Release Forms

[victoria_harris1]

I am going to start shooting youth sports around my area, I was wondering if I

have to have anyone sign model release forms or if permission from the league is

enough. Thanks!

[peterlyons]

You don't need permission from anyone to shoot a public event, including youth sports.

Release forms are only required if you want to publish them for commercial use. (As

opposed to editorial or personal use.)

[Matt Laur]

Release forms releasing who from what? Are you talking about model releases (from the subjects or their parents) so that you can sell the images for commercial use to third parties? Or are you talking about obtaining permission to be on the grounds of the events, if they're not on public property?

 

It's not usually about taking the photograph... it's about what you DO with it. You certainly aren't going to need a release from a child's parent in order to sell those same parents that photograph. But if you intend to put the images online for the parents to find, in order to later purchase them, then you might want to take some steps to make that part of your web site password protected or have it require a magic keyword before those parents can see the images.

 

A better description of your business model, intended audience, and the mechanism by which you intend to sell the images will get you some better info.

 

Or... are you talking about freelancing for local newpaper use?

[victoria_harris1]

Sorry I should have been more clear! I am wanting to shoot youth events and then sell the images to parents. I have done images for a couple of high school teams in the past and password protected the gallery so only people from the team are able to see the images. I am going to get permission from the league to shoot, and then put the images online (with a password) for anyone from the team to view. If I wanted to use an image as an example on my website then I would need to obtain a model release, correct? However if I am just going to the event, shooting, and then selling to the parents then I will not need a model release, right? Also does anyone have suggestions as to where I can get an idea of what to include on model releases?

[argv]

> It's not usually about taking the photograph... it's about what you DO with it.

 

Actually, it's not even so much about what YOU do with the photos, but what your clients who license them from you do with them. Most photographers don't often self-publish in a form that requires releases, though it's certainly common enough not to be ignored. However, the kind of uses where releases are necessary are typically done by licensees.

 

But all of this is besides the point without the basic fundamentals of how and why releases are necessary. I strongly suggest people understand that first, before starting to ask questions about "whether you need a release."

[craig_gillette]

"If I wanted to use an image as an example on my website then I would need to obtain a model release, correct?"

 

Using someone's image in a way that could be seen as promotional or an endorsement, could be an infringement of their publicity rights. The only way to be sure you of that is to be familar with the laws as they apply in your state. They aren't the same in every state. For example, Illinois law doesn't apply in California.

 

In any given state, the codes or case law could be different or changing so a website or book would offer general advice that may not apply to the specifics of your situation.

 

Here's the ASMP site and it also has a link to an attorney's site with a specific article on publicity.

 

http://www.asmp.org/commerce/legal/releases/

 

http://www.editorialphoto.com/resources/6-05_LegalNews-%20right_publicity.pdf

 

Here are a couple of books authored by attorneys that might be useful. The last also has forms. There are some forms offered on the ASMP site as well.

 

"The Law, In Plain English, For Photographers" by Leonard D. Duboff

 

"Legal Handbook for Photographers" by Bert Krages

 

"Photographer's Legal Guide" by Carolyn E. Wright

 

"Business and Legal Forms for Photographers" by Tad Crawford

[argv]

> If I wanted to use an image as an example on my website...

 

there's the premise question. Then Craig rightly points out:

 

> Using someone's image in a way that could be seen as promotional or an endorsement, could be an infringement of their publicity rights.

 

And this is where discussions then go in the wrong direction: everyone then starts talking about the code of as if the photo WAS a form of endorsement. But that's a big hand-wave right there, and given all the discussion and the book recommendations that go back and forth, never once does anyone actually get to the real meat of the question at hand:

 

"Does the image being on a website actually *constitute* promotion or endorsement?"

 

Do you REALLY need to know about the details of the law at this point? Not really--promotion and endorsement do vary slightly from state to state, but that isn't the real concern (because the web transcends state boundaries, and therefore jurisdiction could be anywhere). And all the legal mumbo jumbo aside, we all know the general principle that "endorsement requires a release." You don't really need a law book to understand that. What you REALLY need to learn is whether the photo IS an endorsement. Does the manner in which it is displayed (such as what text is next to it) trigger "advocacy?" What can you look for? What kinds of pictures might be suggestive of promotion or endorsement? Does it happen a lot? Or rarely? What's the likelihood of this being a concern?

 

I have each and every book that craig listed, and have read the websites he listed (and many more) thoroughly, yet none even broach any of the subjects I just listed.

 

There's no question that lawyers are really great at getting legal advice once facts are known and established. And they can also be really useful for trying to maneuver you out of a pickle should you really get into one. But it's another matter entirely to assess situations independently of law. For that sort of thing, you're much better of asking people who study the subject from a different, broader perspective--a business perspective. Sure, some lawyers have that, but people don't pick lawyers for their business savvy--they pick them for their legal knowledge, and in most cases, that's not really what you need.

