Do Your Photographers Need Model Releases?
Photo columnists, unaware of their First Amendment Rights, have been fanning the fires of this hotly debated question for decades. A wall of mythology has built up around the subject, and I'll make the first
You may now get up off the floor and sit back down. I'll ask you to be open to a re-programming process. First, a few questions: Have you ever seen a newspaper photographer ask for a model release? Did the video photographer in the Rodney King case ask the policemen or Mr. King for a model release?
If the photo you are using is informing or educating the public, you do not need a model release.
And this is where the confusion comes in. Here at PhotoSource International we encourage you to follow the trail of the new generation of new media. Its emphasis is the publication trade: magazines, books, and electronic media. About a million dollars a day are spent in this category of stock photography, whose essential use is to INFORM and to EDUCATE. Photobuyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. Short of highly sensitive areas such as drug abuse, sex education, mental retardation, certain medical subjects, religious issues, you won't find photobuyers asking for a model release.
“How and why was I under the impression that model releases are always required?" you ask.
Most of the teaching and training in the USA for people working in the photography field, is slanted to COMMERCIAL photography, where a model release is always needed.
As stock photography grew and became more prevalent, commercial photographers switched over to media photography, and brought along with them the rules for commercial photography: i.e. a model release is needed. Since most classic stock photography is used for commercial purposes, these photographers are right, a photo needs a model release if it is being used in the commercial sector (for advertising or promotional use).
Most of the horror stories concerning model releases that you may have read about have to do with commercial photography (for ads and in relation to sales and products for purchase), again, where YES, you do need a model release.
Enter the publishing world. Stock photographers, focussing on editorial (not commercial) photographs and operating in a free enterprise society, have a powerful law on their side, namely the First Amendment of the U.S. Constitution. The First Amendment in effect says anyone can freely photograph in public as long as they are not breaking any local laws, such as trespassing. Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment Rights, and in so doing, they protect photographers’ First Amendment Rights. If Houghton Mifflin, Harcourt Brace, etc. were to require model releases for the pictures they use, they would soon go out of business, because media photographers would not put up with the chore of getting model releases for slews of editorial, “non-posed” pictures.
This article opens the window and lets some fresh air in on this subject. If you've been relinquishing your First Amendment rights up to this point, I hope this article helps you regain them.
It would be a bureaucrat's dream for officials to be able to say, "You can't photograph in my school, my police precinct, my park." In reality, these people (school principals, policemen, etc) are our civil
There have been lawsuits, yes. If you examine each case, the plaintiff always goes after the publisher with deep pockets, not the photographer, and thanks to the First Amendment, the plaintiff rarely wins.
It bears repeating; model releases are usually not necessary in the book and magazine illustration field. The million-dollar-a-day book and magazine industry fiercely protects its First Amendment rights. Publishing houses fill swivel chairs at long oak tables with legal advisors, who remain steadfast in protecting their clients' side of the First Amendment, which is that when you are informing and educating, a model release is not necessary. The exception would be those rare cases involving highly sensitive subjects.
The bottom line is that you should leap over the wall of mythology that for years has surrounded this model release question, and recognize that photographers can photograph freely in public. The world will be a better place as a result of your efforts.
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com.
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