Model Release Question

Discussion in 'Business of Photography' started by jay_philbrick, Jan 21, 2005.

  1. I have a photo that may be published in the next issue of a magazine.
    The photo was taken of an individual on the side of a mountain above
    town in plain sight for everyone to see. In the photo the person is
    too small to recognise, but the magazine would like to name the person
    in the photo. I told the magazine who he is. I understand we aren't
    lawyers in this forum, but do you think a model release is required?
    What if he doesn't want his name posted with the photo? It's too late
    for a release, but maybe not too late to have his name removed. If
    there is any risk, who is at risk, me or the magazine?
     
  2. editorial use is a little bit different that using the picture in an add. A release is not typically required. But once you put his name down, I would think you should at least have his permisison...preferably in writing.

    As far as who's at risk...it would be the magazine for publishing it, and then the magazine would come after you for negligence.

    I'm not a lawyer, but that's my thought.
     
  3. Unless the photograph is used in an advertisement, I don't think there is any risk.
     
  4. I can't see why this would be a problem, even if the magazine uses the person's name. I would just ensure that the caption is accurate and doesn't misrepresent the individual.
     
  5. My response above refers to editorial usage of the person's photo and name. If used in an advertisement, a release would be required (as Bert already suggested).
     
  6. The caption will be accurate (just naming the individual), does not portray the individual in a bad way, and will be used for editorial purposes. It was taken from a distance in a state park. Again the individual would not be recognised except for the caption. Because it will be not be used as an ad or to promote anything and was taken in a public place (the person was hard to miss and others were taking photos as well), it seems like a "fair use" issue and therefor no release should be required. But, that's just my best guess.
     
  7. Spearhead

    Spearhead Moderator

    it seems like a "fair use" issue
    This is not "fair use." This is a model release issue. "Fair use" is about copyright. This is why people should see lawyers rather than use Internet forums for legal advice.
     
  8. Jay,
    Is the unrecognizable person who will be named in the caption a celebrity?
    Best regards,
    Rubens.
    http://www.TheImageNation.com
    Travel stock photography
     
  9. No, not a celebrity.
     
  10. Jeff, this is the definition I found in my research on this. Is it incorrect? It's from Dan Heller's site. Lots of legal stuff there.

    Fair use- a legal term that refers to a subject that happens to be in full view from anywhere at any time by the general public. Photographing it may be either unavoidable, or it's unreasonable to assume that a person would think to avoid it. For example, photographing crowds of people in public spaces is a form of "fair use," since you cannot really avoid them, especially if the subject of the photo is "a crowd of people." You would be surprised how often "fair use" protects you from situations that you would otherwise feel concerned that a model release is expected.

    It sounds to me from that description that fair use applies to whether or not a release may be needed along with other things that need to be considered like; is the subject identifiable, how will the photo be used, and how was it taken.

    Perhaps the stuff I've been reading is incorrect or maybe fair use applies to both copyrights and releases, I don't know. Like you say and like I acknowledged in my opening post, we're not lawyers. But that shouldn't stop me from asking around in order to help determine if I should spend the money to see one. From what I've discovered so far it doesn't seem necessary.
     
  11. Subject: Response to Model Release Question

    Wellllllllllllll Jay, actually some of us are lawyers on this forum, even though we may be earning our living as photojournalists. ;>)

    The basic rule is that any magazine editor who, prints a recognizable image of an individual without a release may subsequently be individually or jointly (with their publication and/or the photographer) found liable for invasion of privacy. The question in those cases, is whether the individual depicted had a reasonable expectation to privacy at the moment their image was recorded.

    In addition, if the image (deliberately or not) unfairly portrays the individual in a false, misleading or derogatory manner or just causes them to look bad to the viewer, absent a release, both the photographer and the publication (which probably has deeper pockets to pay a judgment than the photographer) could also be on the hook for defamation or libel. A photo may be greatly impacted by the words accompanying it as well. So, beware of captions that may be violating restrictions on printing private, embarassing yet truthful information about someone.

    Such civil actions may be commenced at any time within that person's state statute of limitation for personal injury or tort claims. That date will start to run from the date the photo is actually published, not when it was taken.

    Sure, there are plenty of state case law "news worthy" and public figure exceptions to the rules requiring a release that may, in some but not all instances, apply to bonafide news publications like newspapers or news magazines, for example. Photos that are in the public interest, "need to know" along with facts published in conjunction with the photo, get pretty liberal passes by the courts. But many increasingly prudent editors for these publications will require photographers to get a release if it's at all possible just to avoid any potential risk.