 

Some of the best books on law (analysis, interpretations by the courts and other matters of this nature) were written not by lawyers, but by reporters, journalists and other experts in the field that do not have law degrees.

 

by no means am I suggesting that "the law" isn't important here. It is. And understanding it is critical as well. Yet, there mere quotation of legal code -- which is done by all the links craig provided -- is simple and straightforward, and almost everyone can read and understand them to get the general intent. Indeed, even the interpretations of that code, which is slightly more involved, is stuff that most reasonably educated people can do. But these don't help you make business decisions--it's understanding subtle nuances of real-world scenarios so you can assess whether something is getting close to "breaching" the law that's the hard part. (For example, in "the law in plain english" is a great little book of cliff's notes about law, but the tiny section of it that deals with model releases only cites "laws" and a few court cases that illustrate when laws were broken and how. But where's that fuzzy middle ground that 99% of photographers are really in? Where's the real info they really need to learn? Thinking, not memorizing law, requires a different, pragmatic understanding.

 

So, now that we know there are all those law books out there that talk about how you need a release to have someone's photo on your website if it constitutes an endorsement, most people would come away with the assumption that they need such releases for photos on their websites. Yet, in the 5+ years that I've been studying the subject (which includes legal research and interviews with lawyers and judges and photographers), there is no case on record where a court has actually ruled against a photographer for having infringed on someone's publicity rights in this manner. In fact, in the case of Corbis vs. James Brown, the court found that a website can even SELL photos of people (in this case, james brown) without a release. The use of the site is called 'vehicle of information' and the sale of photos is not considered commercial use for purposes that require consent.

 

Granted, no book is legally flawless--whether written by lawyers or well-studied industry experts--but that's not the part that matters. Law is an art, and it's ephemeral at best. Knowing "law" is only useful if you are also taught how to THINK.

 

dan

 

[craig_gillette]

Dan points out that he doesn't know if the use on the site as an example of the OP's work would require a release.

 

Neither do I. Get competent legal advice.

[argv]

> Dan points out that he doesn't know i

 

No, I didn't say that. I said that ONE CANNOT KNOW in general without seeing a specific example and making an assessment based on factors that have nothing to do with the law. The law only addresses what happens IF it's been determined that the use implies endorsement.

 

And "getting legal advice" is not so simple, even if you tried. Getting the right lawyer is expensive, and knowing whether the lawyer you got is "competent" in this field is itself a crap-shoot. Giving people the blanket advice to 'just go get a lawyer' is worse advice because they're going to spend a lot of money and get potentially nowhere (or worse: bad advice). It's just plain too simplistic and naive.

 

Learning the basic principles is really the best solution here, and that's not hard, nor does it require a lawyer.

[victoria_harris1]

Thanks for all of the tips!

[craig_gillette]

Oh, are we going to continue with the twist the words game? Because you've left us with so much more to work with.

 

Fair enough. One must have the specific details of the application to determine if it's possible to be an infringement. Since the specific details weren't provided no one else would necessarily be able to say if it's an infringement either. So it's perhaps unfair to suggest that just Dan and I don't know.

 

Dan suggests his book is a good place to start getting a broad pragmatic business sense of the issues. It may well be.

 

When I move from the ephemeral or the areas of the law with which I have experience to the ugly little legal specifics, I'm calling the relatives and friends that are lawyers.

[tony_hobbs]

What if you take pictures in a "paid for place" say a cricket ground or bird sanctuary with people and of course the property in - can you supply the pictures to a library for EDITORIAL use?

 

Can you be stopped from taking pictures if you have a professional level camera and lens that "stands out a bit"?

[argv]

> What if you take pictures in a "paid for place" ---

 

There are two issues involved: the people who are the subjects of the photos, and the property owners.

 

Taking each in order: if the people who are there have a "reasonable expectation that they could be photographed without their knowledge," then you can take their pictures and license them for editorial uses without a release. Their rights to privacy is dictated by that test only--it's independent of whether they property they are on is private. Of course, if it's their own property and in their own home, there is no "reasonable expectation that they could be photographed," so you cannot take their pictures without permission, nor could you publish them, even in editorial contexts without a release. As you emerge from their home into a more publicly visible place, then those expectations gradually diminish... as you get into places where the public congregates, as in the kinds of places you just asked about, then the expectation that you *could* be photographed is higher.

 

As for the other part to this: The fact that the bird sanctuary is private property has nothing to do with the photo subjects' rights to privacy. However, the property owners can do anything they like, such as stopping you from taking pictures and even confiscating your camera.

