Model Release To Post On Facebook

<p>We post a few images of each wedding on our personal Facebook page. We received a message for one of the guest at a wedding last month asking us why we posted her picture without her signing a release. This guest is the grandmother-in-law of the bride. </p>

<p>I checked previous questions of this matter but they were all related to posting guest images in wedding albums and on photographer's website. This is about photographer's Facebook page.</p>

<p>Do we have to have a release for that?</p>

<p>The answer is - it depends.</p>

<p>(NOT A LAWYER, NOT LEGAL ADVICE, blah, blah, blah...)</p>

<p>If you are in the US the answer varies by state. Some states say that any use of a person's likeness without their permission is misappropriation. Others draw a line in the sand and say that the person who's image is used has to be someone that an ordinary individual would recognize and identify. Others say it is only misappropriation when the image is specifically prompting or implying an endorsement of a particular good or service.</p>

<p>With all that being said - many photographers do carry a stack of releases with them and have them signed on the spot. Others don't.</p>

<p>Bottom line - you own the copyright to the image - which gives you the right to do whatever you wish with the image (unless you have transferred that right to the couple). But what we are talking about here is usage, not ownership.</p>

<p>In this case - I think most reasonable people would determine a) that they don't know who the guest is (unless she is an a-list celeb) and b) that simply posting a photo as an example of your work is not implying an endorsement or promoting your work, merely showing it as a representative sample (portfolio) of your efforts.</p>

<p>Now - you get in the customer service part - People don't want to be educated on this law / rule by a photographer. They believe what they believe and you and I are not going to change them. I would respond in the following manner "I'm sorry if you are surprised to see your image on my page. I feel that it is a very good, compelling example of my work at this wedding, and would love to continue to display it. However, if you are opposed to me doing that, and deny me permission to do so, I will remove it from my site posthaste. "</p>

<p>Simple and to the point. If she wants to be educated - go ahead and do that. If she responds that she doesn't want it shown - then take it down. Let the couple deal with her when they post it.</p>

<p>Oh - and it doesn't matter if it is your business site or Facebook - they are both "public" sites. </p>

<p>Dave</p>

<p> </p>

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<p>Some states say that any use of a person's likeness without their permission is misappropriation. Others draw a line in the sand and say that the person who's image is used has to be someone that an ordinary individual would recognize and identify.</p>

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<p>David, I'm pretty sure you inadvertently left out the advertising/promotions/commercial usage in these situations. You have made way too many knowledgeable posts to make a claim that some states have a standard where "any use" of a likeness can be misappropriation. Also, you seem to have words missing from the second part as obviously images of unrecognizable people can be used for virtually anything.</p>

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<p>I checked previous questions of this matter but they were all related to posting guest images in wedding albums and on photographer's website. This is about photographer's Facebook page.</p>

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<p>The issue isn't about what site the images are on, its how they are used. I have seen one court case, in one jurisdiction, rule that videos used as samples of work are not misappropriation. There is probably a good argument that the images are merely samples are, thus, permitted. Different jurisdictions may differ.<br /><br />Even if the use is impermissible, exposure to substantial damages, if someone really were to pursue this, would seem low since the is no large scale use and lack of negativity involved.</p>

<p>Mostly, the issue here should be business, not legal matters. If the person doesn't want their likeness used, there doesn't seem to be any real need to use this one image. Even if you maintain that you are not required to take it down, you can simply do so as a courtesy.</p>

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<p>it doesn't matter if it is your business site or Facebook - they are both "public" sites.</p>

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<p>The first part is true but misappropriation is capable of occurring in private and/or limited settings .If "public" mattered, one could not have a claim for misappropriation if their likeness were used without permission pursuant to a purported endorsement of adult products in private pay sex sites. I'm confident David that you will agree that such a claim could go forward despite the restricted site aspect. To borrow a line from the same post as the quote above... "what we are talking about here is usage". Such usage can be in a wide variety of settings. <br /><br /><br /><br /> Did you have your coffee today?</p>

<p>Since the guests were not at a private event (ie. there was no reasonable expectation of privacy), nor any (I'm assuming) specific use of the image implies specifically that the guest in question supports and/or is advertising/advocating the photographer or photography, the use is not a violation of the guest's privacy or publicity rights, is not actionable, nor is any kind of 'release' required to post it (on Facebook or elsewhere).</p>

<p>That said, I'd pull it. There is simply no good reason not to... Getting into a fight over one pic is definitely NOT worth it... especially on FB where all the rest of your clients/ potential clients can see the back and forth commentary.</p>

 

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<p>Since the guests were not at a private event (ie. there was no reasonable expectation of privacy)...</p>

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<p>Expectation of privacy is not part of misappropriation analysis. Once again, <strong>Misappropration concerns how an image of someone is used, </strong>not how the image was created or where someone was when their likeness was captured. If merely being in public made use of a likeness permissable for commercial use, we could shoot an image of Marcus or anyone out in public and use their likeness in advertisements all we wished. This is, of course, nonsense. Being in public or not, is not an element of misappropriation. Expectation of privacy will matter with respect to instrusion which is a different subject which is not concerned with commercial use.</p>

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<p>nor any (I'm assuming) specific use of the image implies specifically that the guest in question supports and/or is advertising/advocating the photographer or photography,</p>

