Liability Releases

There was a tv special about a gentleman who publishes photos as

art. He specializes in people. He was shown walking through a

park, rapidly snapping pictures. Obviously, he did not get any

releases signed. Is this legal if the photos are considered works

of art?

1. You are talking about "model releases." "Liability releases" are what you sign before ... say ... you go whitewater rafting, so your estate can't sue the rafting guide if you fall in and drown.

 

 

2. While this is not a legal advice forum, generally, if you take photos of people who are identifiable in the images, you should have a model release if you are going to sell those photos for profit- as opposed to using the images for news/journalistic purposes. The concept involved is "commercial use" and whether a salable image constitutes "art" is legally irrelevant.

 

 

As an illustration, in New York State, Civil Rights Law Section 51 requires written consent for the commercial use of a subject's photograph. Cory v. Nintendo of Am., Inc., 185 A.D.2d 70, 73 (N.Y. App. 1993).

Thanks. I curious as to how the photographer I saw in the special does it. I wish I could remember his name. He is apparently famous.

Thanks again

I believe Eric's answer is partially incorrect.

 

Yes, a model release is required for "commercial use". However, selling the photos or

making a profit are not relevant to commercial use. Commercial use generally has to do

with using the image to promote a product or service, such as an advertisement. A fine art

print or a newspaper article photo are generally not considered commercial use, even

though the photographer makes money from it. Conversely, a photographer could donate

a photo to be used for an advertisement for an organization he supports, and it would still

be commercial use, even if he makes no money at all. So "commercial use" has to do with

the context in which the photo is used, and nothing at all to do with whether or not the

photographer makes any money.

 

So, if the photographer Al is talking about is selling the photos as fine art prints, then it is

probably not considered commercial use, and therefor no model release is necessary.

I'll repeat- if you sell images of people, its "trade" and its "commercial use." This is why fine art photographers have collected model releases where possible (e.g. Diane Arbus obtaining a model release from the parents of the twins in her iconic image in exchange for a copy of that print that is now worth hundreds of thousands):

 

 

http://www.washingtonpost.com/wp-dyn/content/article/2005/05/11/AR2005051102052_3.html

 

 

Unless you are a member of the press, if you don't get a model release and you sell an image of a person in any form- prints, books, etc.- you do so at your own risk:

 

 

http://www.gothamist.com/archives/2005/06/26/photographer_sued_for_taking_portrait.php

Eric:

 

Sorry but you are wrong. There's no need for a model release for any editorial use including in books, magazines and newspapers (not ads appearing in these publications since that's a different matter). It doesn't matter if the image has people in it or not. I routinely license lots of images to major book publishers in the US of un-released images that have people in them and no publisher has ever even hinted at the need for a release.

 

If you make money from the usage or not has zero bearing on if a usage is classified as commercial or editorial.

 

Also, having a release is not a guarantee against anybody filing a lawsuit, a release simply makes it less likely that the person filing will win.

One more thing... It makes absolutely zero difference if the photographer is a "member of the press" or a happy amateur when it comes to determining usage and the need/or not for a release.

I'm guessing I'm the only person in this discussion who is a lawyer and who has actually litigated commercial disputes. "Commercial use" is any use that brings value to a person or organization displaying a photograph to the public. If a photographer sells an image of a person without a release, he risks being sued, losing, paying damages AND being enjoined from selling or displaying the image. See e.g. New York's Civil Rights statutes, Section 51.

 

 

The key exception is the press covering news. Again, since a great deal of "use" law is created in New York state, we'll cite New York law as an example. From the time Civil Rights statutes Sections 50 and 51 were enacted, New York courts have consistently held that the terms advertising or trade purposes "should not be construed to apply to publications concerning newsworthy events or matters of public interest." Stephano v. News Group Publs., 64 N.Y.2d 174, 184, 485 N.Y.S.2d 220, 474 N.E.2d 580 [1984]; Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 [1952].

The <a href="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/12-b.html">best source on the web</a> for information on model release type issues says that you don't need a release for any non-commercial purpose. It lays out very clearly what consitutes a commercial purpose. Note that this information agrees with what Mikael says.

