You don't need a model release for capturing photos, but it's often required when you are submitting your photos to a non-editorial publication, a stock photography agency, or use it in any other forms of commercial gain. Notice the term "often required" is used here, as in the world of copy-right awareness, privacy concerns, and commercial release, the fine line between legal obligations and business feasibility is a blurry one.
Let's start by looking at the definition of "Model Release" defined by Wikipedia:
"A model release, known in similar contexts as a liability waiver, is a legal document typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material are thereafter subject to the allowances and restrictions stated in the release, and also possibly in exchange for compensation paid to the photographed."
Intimidating? The WPD average-joe version is: Model releases are permissions granted by the person or model for you to use the images commercially. Most model releases grant you the status as the recipient of profits derived from the photos. Some model releases also provide compensation for the models (this is required in certain states such as California). The fundamental objective behind securing a model release is to waive you of any legal responsibilities in case your subject decides to sue you. Another take; model releases provide you with the legal right to sell more freely.
But how often does a photographer get sued? You might be surprised to find out it's rare; especially if the photographer is not the sole publisher of the photos. Since most photographers submit their photos to a third-party publisher, liability often rests with the publisher. It's the publisher's responsibility to inquire and determine the necessity of model releases, and the photo's qualification to be published. The determination of a model release requirement should be considered an equal importance not just from a legal perspective, but a business decision as well. The bottom line is: the more released photos you have, the wider selection of your "goods" you have in-stock to maximize your selling potential.
But even if you don't have a photo released, it's just as important for you to disclose that a photo is unreleased. So be sure to explicitly disclose all your photos' released status to your buyers. This approach not only waive you of liabilities (because your publisher already knows about your photo's status, and are instead responsible for using it), it also opens additional opportunities: your publisher may determine their use of your photo does not require a release, therefore pays for your unreleased image.
Beyond Commercial Requirement: Direct and Indirect Advocacy
Model release requirement is not limited to commercial use only. Circumstances involving direct and indirect advocacy also result in the need of a release:
Direct Advocacy – You are part of a local non-profit organization. You published a photo of a few smiley faces with the message, "Be a part of the XYZ movement!" Although this is not commercial use, and presents a blur boundary between editorial usages, the subjects in the photos are still advocating your cause. In this case, model releases are required.
Indirect Advocacy – A release would be necessary if the publication of the photo appears to be speaking for the subject, or revealing political or religions association. Example: a local athlete is featured in a church running event poster with the statement, "I never miss my weekend jog!" Even though the athlete is not wearing any recognizable brand-name sneakers.
The Stock Photography Market
Let's discuss the mostly likely buyer from a photographer: the stock photography market. The stock photography market is very keen on photography release status. It uses its own set of abbreviations:
MR – Model released.
PR – Property release: not covered in this article.
NR – Not released, or NMR, NPR.
NA – No application: many photos do not require model or property release, such as still life, open public views, abstracts, and landscapes.
NRec – Not recognizable: the subject can not be identified, such as human figures in a distance; the person is turned away or blurred.
Below is an example of key elements in a typical Agency Image Requirements Agreement:
Model and Property releases are required with all images where relevant and must be supplied in digital format.
Retouching: All potential commercial association logos and objects must be removed or blurred.
Metadata must be supplied digitally in IPTC, XMP, Excel or Text formats.
Stock photography agencies require photo model releases for their own legal protection. They often require universal releases on all photos to simplify qualification process, and to reduce cost. Although the stock photography agencies have every right to protect themselves, and may reject your submission due to the lack of a model release, this doesn’t mean you can’t find your photos to other buyer venues. After all, some of your photos may not need model releases at all. Use your knowledge to make your first assessment. Ultimately leave it to your publishers to determine if your photo could be used, but always reveal your photo model release status first!
>> (Page 2): Model Release Form Samples and Tips on How to Get One Signed
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