Model Releases 101

Model releases are like an ounce of prevention. They're annoying--what paperwork isn't?--but they can certainly spare you headaches and expense.

Consider, for instance, the recent case of an Ohio woman who sued a photographer, his agency and a greeting card company for invasion of privacy after a picture from her wedding--showing her drinking out of a liquor bottle--appeared on a greeting card with the title "Intoxicating Love." The woman, now a mother of three and active in her local Catholic church, says she never gave permission for use of the photo on the card.

That case is pending, but there are others, such as the notorious case of a family portrait gone astray. Shot on commission for the family, the photograph found its way to the photographer's stock agency. It was eventually distributed on a royalty-free CD, and ended up in print ads and on billboards all over the country, promoting various products and services. The family, which had never signed a model release, sued and collected nearly $2 million in damages.

Photographers have rights of free expression, but the privacy rights of their subjects prevail when the pictures appear in a commercial context. Enter model releases, which are written agreements signed by the subjects of photographs to allow photographers to commercially exploit the photographs. Model releases don't guarantee against claims--after all, anybody can sue you for just about anything--but a good release can reduce a photographer's legal risks and liabilities substantially.

Model releases will protect you in most cases if you have a basic understanding of privacy law, and if you follow a few commonsense guidelines. Here's a checklist:

1. If you shoot commercially or think you'll ever want to use your pictures commercially, get model releases.
In many states, privacy laws prohibit photographers from using someone's image for trade or advertising purposes without permission. Such uses include advertisements, promotions and product packaging, as well as products for sale--such as calendars, posters or greeting cards.

New York law, for instance, expressly forbids the use of one's name, portrait or picture for trade or advertising purposes without a signed release. Other states may not have privacy statutes but assume a common law right to privacy instead. Either way, if you don't get a model release, you can be sued for invasion of privacy and forced to pay damages.

Of course, you don't need a model release for editorial use of your images. For instance, if you photograph an elated lottery winner for use in a newspaper, you don't need a release. But if you want to license your lottery winner photo to the state lottery commission for use in an ad, you have to get a model release. And don't succumb to the temptation to license your picture without a release, thinking your subject will never ?nd out. Chances are she will, and the license fee you get for your picture will almost never pay your lawyer's fees and penalties if you get sued.

2. Be extra careful when using photographs of celebrities in a commercial context.
Public ?gures--politicians, movie actors, TV and radio personalities, rock stars, and other celebrities--generally enjoy less privacy protection under the law than most people. But don't let that fool you into thinking you can license your pictures of, say, Martha Stewart to sell housewares (or bail bonds).

Why? Because many states have so-called right- of-publicity laws that grant individuals control over the commercial use of their name, identity and likeness. And unlike privacy laws, right-of-publicity laws usually extend beyond a person's death, so heirs or estates can control the use of a person's image after death.

Courts have upheld the right of celebrities to control commercial use of their identities. R.J. Reynolds once used a picture of race-car driver Lothar Motschenbacher's car in a Winston cigarette ad without authorization. He sued, arguing that the picture implied his endorsement of Winston cigarettes. The court agreed and ruled that R.J. Reynolds invaded the race driver's "proprietary interest" in his own identity.

3. Use a broad and legally effective model release.
Model releases provide more or less protection, depending upon how they're worded. If your release is vague and general ("I hereby authorize commercial uses of these pictures"), you could easily get sued for some defamatory use of the pictures that you and your model never anticipated.

On the other hand, a release can be so narrowly written that it allows only one speci?c commercial use.

Most photographers (and their stock agents) need model releases that allow for a variety of commercial uses that cannot be predicted in advance. One strategy is to use a release that describes how pictures may be altered, and warns models of the consequences of potentially libelous uses.

The Picture Archive Council of America (PACA), for instance, offers a sample model release that says in part, "I hereby release, discharge and agree [to hold the photographer] harmless. . .from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in complete form, whether intentional or otherwise. . .even though it may subject me to ridicule, scandal, scorn and indignity."

