Saturday, June 21, 2008

Model Releases: The Subject That Will Not Die

Model releases are really pretty simple. If the law of your jurisdiction requires it, you have to obtain a release of rights (the right is usually called the "right of publicity" or the "likeness right") before you can use someone's likeness (which, depending on the jurisdiction, can include photographs, drawings, video recordings, or even audio recordings) for whatever purposes might be controlled. This is usually commercial usage, and in the US, the First Amendment protects most "editorial" or reporting usages, even without a release. If you'd like to see an example of such a law, you can click here to see Illinois' Right of Publicity Act, codified as 765 ILCS 1075.

So here's the deal:

If you offer a photograph for licensing, you have to indicate whether you have a model release. On some stock sites, such as PhotoShelter, the one I belong to, you have multiple choices - PhotoShelter's are "Have Release," "Don't Have Release," and "No Identifiable Person In Photograph." That way, the potential licensee can make decisions on whether a photograph is appropriate for their purposes - if they want an editorial illustration, they can specify that they don't care about releases, and if they want a commercial use, they can specify that they only want released images.

Pretty straightforward, right?

Well, apparently not. I was browsing through photographs on PhotoShelter today and I found several images of celebrities which were not only clearly identifiable as individuals, and famous ones at that, but in which the subjects were named in the captions, and the images were marked "No identifiable person in photograph." If you want to see some, click here and look through the results. The images in question are of a dark-haired woman wearing a green t-shirt. You'll see them, unless they get removed.

The photographer in question claims to be an experienced professional photojournalist. (Their pictures are pretty good, really.) There is NO excuse for this. None. That is outright fraud. If I were in charge, I'd kick them off the site.

Those of you who are photographers, don't do this. It will eventually come back to bite you. The legal sanctions for infringing the right of publicity can be severe, and if you license an image to a client and they use it relying on your misrepresentation, they can and will sue you for any damages that may result, as well as their money back. Damages in such cases have been, literally, in the millions of dollars. It'll take a lot of shifty sales to make up for one of those if you get nailed. Just don't do it.

If you're not familiar with model releases, you should consult an attorney licensed in your jurisdiction and familiar with the relevant law for more information.



Kendal Larson said...

Marc -

You sure this wasn't just a mistake when he was making his images live? This guy seems far too experienced to be listing them as such otherwise.

Perhaps he just needs a heads up?

(nice blog btw) :)

Google Alerts brought me here - I love Google Alerts. :)


MarcWPhoto said...

He's got dozens of pictures posted over several months with the same issue. It doesn't default to anything, you have to actively make a choice.

I find it unlikely that it wasn't done consciously.