A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Question: Do I always need a model release when I’m photographing people?
Answer: Not always. However, it is a best practice to get a model release if the person you plan to photograph may have rights such as publicity or privacy rights. And, some states require model releases.
RIGHTS and WAIVERS
“The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some select, irregular- Vity, or wrong. The passing by of an occasion to enforce a legal right, whereby the right to enforce the same is lost… This word is commonly used to denote the declining to take advantage of an irregularity in legal proceedings…”
We all have lots of rights. We all don’t enforce every right we have every chance we get – if we did, living in harmony with our fellow human beings would be even more difficult than it is now. Therefore… we have waiver. This is generally true throughout law. If a person has a right, that person can waiver it. Rights and waivers go hand in hand.
Sometimes the ability to waive your rights is a bad thing – it encourages people to waive themselves into situations where they can be victimized. It’s good to be aware that there can be laws, or judicial decisions, limiting the ability of people to waive their rights.
Normally (but not always), the only person who can waive a right is a person who owns, or holds, that right.
Can I waive a right I don’t have? No, of course not. What happens if I waive a right that I don’t have? Usually nothing.
If I waive a right that I do have, then I can’t enforce the right.
If I waive a right that it turns out I don’t actually have, then I still can’t enforce the right.
What is a model release? It is a contract in which a person, a model, waives his or her rights, if any. Usually the release is signed (the model’s rights are waived) in exchange for the fee the model gets paid.
What rights are waived? Any rights that are specified in the model release contract. Usually the release lists the things the photographer might possibly wants to do with the pictures that contain the model’s image, and the model waives her rights (if any). Most often, the rights waived are the model’s privacy and/or publicity rights, if any.
If I am the artist or photographer, do I feel the need to do a lot of legal research to find out what the model’s privacy or publicity rights might be before I write the model release? Under ordinary circumstances, probably not (although, just to be clear, I don’t ever advocate skipping the research and understand the relevant law part of the contract drafting process). I just write a description of what I might use the pictures for. As long as I stick to using the pictures the way the model release says I can use them, it isn’t likely that I will have problems with the model objecting or suing me.
In the situations where I use live models (mainly to pose for drawings or paintings), a model should not be shocked and offended if I publicly display the art in art galleries, on the internet in social media etc., in my promotional materials, or I might sell prints or other gift items with the image on them. I might not use that exact language to draft the release, but whatever release language I use would capture those types of uses, plus anything else I might want to do with the art.
PRIVACY and PUBLICITY RIGHTS:
PRIVACY RIGHTS: Privacy rights are “the right to be left alone.” There are a number of different privacy rights that are recognized in U.S. Supreme Court cases. For a short, relatively concise discussion of federal privacy rights, see: https://www.livescience.com/37398-right-to-privacy.html
The above article discusses “Right of Publicity”
“Just as a person has the right to keep personal information private, he or she also has the right to control the use of his or her identity for commercial promotion. Unauthorized use of one’s name or likeness is recognized as an invasion of privacy.
There are four types of invasion of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light…”
There is a lot of law in this area, too much to discuss here with much accuracy or completeness, except to mention that U.S. Constitutional privacy rights do not include publicity rights regarding the use of a person’s image. The case that establishes this is Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). A photograph of Abigail M. Roberson’s face was used without her consent by Franklin Mills in their advertisements for flour. The advertisements – and her face – were everywhere, and Abigail was extremely embarrassed by all the attention. Abigail sued, and lost. There are a lot of articles on the internet discussing this case, for example:
and, if you would like to read the court’s decision: https://www.courtlistener.com/opinion/3641834/roberson-v-rochester-folding-box-co/
Because there is no *federal* privacy right respecting publicity, the law that really matters is state law. Unfortunately, the different states’ privacy/publicity laws are not all the same.
A large portion of the law on publicity rights is about celebrities. It addresses different ways that people have used celebrity images. Celebrity status often has commercial value, and in publicity-rights law much of the focus is on whether the use of the image is “commercial” or not. If you are using a celebrity as a model, or source, for your art or photography, it helps to pay extra attention to whether you need to have permission to use the image in whatever way you plan to use it. A model release for a photo session with a celebrity or public figure might have more detailed language addressing publicity rights than an ordinary model release would contain. Whether your subject is a celebrity or not, the more commercial your use of the image is, the more likely it is that you might get sued for violating the subject’s publicity rights.
An attorney, Jonathan Faber, put together a website that makes it relatively easy to find out what the publicity rights laws are for each state: http://rightofpublicity.com/statutes. This website has a lot of other information about publicity rights, as well as a blog & a place where you have the opportunity to ask questions on publicity rights issues.
STATE LAW PRIVACY RIGHTS
For state-law privacy rights, the main focus is often on whether the subject had an expectation of privacy. In situations or places where there is no expectation of privacy, then generally (but not always), it is not a violation of privacy rights to take photos of the people you see, and use (use within limits) photos of those people.
