Engaging a client for a photography session is awesome as you’re able to execute your skills, create some art, provide images and make some money in the process.  However, something else comes out of sessions that is arguably as important as the money made from the transaction: the use of images for marketing and procuring new clients.  

In order for this to occur, clients within the confines of a private contractual relationship must sign a model release (accompanied by a photography contract).  A model release is a legal document signed by the subject (or in the case of minors, the parent/legal guardian) that provides the photographer permission to publish and use the photograph as defined by the terms of the release.  Model release language typically includes permission for use of photographs in portfolio, studio samples, blogging, website use, and other marketing uses.  

But what happens if a client doesn’t want to sign a model release?

 

What if a client doesn’t want to sign a model release?

model release can be waived by a client, but the photographer is then not allowed to use the images in marketing.   The refusal to sign a model release may not be the end of the relationship.  

Proposing a restricted release or allow waiving of the release can continue the client relationship. However, many business owners don’t want to allow clients to waive a model release and have to make a decision on what to do in those cases.

This is a decision for an individual business owner to determine what best suits their clients and is advantageous for their business. Considering a waiver can also lead to the question of whether a client should be charged for this loss of marketing opportunity.

 

Can I charge a client for not signing one?

In an attempt to compensate the photographer for the marketing opportunity lost, business owners may opt for a charge to be added to the client’s monetary obligation. Barring any state laws stating otherwise, you can charge a client a premium fee for not signing a model release.  After all, in order to effectively market our business, we need images to use for advertising. If every client decided not to sign the model release, we would be severely limited in our ability to use our own images for commercial activities.  

Basically, if we are unable to use images, we can’t market, right? Therefore, and it is logical to believe, that if a photographer is going to lose a potential marketing opportunity, compensation should be made.  Legally, you are able to do so.

But should you?

 

Should I charge?

To make the decision, you, as the business owner, must consider several ethical and marketing standpoints as well as the message this will send about your business.

First, it is important to consider the reasons why the client may be resistant to signing the model release.  The question is whether a business owner should ethically charge a client for their right to privacy in general, and even more so with any issues that may not initially present themselves.  There may exist privacy, career, or other issues (such as foster child regulations, potential for harm to individual, etc) that prevent a client from signing this document. It may be a different situation if a client is refusing a model release simply because they are uncomfortable – but even then, the client’s perspective should also be taken into account when determining whether to charge extra or deny a client a session based on their request to waive a model release. 

Second, from a marketing perspective it may seem like the loss of marketing those images is detrimental. However, it is important to consider the lost monetary income, as well as the potential organic social proof and word-of-mouth marketing that is lost.   The return from one client that is allowed to waive a release without having to pay a fee can bring more clients that do allow for publication with no issue.

 

TheLawTog Recommends

While having the ability to generally market your images is essential, sometimes doing the right thing is right.  This recommendation is from years of experience as a business owner, plus the lawyer lens as well.

#1 Don’t advertise the option to waive – but allow it to happen as needed

#2 Propose a restricted release (such as not distinguishing shots, non-use of names, or elements of a session)

#3 Honor the request, but photograph more

 

About Author

Rachel Brenke is a lawyer, photographer and business consultant for photographers. She is currently helping creative industry professionals all over the world initiate, strategize and implement strategic business and marketing plans through various mediums of consulting resources and legal direction. Disclaimer: I am a lawyer but I'm not your lawyer! View my entire disclaimer here

8 Comments

  1. Should the model release always be a separate document for client to sign, or can it be incorporated to Photography Contract itself?

  2. Whilst you are not in the UK so will cut some slack due to not knowing US law as much. In UK, the copyright act specifies that if a client wants privacy, they can do so, providing those images are private and not to be published for the world to see.

    85 Right to privacy of certain photographs and films.

    (1)A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have—
    (a) copies of the work issued to the public,
    (b) the work exhibited or shown in public, or
    (c) the work communicated to the public

  3. I let my clients know from our first conversation that model releases are required and include it in the information I send to them.. If they have an objection I tell them it’s fine if they don’t want to sign but I do not give or sell digital files without one. (I primarily sell wall art and albums.). I give small digital files with my logo (for their phone and social media) for every image with a print order.. Since I adopted that policy I have had only one client not sign and that was because of a custody dispute.

  4. Kirill Brusilovsky Photography on

    I am a wedding photographer from Germany, where many clients are aware of their privacy and publishing photos within portfolio is therefore a hard issue. Not sure, if it is the same in the USA, but legally letting a client to charge additional fee for excersising his basic privacy rights might be problematic and also psychologically this “punishment” for not letting photographer to show pictures is hard to sell to a client.

    However it can be solved by a simple trick: instead of charging something extra, one can name “standard” prices for the packages, with respect to all clients’ privacy rights, where the additional charge is already calculated and then offer some discounts for clients, who agree to sign a model release. In the end, in terms of prices it is the same model, you are discribing, but “discount” sounds much better than “additional fee”.

    The great issue with model release for wedding photography, especially for journalist-style pictures is that a couple generally have to provide an agreement for publishing not only for themselves, but also for the wedding guests.

  5. Susan Eckert on

    This is key for boudoir photographers. Oftentimes our clients will not want us to share the images to protect their jobs/family/guard their privacy. I couldn’t imagine charging them for that privacy. Every boudoir photographer should go into this niche prepared for this inevitability. Forming relationships with models or friends who love to be in front of the camera and aren’t shy could be another way to show our work and inspire would-be clients.

  6. Rachel Brenke on

    Thanks for chiming in! Americans an also decline a model release here as well!

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