Release Me (Part 3 of 3)

So here we are at the last of three installments about Candid photography. We looked at tips to get the photos, the issue of permission and now we wade into the muddiest of all issues, in my opinion, Model Releases. Let me say again this is my understanding of the issue and is not intended as gospel or legal advice.

Some photographers may be missing out on a profitable aspect of their business because they are not marketing photos for which they don't have releases and others may be spending an exorbitant amount of time obtaining and maintaining releases they don't really need. Let's first look at the types of images when it comes to the need for a model release. When I say "types" I am referring to the use of the image whether that is the initial intended use or ultimate final use. A photo's intended use is the primary governing factor that determines the need for a subect's permission (release) before profiting from their image.  Usage falls under several broad categories: fine art, journalism or editorial, and commercial, each of which has their own set of rules regarding model permission or releases.

Fine Art

© David Toczko

If you intend to exhibit your images as fine art, you do not need a release. One exception to this is if the image is of a minor, in which case you would need the parents' permission. Examples of this could be portfolios (hard copy or online), gallery exhibitions, books, art fairs, etc. Selling prints of those images at a show is also generally considered legal. However, if you intend to make posters of the prints to advertise your show, you are using the images for "commercial" use and would need to have a model release.

Editorial Use

© David Toczko

In general, you do not need a model release for photos taken in a public place (where the subject has no expectation of privacy) or for photos that are considered 'news'. You also do not need a model release if you intend to sell your photos for editorial or illustrative use to newspapers, magazines or any other publishers except in the case of corporate which may be considered advertising. Proper and accurate captioning is strongly advised. The photo on the right was taken at a public event and used in a local newspaper article about that event. In this case, a model release is not required. Photos used in an advertisement in those publications would require a release (see below) Even photos intended for editorial use can put you at risk, though; especially if a candid subject decides that you have presented them in a negative light as we discussed in Part 2. 

Commercial Use

The moment you license a photograph to sell something....anything, it falls under the heading of commercial use (even if you are licensing it to yourself), and you will need a model release.  Basically, the only time a release is needed is if a person can be seen as supporting, promoting or advocating an idea, product or service. If the photograph is of a child, you will need one and preferably both parents' permission to use the image commercially.

Our culture has become so "sue happy", many stock photo agencies require model releases for all images submitted to them for possible sale. This is also a growing trend when it comes to photo contests. That is their policy and not the actual law. Another aspect of this requirement is because most images sold by stock agencies are for commercial use (advertisement) by the client who purchases it from the agency. In addition, regardless of the intended use it is a good idea to ask a parent not only for a release, but also for permission any time you take a picture of a child. Because you never know the final, ultimate use of a photo when you press the shutter, keep a few releases handy. They will not add much weight to your gear bag, and you never know when you'll create the next iconic image. Having those releases will allow you to not limit how you can use the images and can save you a lot of work and headaches later.  

I hope this series has answered a few of your questions. Don't let all these issues keep you from taking a photo, but keep them in mind when it comes to how you are going and can use it. Until next time....happy shooting!