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<p>This will be so for endorsement use only jurisdictions. Otherwise, the issue will probably be if the likeness is used as a sample of work although a particular jurisdiction might not accept that basis either. </p>

<p> </p>

<p>No John - I didn't - Thanks for catching the errors. </p>

<p>Bottom line doesn't really change for the OP though. </p>

<p>If the person is upset or doesn't want their image shown - pull it - even though he may have the legal right to use it. </p>

<p>Dave</p>

 

<p>Marcus - </p>

<p>I believe that it has been stated that a wedding in fact is a "Private" event - since someone off the street technically would be asked to leave if they just showed up without an invitation. (Actually saw that happen at a wedding recently - the person who showed up had the wrong date - they were a week early... quite a laugh.) </p>

<p>As John points out - correctly - public or private is not really important to this situation. We're not talking about the act of being photographed, we're talking about the usage of said photo. <br>

Dave</p>

 

<p>It used to be the rule in most parts of the country that a photographer had the right to display his work in the lobby of his studio or in his studio window so folks could see what kind of work he did. But not put any in an ad in the newsspaper without permission. How this translates into the Internet age I have no clue. Personally it seems reasonable to me to post something like wedding photos on your Facebook page. But perhaps the photog should put it into writing that s/he might do this.</p>

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<p>It used to be the rule in most parts of the country that a photographer had the right to display his work in the lobby of his studio or in his studio window so folks could see what kind of work he did.</p>

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<p> <br>

Can you point to what laws permitted this?</p>

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<p>Can you point to what laws permitted this?</p>

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<p> <br>

Laws generally prevent you from doing things rather than permit them.</p>

<p>OK, let's put it another way. What laws have changed since then to prevent it?</p>

<p>Let me preface this by saying: 1) I am a lawyer; 2) This is not legal advice; and 3) I do not specialize in copyright law. This post is just for educational and discussion purposes and does not constitute legal advice nor does it create an attorney client relationship. You should consult a lawyer regarding the specific facts of your situation.</p>

<p>This question has always intrigued me. So I decided to look up the California Statute that I think might govern this situation. It is California Civil Code section 3344 (and its subparts). In general section 3344 provides that you need a model release for any individual who can be readily identifiable from a photograph that is used for any commercial purpose, including "in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services". While I haven't reviewed case law on the subject, the plain language of the statute seems to sweep the display of a photograph used for commercial purposes on facebook under its umbrella. </p>

<p>So, for example, you have a model release (contract) with the Bride and Groom indicating that their photos maybe used for commercial purposes (if you do not, then you probably should be adding it right about now) such as display on facebook and other mediums to solicit business for your company. That covers them and avoids any problems.</p>

<p>Now what about their Grandma. She hasn't signed a release and neither have any other guests. So when you post the photo on facebook for the commercial purpose of advertising your business, you likely fall under CC section 3344. </p>

<p>The downside: Section 3344 provides for a minimum penalty of $750.00. That may be more than what you were paid to shoot the wedding. It get's worse. That penalty is per person identifiable in the photograph should they claim unauthorized use. Grandma and Grandpa could set you back $1,500.00. That is not all. There is still more bad news.</p>

<p>Under Section 3344 you could also be required to pay Grandma what you would have paid for a model to be used in that advertising. Worse still, you could be required to disgorge all profits that can be traced back to that commercial usage. So you could be forced to payout thousands if not hundreds of thousands of dollars in profit for each year that you got business because of the unauthorized photos usage. Don't believe me? Check out this article on the subject and skip down to read about what happened to Taster's Choice. http://adultbizlaw.com/model-releases/</p>

<p>It gets even more complicated if Grandma dies and you continue to use the photograph. That's covered by section 3344.</p>

<p>Moreover, you could be liable under other California statutes as well. Last, but certainly not least, you may also find yourself liable for Grandma's attorney's fees should she sue you and prevail. So not only will you have to pay her for the photo, disgorge your profits, but you will have to pay for the privilege of being sued as well.</p>

<p>Did I mention that other states may have their own laws on the issue. California's law is super strict because of the celebraties. But who wants to be sued by Grandma in California, the cousin in Nevada, and the Uncle in New York all because they were in one photograph with the Bride and Groom?</p>

<p>My (nonlegal) advice: Take the photo down. </p>

 

<p>For what it's worth, I include a model release paragraph in my Wedding Contract.</p>

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<p>I include a model release paragraph in my Wedding Contract.</p>

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<p> <br>

And do you get every guest to sign it?</p>

<p>Nope, it states that ALL images are property of the Photographer and may be used for promotion... Since 1994, have never had a problem or even question on it.</p>

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<p>Nope, it states that ALL images are property of the Photographer and may be used for promotion</p>

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<p><br /> That's not model release language. You may not have had a problem with it but it leaves you completely open.</p>

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<p>it states that ALL images are property of the Photographer and may be used for promotion<br>

</p>

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<p><br />You're o.k. with the first bit but not the second.</p>

<p>The person hiring you (and therefore signing the release/contract) cannot give permission for promotional use of images of other people.</p>

 

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<p>Since 1994, have never had a problem or even question on it.</p>

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I don't doubt that as the chances of it becoming a problem are minimal. However, you are not covered in terms of a release for the promotional use of other people's images.</p>

Thanks Jemal Y for your presentation of the California code was interesting to read.