Not obtaining a model release can get you in trouble, especially if you’re an artist, photographer, writer, journalist, blogger, and the list goes on. Privacy rights vary by state, but generally there are four areas of privacy that are protected by law; (1) Public Disclosure of Private and Embarrassing Facts, (2) False Light, (3) Intrusion and (4) Misappropriation. Lawsuits can be avoided by obtaining a model/photo release that specifically outlines how the image(s) of a person and/or property of that person, will be used.
A release is an oral or written agreement between you and the person in the image(s) you are planning to publish, or the person who owns the property in the image(s). An oral agreement is technically protected by law, however it is much more difficult to prove, so getting the release agreement in writing will both protect you from any future lawsuits that might be filed against you by this person and will provide tangible evidence as a defense against claims of violations of privacy rights.
It is an individual choice as to whether or not to obtain a release however, it’s still always a good idea. In a recent article, Model sues after HIV-positive ad, the image in question
was taken several years before it was even used in the HIV ad that it turned up in. The photographer never obtained a release, and sold the image to Getty Images, who then gave rights to use the image to the New York state Division of Human Rights who paid for the HIV ad that ultimately used the image in question. The subject of the photograph sued for defamation and the selling of her image without her consent.
Photographer Clare McCaffe of http://www.wiggoddess.com located in Montpelier, VT states, “I have one permission release I ask the person to sign…it allows me to use their images on my websites and in advertising..however..if they see their face too much or change their minds….I’m so glad to not use the images….my customers own the pics…I do not.” She allows her customers to use their images however they choose. She further states, “it also states in all the correct terms that I’m not liable if the pics are used by any other party (Web Pics) for anything other than the intended use.” to avoid any issues with social media sharing, etc.
Leslie Burns tells Shutterbug, that instead of getting a release anytime a photograph “might” need a release, “I’d prefer photographers to think ‘I will get a release whenever I can.’ That shift, to getting releases, can make a huge difference down the line.” As the HIV-positive ad has shown, a passage of time does not make a difference in requiring a release to use an image. Burns further states that a release should be obtained even if, “the image of the person or people is “just” for fine art photography or for inclusion in a photographer’s portfolio.” It is important to protect yourself in any situation where you are using an image of a person and/or their property, regardless of intended use at the time the image was taken.
Advice from thelawtog.com, If a person refuses to sign a release, you have the choice to accept that and only keep the images between yourself and the individual, you can offer a release that is limited in order to satisfy both of your needs, even if minimally, or you can stick to your policy and refuse to take any images at all.
The use of releases has become so popular that you can now purchase an app for your smartphones called ASMP Releases. Apple defines that app as, “The American Society of Media Photographers (ASMP) offers this model and property release app. A must have app for professional photographers working in all genres of the business. Photographer can customize a Model or Property release using the ASMP standard releases. The app allows you to create templates, take a photograph of the subject, specify the uses for the image”
Perhaps the only exception in requiring a release is any image that is taken in a public space, or in some cases, that can be seen clearly from a public space (see this article). According to The Photographer’s Right, “The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs.”