    AND, courts in various jurisdictions have placed restrictions on the public's right to know (or see) confidential facts about someone when a photograph depicts a private someone in an embarassing situation in a public place. In other words, a photo that is highly offensive to a reasonable person, even if news, should not be published unless it is patently newsworthy and of legitimate concern to the public.

    And, certainly, using a photo of someone to sell a product, without consent or release is unauthorized use, and in fact misuse of that persons image and creates liability on the part of the photographer, the publisher, and the company selling the product. So, commercial use without a release is a no no.

    Now, having enlightened you with all that, I recommend a book called Photography: What's the Law, by Bob Cavallo and Stuart Kahn. And, should your editor publish this photo without a release? If the person is recognizable, no. If they are not recognizable, sure. But printing the person's name...that's why magazines have lawyers available to answer those questions.

    Lastly, you should see by all this that released photos have more value as stock photos. A reputable stock agency won't accept any work wherein the photographer doesn't warrant that the recognizable individuals depicted, have signed releases. [Now, please don't ask me for a seminar on releases for shooting property]. Take it light Mark
     
  12. Mark, thank you very much for your detailed reply. It confirms most of what I have discovered elsewhere and leads me to believe that I am in pretty good shape with this photo. Thanks again. No property release questions yet!
     
  13. Mark:

    Even though I'm sure you're a lawyer and all that, I must disagree with your logic. If what you say would be true you'd never, ever see images of people doing "bad" things in magazines, newspapers or books - the venues in which "editorial usage" takes place.

    For instance. I shoot prisons, police, forensics, courts etc. My clients are the biggest publishing houses in the US and my images appear in textbooks etc all the time. Images showing people getting arrested, search warrants being executed, traffic accidents, crime scenes etc.

    As long as the usage is editorial and the caption is an accurate representation of what actually happend, there is little to fear in the form of a successful lawsuit. Should pro photographers still have insurance that takes care of legal costs if they are ever sued? You betcha. But, if I have an image of a gangbanger smoking crack that image can absolutely be used in a newspaper, magazine, or book (insides) to illustrate crack-smoking. If the same image was published and the caption was about someone smoking meth, that wouldn't be good. Yet another reason accurate caption info is crucial to stock photography today.

    Having said all this I admit that I always seek angels that doesn't show a person's face if possible. I edit out things like house-numbers and license plates from photos. I don't do this because I feel that I have to but because it's the right thing to do and because it's better to be safe than sorry. Then again I never get model released and I have yet to come across a publisher who will ask for one for editorial usage.
     
  14. Spearhead

    Spearhead Moderator

    Jay, that's a completely incorrect usage of the term "fair use." To understand what it is, go here. (It's from a law center.) Dan Heller is not a lawyer, and this part of his site has been singled out before as being completely in error. For legal issues, go to law sites of lawyers, not photographers.
     
  15. Nice thread with very interesting information. Also, some of us who are lawyers may suggest in perhaps every instance that you see your local attorney because individual circumstances and local laws may vary considerably from general rules, whether those rules relate to use of images, to contracts, or anything else. Whether you need to see a lawyer depends on your assessment of your risk - how much of the farm will you bet on this particular decision? Good luck!
     
  16. Why does any of this matter if the person is unrecognizable?
     
  17. By the way Jeff, your link doesn't seem to work.
     
  18. Jeff, thanks for the link to the legal site and the info about the possible accuracy issues at Heller's site. I can't get the link to work either, though, as SP has already nentioned.

    SP, the person is unrecognisable in the photo, but the magazine usually likes to mention the name of the person in these types of photos. It's a magazine about outdoors sports activities and they like to make mention of who the individual is who is photographed doing something noteworthy and most people would even pay to get an image of themselves in such an endevour in this magazine. It's a very complementary thing. It took me awhile to figure out who the person was and when I found out I let the magazine know. It goes to print in the next couple of days and I can't get in touch with the individual for a release. I'm only worried because his name is mentioned in the caption, not because he's recognisable. Maybe I shouldn't have given the name without a release, but since it's editorial in nature, maybe it doesn't matter that much. But, what if he would prefer not to be named? This is what I'm trying to figure out.
     
  19. Spearhead

    Spearhead Moderator

    The link has been fixed and works properly now.
     
  20. Excellent link. Thanks a lot.
     
  21. Got it, it's a name thing. And thanks for the link Jeff.
     

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