For more detailed concise discussions of privacy rights and photography, see these articles:
To search for the law, and a summary of privacy law cases by state, see this website (click on the name of the state to pull up the summary):
Sometimes the exact wording of the state law matters, and sometimes when the state law yields unacceptable results, the state legislator will change the law in an attempt to solve the problem. Two cases famous that come to mind:
NEW YORK: Svenson, a photographer, took photographs of his neigbors through their apartment windows. He then displayed the photos at an art gallery show. The neighbors sued, and lost.
If we read the case in detail, we find that the decision was based on the exact wording of the applicable New York statute. I get the sense that the judge was not completely comfortable with being forced by the language of the statute to decide in favor of the photographer.
Judge Renwick’s decision states, “…This case highlights the limitations of New York’s statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one’s home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant’s use of the images in question constituted art work and, thus is not deemed “use for advertising or trade purposes,” within the meaning of the statute.”
MASSACHUSETTS: In Commonwealt v. Robertson, 467 Mass. 371 (2014), the Massachusetts Supreme Court decided “…whether G. L. c. 272, § 105 (b) (§ 105 [b]), which prohibits secretly photographing or videotaping a person “who is nude or partially nude” in certain circumstances, includes “upskirting.”
In this case, a photographer was caught on the public transportation system taking photographs of whatever could be photographed up women’s skirts. The exact language of the statute required the court to find that upskirting was legal. The legislature responded very quickly by changing the law to make upskirting illegal. They changed the definition of “partial nudity,” see Section 105: Photographing, videotaping or electronically surveilling partially nude or nude person or the sexual or other intimate parts of a person around the person’s clothing; exceptions; punishment. For the full (not necessarily G-rated) text of the revised statute, see: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section105
And for a quick summary of the case, and the legislative solution:
Some states have unusual laws that apply in specialized situations, for example:
COLORADO: Colorado has very strict “revenge porn” privacy laws. In this state, it would be a very bad idea to post intimate pictures of your lover on social media, without first getting your lover’s permission to do that. Written permission would be best, because, well, if the permission is verbal, then you could have some difficulty later proving that permission was provided.
“Revenge Porn (Colorado Only)
In 2014, Colorado enacted some of the nation’s toughest revenge porn laws. It is particularly important that you have a privacy lawyer in Colorado for these cases. The laws give revenge porn victims a private cause of action and require mandatory damages awards when plaintiffs prover their revenge porn claims. This makes it easier for plaintiffs to recover actual damages than they could when they were limited to using Colorado’s common law invasion of privacy claims. The new laws also give revenge porn victims enforceable intellectual property rights in images that depict their private intimate parts.
‘Revenge porn’ is sexually explicit media, including photos or video, shared online through the use of social media like Facebook and e-mail, without the consent of the person in the picture. This is a serious invasion of privacy and goes against the privacy act.
When images and videos are shared outside the intimacy and privacy of a relationship for money or harassment, the effects can be long-term and far-reaching, including severe emotional distress, lowering one’s reputation in their community, and even losing a job. If you find yourself in this unfortunate situation, call one of our privacy lawyers in Colorado today.
Colorado privacy act provides both a criminal charge and private right of action for person that have had their intimate photos or videos shared online by those that wish to harass or inflict emotional stress on them without their consent or when the images were reasonably expected to be kept private, thus resulting in an invasion of privacy.
Individuals in Colorado also have an intellectual property right of authorship in the commercial use of intimate pictures of themselves. Those that profit from posting another’s intimate pictures or videos without their consent or when there was a reasonable expectation that the images were intended to be kept private are also liable under Colorado law…”
SOME STATES REQUIRE MODEL RELEASES
According to the Professional Photographers’ Association, there are some states that require model releases. For a list of the states and their requirements, as well as a sample model release, see: https://www.ppa.com/assets/documents/modelreleasewhitepaper.pdf
SAMPLE MODEL RELEASES
There are a number of websites that provide sample model releases. I don’t advocate any one particular model release. The business arrangements between models, artists, and photographers vary. So do the laws in different jurisdictions. So… use your judgement when choosing a sample model release, and choose something that is appropriate to your situation. Read the template. Make sure it makes common sense to use it for your situation.
A contract that just has a bunch of words in it that don’t capture the agreement can be worse than useless. Don’t expect models to sign releases or other contracts that don’t accurately express your agreement, and obviously you shouldn’t sign contracts that don’t accurately express the agreement either.
Here are just a few of the many websites providing sample model releases:
EVEN IF IT’S NOT ILLEGAL….
It is a best practice to ask permission before using someone else’s face or image in your art or photography.