 

All of this is addressed in detail in a link provided earlier:

 

http://www.danheller.com/blog/posts/when-editorial-uses-of-photos-require.html

 

dan

[tony_hobbs]

Thank you, Dan, can I ask about Property Releases?

 

Scenario - my father owns a pharmacy shop. I photograph his shelves of stock, ie tablets etc quite close up and him serving someone with boxes of tablets in the background. Technically he will sign a MR and a PR form.

 

The question is partly in relation to Alamy's criteria on PR requirements. They ask is a PR required and do I have one, or does it not require a PR. There is a lot on the Alamy forum on this and it is very worrying and confusing.

 

1, Can I say a PR is needed and I have a PR, or 2, should I say one is not needed, or 3, should I say one is needed and that I don't have one - even though I "do"?

 

What I do gather from Alamys' forum is the TM issue?

 

I hope that makes some sort of sense?

 

I also hope you don't mind me asking.

 

Best, Tony, UK.

[alec_myers]

In the UK there's really no such thing as a property release. Property doesn't have a right of privacy (inanimate objects don't have rights) nor do people have any rights over photographs of their property so there's nothing to be released from.

 

I'm sure Dan will have more to say, but Alamy's requirement is basically a CYA exercise.

 

Incidentally, the more people who ask for a property release, the more people think that one is required - so I think it's a bad idea.

[argv]

The same is true in the US as well: property doesn't have a right of privacy and publicity. The entire idea of "property releases" is born out of a misconception of what the word "property" means. The whole thing started many years ago when specific companies were suing for trademark infringement for particular uses of photos of their buildings, which themselves happened to be trademarked as part of their logo for business. The TransAmerica company has a building, for example, and it uses the building's unique design as a logo for their insurance services (and other things). Therefore, a use of a photo of that building in manner that could cause confusion about whether there is an affiliation with the TransAmerica company would require consent from the company. That consent form is a "property release". What is the "property" in question? it is NOT building, it's the "trademark." That is the property. However, photographers long ago missed that association, and have ever since assumed that property releases apply to buildings or anything else owned by people.

 

And many lawyers who do not practice "intellectual property" or "First Amendment" law also do not know this. Similarly, almost every stock agency doesn't know this. And the major reason why is: it's in absolutely no one's financial interest to correct the problem. Building owners LOVE to be asked for consent to use photos of their buildings: they get license fees for them.

 

Property releases apply ONLY to copyrighted and trademarked items, and they are only necessary IF AND ONLY IF the ultimate publication of the photo would cause confusion about the source of the sponsorship or advocacy (well, other things too, but more specific to copyright and trademark law).

 

Now, when do you need a property release? Interestingly enough, no one can possibly know that in most real-world scenarios, since the real assessment is going to be subjective to the viewer. It is precisely for that reason that only the person who puts the photo into use (publishes it) is solely and wholly responsible for the liability, NOT the agency, and NOT the photographer. Most importantly it's not THEIR opinion that counts. Another factor is that the smallest and most subtle changes on the layout of the ad in question, such as a word or a juxtaposition of a photo on a page, can turn a photo from being completely innocent to a trademark infringement. And the buyer (publisher) can change his mind at the last second as to whether such a change is made. So, again, stock agencies and photographers are not in control of this, nor are they in a position to know. And even if they did, their opinion about whether a release is necessary is not what matters: it's the publisher's opinion (and that of his lawyer).

 

PLEASE READ the primer on all this stuff: examples are given and court cases cited and details are provided:

http://www.danheller.com/biz-trademarks

 

Even far more detail is provided in my book on model releases:

http://www.danheller.com/model-release-book

 

dan

[scott aitken]

You may or may not REQUIRE a model release to use them as an example on your

website, but it might be prudent to do so anyway.

 

In the US, parents can be extremely overprotective of their kids. More so than just

about any other country I've been to. If you use a photo of someone else's kid as a

sample on your website without the parent's permission, you may have to deal with a

supremely pissed off parent, even if you are legally in the right. That parent may go

screaming to the league, the school, and other parents, trashing your good name. You

may be legally correct, but have your business reputation damaged anyway. A simple

release and the consent of the parent can easily prevent all that.

 

Sometimes it is about the law. And sometimes it is just about good PR and a customer

friendly business practice. If shooting kids was a large part of my business, I would err

on the side of caution, and get releases for photos I use as samples on my website.

[argv]

> Sometimes it is about the law. And sometimes it is just about good PR

 

Indeed--this is always the case, and it's a message that's often lost in the discussion of whether releases are "necessary." Still, it's important to discern between the two, so as to avoid real confusion. It's very easy to see someone talk about good business sense advice like this and for others to take it as a "legal advice," which it's not.