Eric:

 

Lots of attorneys at major US publishers disagree with you.

Jeff, the issue raised in the post is whether an artist needs a release to sell images of a person; let's say, prints, books, maybe posters. The Stanford page you link to does not address this issue.

 

 

Mikael, I've cited case law. You've said that "lots of attorneys at major US publishers disagree with (me)" without naming one or stating how they disagree with me.

 

 

I've been searching on Westlaw and have not found any reported case law exactly on point with the artist/release issue. I would suggest that the Philip-Lorca diCorcia lawsuit I linked to above would be a suit to watch relative to this issue:

 

 

http://www.judicialaccountability.org/articles/pictureworth.htm

 

 

The plaintiff in the diCorcia suit is suing under the New York Civil Rights statutes I cite to above. He claims that diCorcia's selling his image without his permission or renumeration violates the "for trade" provision of the New York statutes. The claim is significant, as the plaintiff is suing diCorcia for selling prints, as well as the publisher of diCorcia's book. Also sued are "unnamed distributors and sellers of the image," which would mean any galeries selling the plaintiff's image for diCorcia will also be drawn into the suit.

Eric:

 

I'm not an attorney, obviously. I'm a professional photographer though and I license my unreleased images to publishers such as Pearson, Allyn & Bacon, McGraw-Hill, Scholastic, Lucent etc all the time. When used in books, newspapers and magazines the usage is considered to be editorial. For editorial use there is no need for a model release. All major publishers have a legal staff that I am sure would clamp down hard on usage of unreleased images if it was indeed a legal problem.

 

Check out Bert P. Krages (an attorney) writings and books on the topic on his site http://www.krages.com/bpkphoto.htm

 

Where I think you might have misunderstood the issue is the definition of commercial usage. When we're talking photography usage - no other definitions of the word commercial mind you - commercial usage has nothing to do with profit or making money.

 

Commercial image usage definition: When an image is used in a way that promotes or sell a product or service. Like in an ad, on a billboard etc. A release is absolutely recommended.

 

Editorial usage: When an image is used to educate and illustrate such as in a book, magazine, newspaper etc. No release needed.

 

Fine art falls a little bit inbetween since it can be argued that it doesn't educate nor illustrate.

 

Hope that clears things up a bit regarding editorial vs commercial usage.

Fair enough.

"Everybody does it" doesn't mean it's necessarilly legal, it may mean no one has pushed the issue yet far enough to be really noticed.

Craig:

 

You're right. Just because everyone does something doesn't mean it is legal.

 

I mentioned the fact that the major US publishers do this to drive home a point. You can't possibly think that, in a society so litigious (sp?) as ours, big publishers would do something like this if it wasn't legal and if it increased the risk that they would lose in court if they get sued?

 

Take my own photography as an example. I photograph law enforcement, prisons, forensics, courts and related topics. Fairly sensitive topics as far as publishing goes. Yet not even once have a large US publisher asked for releases - and I always let clients know that my images aren't released.

 

If releases were indeed needed for editorial use you'd see the photographic quality of text books, career-type books etc drop dramatically. While it's fairly easy for me to tag along with a SWAT team serving warrants and get "door busting" pics, it would be an impossibly large production to set something similar up in a studio with models prepared to sign releases. The price of such images would also be way higher than what the market currently pays.

 

Also, having a release doesn't mean you can't be sued. It just makes it less likely that the individual suing is less likely to win.

I'm thinking more on the lines of the number of people who have smugmug or similar type accounts offering images for sale - not so much in a published article or magazine or similar use which might be arguably news, "editorial" as in an educational publication, etc. But a picture of me (or my wife or minor daughters) taken at a an event in Hollywood being offered out to the general public could well be arguable in that they are simply pictures from the party. I'm not a celebrity or newsworthy - more it's a social puffery common to that crowd. I/they looked to be interesting photo subjects. It's right there with offering shots (on spec?) of participants in sporting events, etc. It's a gray area. But common.

 

I would expect that if the current suit in New York succeeds, things would change radically.