Not everyone likes to have their picture taken. There are the people who are just shy, or they don’t like how they look in photos. There are also people whose cultures or religions restrict or prohibit the capturing of human faces or bodies in photos or other images. Or they have legitimate personal reasons why they don’t want to risk having pictures of themselves spread all over social media (for example, they don’t want a stalker to be able to figure out where they are).
Even if it is not illegal to take photos of people who don’t want their pictures taken, it is rude, in some cases it is deeply disrespectful, and there is a small possibility that you could inadvertently expose your subject to danger. If it’s a minor, ask permission from the parent or legal guardian, as well as the child.
A note on street photography. There is a legitimate debate about whether it is a good thing, or a bad thing, to do street photography. It is a complex issue. There is, undoubtedly some great art, great photojournalism, and a level of public awareness and advocacy that comes from photographing homeless people and others whom we find inhabiting our streets. That said, many of us take for granted that when we wake up in the morning, we can brush our teeth behind a closed bathroom door, without worrying about strangers pointing cell phone cameras at us when we have toothpaste drooling out of our mouths. If a homeless person is brushing their teeth at a park water fountain instead of in a bathroom with a closed door, maybe it’s not because they really want passers-by taking pictures of that. I’m not sure where it is, exactly, but there has to be a line beyond which it is not ok to take photos of people who lack the resources to do private activities in private places.
THE MODEL RELEASE AS A BEST PRACTICE
Suppose you are in a jurisdiction where the model doesn’t have any privacy or publicity rights. Why would you use a model release? Because, in a sense, it is a very abbreviated form of employment contract. It clears up potential misunderstandings about what the job is *before* the model poses, and the photographer starts snapping pics. A release can state what the compensation is (the model fee amount, for example), and anything else that seems important. Taking five minutes to read and sign a release makes it clear to both the photographer/artist, and the model, who owns the pictures and what the photographer/artist might possibly do with the pictures.
If the model is a minor, it is very important that the minor’s legal guardian read and sign the waiver. Generally minors don’t have capacity to contract (a waiver of rights by a minor might not be enforceable), generally the adults who are legally responsible for the minors do. And, of course, it is important that the uses contemplated by the waiver are legal. For example, a model release would probably not be effective to magically make it ok to do things with photos that are illegal under applicable pornography laws.
COPYRIGHT and TRADEMARK
First, let’s clarify that model releases normally don’t have that much to do with copyright or trademark law.
In the rare event that you are somehow capturing a trademark, or something copyrighted (maybe a tattoo, or T-shirt design?) in your photo of a person, you might need to address the copyrights or rights to use the trademark in your model release. Of course, if the model doesn’t own the rights to the image on the T-shirt she’s wearing, a model release won’t help you – if you need a permission to use the T-shirt image, you have to ask whoever owns the rights to the T-shirt image.
COPYRIGHT: You can’t copyright a body part, or your face, because your body or your face are not creative works. You can copyright a picture of your body, or a picture of your face, though.
There are newbie models in the world who have never heard of copyrights, and if they have, maybe they don’t realize (until they read the release) that the art and copyrights to the art that is generated in the photo session belongs to the artists/photographers, not the model.
I find it helpful to include in a model release some language addressing copyright ownership, and ownership of the original artworks. The language might state that the artist and/or photographer owns all the images, and the copyrights to all images generated pursuant to the modeling session, and makes it clear that the model does not have any rights to the art, or copyrights in the art.
This language probably isn’t required by law, but it does prevent nasty misunderstandings about who gets to go home with all the pictures of the model at the end of the day. Models should ask permission from the artists before they take cell phone pics of the artwork – that might also be a helpful thing to address in the release.
TRADEMARK: Trademark is trickier. Before we start talking about model releases, and trademarked faces and bodies, it helps to understand what a trademark (or service mark) is:
“What is a trademark or service mark?
- A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.
- A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods…” Source: https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf
If you’re using your face to identify goods or services, then it might be appropriate to trademark it. To make that work, your face or body has to be somehow transformed from something ordinary into a symbol, or design, that is identifiable and distinguishes the source of goods. You basically turn a part of yourself into a brand name.
Kiss, and some others, have trademarked their faces or bodies, but they have done so in the context of using the face or body to identify goods or services.
Trademarked faces: https://www.vox.com/2015/7/24/9022381/trademarked-faces
Trademarked bodies: It is possible to trademark a body, as well. Kind of. I don’t view trademarking a person’s face or body as a very useful thing to do. If you need a trademark, there are usually better things to use as trademarks. Naked Cowboy tried to trademark his body, and discovered that trademark enforcement can be difficult, for a number of reasons. For a more detailed discussion of why enforcement is so difficult: http://www.ipbrief.net/2012/02/29/naked-cowboy%E2%80%99s-trademark-suit-dismissed/
CLOWN EGG FACES:
The United States and Britain have clown face registries. The make-up designs are painted on eggs:
Sources and Further Reading:
Send in your questions
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