i.e. a contract in Canada can specify that the photographer gets the copyright or a contract in the US can specify that the customer gets copyright.


Steve.

 

[Diapositivo]

The problem I see is that when the generic "release" the clients sign specifies commercial use, portfolio use etc. it is, in my understanding and presumably in the understanding of the client and the judge, that it is granting right of commercial use relative to the photographer's commercial activity.

To be clearer: we have often seen wedding photographers putting wedding pictures outside of their shop. When a potential client enters the shop, the photographer will show them some specimen albums with wedding of other couples. If the photographer has a website in order to attract commissions, this web site will feature wedding pictures; if the photographer buys a page in the local newspaper, or places an advertisement in the local television, he needs to show his work by showing some weddings.

All those are commercial purposes that do require a model release. This release is normally given without problems and the "standard" release which is referred in the answers in my understanding of how wedding photography works refers IMU only to those commercial purposes.

I don't think that this kind of release, worded simply as in this text:
<<
If you look at any wedding photographer contracts, it states model release for whatever the contract states such as "marketing, advertisements, competition entry, portfolio, online usage, commercial, etc" If the clients read thoroughly and didn't agree, then they would have to arrange another contract of course.
Standard model releases aren't out of the norm to be in wedding agreements/contracts at all, so don't be surprised if you do find MODEL RELEASE statement on all wedding agreements.
>>

would ever work in this case as the couple will find themselves used to promote a different product. I don't think that it is customary to have bride and groom sign releases for "any" commercial product promoting "any" thing. That would be very strange. I have not seen this standard contracts but I imagine that they mean marketing, advertisements, competition entry, portfolio, online usage, commercial, etc of the photographer's business.

 

[Steve Smith]

I don't think that it is customary to have bride and groom sign releases for "any" commercial product promoting "any" thing. That would be very strange.

I would certainly never sign one. But as I wrote earlier, I would want all the rights assigned to me anyway.


Steve.

 

[Prof_Pixel]

Diapositivo,

We all know that laws and customs can vary greatly between countries, don't we.

 

[TheFlyingCamera]

The problem with that wedding scenario is probably a case of poor communication - the couple may in fact have given the photographer legal permission to sell the image on for commercial advertising purposes without realizing it, and the photographer never bothered to clarify their assumption that "commercial" meant more than just self-promotion for the photographer. When the couple read the contract (assuming they actually READ the contract instead of skimming it), when they got to the line about "commercial" they should have asked. And the photographer should have given them a straight answer to include the possibility of him selling the use of the images for advertising other products and/or services. Shame on both, but more on the photographer, as that's just shady. I would think that most of us photographers know that the consuming public has at best a marginal idea of copyright and contract law, and often has zero clue what any of that stuff means. Which is why so many people try to take their wedding proofs to WalMart to have copies made.