Subjects of commercial photographs have a right to sue for perceived damages, even if they've signed a model release. The advantage of the PACA release is that it is so airtight it is likely to dissuade aggrieved models from suing in the ?rst place.

4. Protect your models--and yourself--against defamatory uses.
There are few (if any) successful claims for defamation against photographers or clients by photo subjects who have signed broad releases. But you can reduce the risk of claims by taking steps to avoid sensitive uses of your images in the ?rst place.

Sensitive uses generally include ads or promotions related to alcohol, tobacco, infectious disease, medications and drug use, sex and sexual orientation. The problem, however, is that sensitive uses aren't limited to that list, and you never know what a particular model will object to.

Ask models before you hire them what uses they might object to. The more restrictions they want to impose, the more dif?cult it will be to sell your images. But if you want to use a model who feels strongly about his or her image being associated with a particular product or service, include those restrictions on the model release, advises New York attorney Nancy Wolff.

In addition, write into your agency contracts and license agreements that defamatory uses of your images are prohibited, she says. For uses that might be considered un?attering, include language in your license agreement that requires the user to state that the model appears for illustrative purposes only and does not endorse the product or service.

Betsy Reid, executive director of StockArtists Alliance, says her contract with her stock agency states explicitly that sensitive uses are not allowed. That reassures models they won't be defamed, despite language on a good model release that says they could be, she notes.

Another strategy is to get special permission prior to any questionable use. Big advertisers often take that approach. But locating the model may be dif?cult. "It's better to stand behind a broad model release, and have the restrictions [from the model] in advance," Wolff says.

5. Beware of other releases or contracts signed by the model.
If you're photographing models hired by someone else--say, an ad agency or another client--watch out! The contract (called a model voucher) between the model and the third party who hired her may be more restrictive than your own model release. If that happens, then your model release may not protect you or your client.

For instance, when Wyeth-Ayerst Laboratories decided several years ago to update labels and promotional materials for a line of vitamin products, the company's ad agency hired models Alina Hernandez and Susee Kilbanks to pose for the photographs. The ad agency's contract with the modeling agency speci?ed limits on the use of the photos (one year brochure and packaging). The contract also said, "this release takes precedence over any release signed at the time of
the job."

Sure enough, the photographer subsequently presented the models with a release at the photo shoot authorizing use of the photos "forever hereafter" in relation to the vitamin ads. Wyeth-Ayerst ended up using the photographs for well over a year on the strength of that release. The models sued and won nearly $100,000 each. The court said, "The voucher's limiting language renders the subsequent releases inoperative."

6. Know the model's age--and get a parent or legal guardian to sign releases for minors.
In most states, minors are either barred from entering into contracts by themselves, or they are allowed to back out of them easily. So you have to get a parent or legal guardian to sign the model release. Otherwise, you expose yourself to potential liability.

In one instructive case, a 14-year-old model sued YM magazine for unauthorized use of her image. Even though the model had signed a release, she alleged the magazine didn't have consent because her parents hadn't signed the release. A jury ruled in the model's favor and awarded her $100,000. The decision was eventually reversed, but only because the use was deemed newsworthy, so the model release wasn't necessary. Had the use been commercial, it is likely that decision--and award-- would have withstood appeals.

On the other side of the coin, courts have af?rmed the validity of releases signed by parents or guardians. A California portrait photographer, for instance, was sued for invasion of privacy and other claims after licensing a portrait of an infant for use in notepads, calendars and puzzles. But the court threw out the case because the infant's mother had signed a model release.

"A release of a minor's rights, signed by a parent, is valid under California law," a state appeals court judge ruled. (The parents were also ordered to pay all of the photographer's legal expenses.)


7. If possible, attach a photocopy of the model's driver's license to the model release.
There are at least two reasons for doing this. First, it is a good way to verify the model's age (see Tip #6 above). Second, having a photocopy of a driver's license helps verify later on if necessary that the signature is valid. "There are cases in which someone is sorry they signed a release, and claimed it's not their signature," says Wolff.

For sample model releases from PDN, you must be an online subscriber. Visit the Features section of PDN's Web site www.pdnonline.com

This article originally appeared in the August 2004 issue of Photo District News