Running a photography business can be complex. Why would you need a model release? I mean, after all, you own the copyright to the images, that means you can do whatever you want, right? No, actually it is unlikely you have completely free rein. Let me ask you some questions: Do you use images of clients or otherwise identifiable individuals in your marketing and advertising? Did those clients or individuals sign a model release? Are you certain you are not infringing on their right of publicity? Are you also certain that you are not infringing on others’ privacy rights?
These are just some of the reasons why it is important to understand what a model release is and when you need to make use of model releases within your photography business. This is about educating yourself so you can protect yourself and your business!
What is a model release form?
A model release signed by the subject of the photograph (or in the case of a minor, the parent or legal guardian) gives the copyright owner permission to publish the photograph as defined by the release. Releases typically include use for portfolio, marketing and advertising, and other commercial uses. This also releases any claims the model may have to future compensation for use of images.
How is this different than a copyright transfer document or print release?
A copyright transfer document (often a clause in a contract) transfers ownership of photographs from photographer to client. You may want to discuss either copyright transfer or a commercial license with your photographer so that you can use images they have created for commercial purposes – like your website or printed out and displayed in your storefront. Print releases provide clients the permission to print digital files within the restrictions listed within the release while the photographer retains ownership (copyright) – this will generally not be sufficient for your use within your business.
Model release basics.
A model release typically includes stipulations and restrictions including the session from which the images come from, limits on how those images are to be used in the course of business and any payments the model may receive for this use.
While you, as the photographer, don't have to require that a model release is signed in order to do the photography session, you will need a model release to use those images in marketing or advertising - including your portfolio.
The connection between privacy and model releases.
Use of the images may infringe upon privacy protection laws for a client when images were taken in a private photographer/client relationship. There are a variety of laws that provide protection privacy to the client – on federal and state levels – that apply even where images were taken in a commercial photographer/client relationship.
The relevant law is called The Lanham Act. The Lanham Act is a federal law and applies throughout the United States. Section 43(a) provides:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
On a state level, each individual state has its own breakdown of privacy laws. Refer to your local state laws for reference.
In short, you must have written permission from the subject of photographic images to connect their image with your business – as an affiliation, in commercial advertising or promotion.
When should I have a model release signed?
If you facilitate or participate in a photography session that is a private contractual relationship and the intention is to use the pictures on a website, portfolio, or any other marketing avenues. When in doubt, get one in writing.
What if you are the one being photographed?
Remember that if you are being photographed, then it is highly likely the other photographer will request for you to sign a model release so they can include images of you in their promotion and advertising or portfolio.
Remember also, that while you may feel like you and your business are one, if you have a disregarded entity – a limited liability company or a Corporation – you will need to sign a model release personally that allows for the company to use your image in marketing and advertising. Why? Because this is another way of making it clear that you see the company as a separate entity from yourself (read more about the corporate veil if you want to understand why this is important). It is also important to consider how these images might convey to the business! A clear paper trail is important!