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Frequently asked questions about releases
Model release
Property release
Q: How do I know when I need a model release?
A: The answer to this question can be reached by asking a series of questions about the subject and the use of the photograph. A model release is needed from each person whose likeness appears in a photograph that is used for advertising or trade (business) purposes when the person is identifiable. Look at the photograph and the person(s) in it and ask these questions:
1. Could the person in the photograph be recognized by anyone? Be warned: It is very easy for a person to show in court that he or she is recognizable.
If the answer to question #1 is No, then you do not need a release.
2. Is the photograph to be used for an advertisement? (In law, “advertisement” is broadly defined.)
3. Is the photograph going to be used for commercial business purposes, like a brochure, calendar, poster, web site or other use that is intended to enhance a business interest?
If the answers to question #2 and question #3 are both No, then you do not need a release.
Otherwise, the answer is that you do need a model release.
Q: What is the legal age for signing releases?
A: Eighteen is generally legal age across the USA. However, it is an individual state determination, and we do not have the legal stats on each state. If you want to know the answer for any state, we suggest that you call the state attorney general, state solicitor’s office, or whatever your state calls its legal arm. You can also call local attorneys, as they could not pass the bar exam in their state without knowing the answer to that question.
A safe course is to use ASMP’s recommended release forms. You are well protected because we use the words “of full age,” which covers you in any state. (“Full age” and “legal age” mean the same thing in legal jargon. “Full” allows you to keep the word “legal” off the paper. Some folks fear the word legal when they see it on paper.)
When the subject is not of legal age, you must get the signature of at least one parent or legal guardian on the release. Getting the signatures of both parents is better, so that one can not seek to rescind the consent of the other.
Q: What are the differences between having a photograph appear in an ad and in a magazine’s editorial pages?
A: The two differences are the need for model releases (see an earlier answer) and money. Generally, photographs used for advertising are worth substantially more money to everyone involved than photographs used for editorial purposes.
Q: If I photograph a large group of people and plan to sell the picture, would I need model releases from every person?
A: If you just want to sell fine art prints, or even posters, you should be OK without releases. If you license the picture for use in a book, you should be OK without any releases as long as you don’t allow the publisher to put the photo on the cover of the book or use it in promotional materials.
But if you put it on coffee mugs or allow its use in any way that would be considered purposes of trade or advertising, you are probably going to be liable for the invasion someone’s right of privacy unless you have gotten releases from every person who is recognizable in the photo. A bank once made a photo of about 300 of its own employees standing in one of its lobbies. When the picture ran in an ad campaign, some of the employees sued the bank, and won.
Q: If I photograph a clown in the circus and the picture appears in a magazine, can the clown sue me for depicting his trade dress without permission?
A: If the photo appears as an editorial illustration, rather than an advertisement, he could sue you, but he probably would not win. Just like trademarks, trade dress can be shown in photographs as long as the use does not create confusion in the mind of the public as to the origin or ownership of the trade dress and the usage doesn’t damage the value of the trade dress.
“Trade dress” is like a trademark, in that it is unique or distinctive and helps to create a business identity for the clown. (The term is actually quite broad; the feminine shape of a Coke bottle is protected as trade dress.) To learn more about trade and related marks, go here.
Q: How do I know when I need a property release?
A: The answer to this question can be reached by asking a series of questions about the subject and use of the photograph. A property release is advisable and may be needed from each property owner whose property appears in a photograph that is used for advertising or trade (business) purposes when the property owner is clearly identifiable by the property. (Note that the owner can be a corporation as well as an individual.)
Look at the photograph and the property in it, and ask these questions:
1. Could the owner of the property in the photograph be identified by anyone just by looking at the photograph of the property?
If the answer to question #1 is No, then you do not need a release.
2. Is the photograph to be used for an advertisement? (In law, “advertisement” is very broadly defined.)
3. Is the photograph going to be used for commercial purposes, like a brochure, calendar, poster, web site or other use that is intended to enhance a business interest?
If the answers to question #2 and question #3 are both No, then you do not need a release.
Otherwise, you do need a release.
When doing this analysis, remember that a property can include, or even be, a trademark. Depending on the details, use of another’s trademark without permission may be a violation or dilution of the mark. For example, if you photograph a building with the logo of ASMP on it, you have to have permission to use it for advertising or trade purposes. Why? because the logo is the property of ASMP. What about the building the logo is displayed on? This is more complicated question. To learn more about trade and related marks, go here.
Q: Can a property owner prevent me from taking pictures of his building, car, etc. from the outside? From the inside?
A: If you are taking the picture from a public place, and the subject is visible from that place, the owner does not have a legal right to prevent you from making photographs (although you could end up with broken equipment or anatomy). The answer is different if you are taking the picture inside (or on) private property. There, the owner gets to make the rules, and if he/she/it says no photos, then you can’t take photos.