If you have ever worked with a model, you’ve probably heard of the concept of model releases. Here is an explanation of when you need them and what kind of language they should contain.
What Are Model Releases?
In short, photographers are protected from other people using their photographs by copyright law. Models (I’m using that term loosely to include anyone who gets in front of the camera) are protected from other people using pictures of them by privacy laws. The privacy laws vary from state to state, unlike federal copyright laws, so be sure to check your state laws for the specifics. So, just because a photographer takes a picture of a person, it does not mean that the photographer can use that picture for any purpose just because they own the copyright to that photo. The privacy laws usually deal with the commercial use of a photo. For example, if you took a picture of Tom Cruise, you couldn’t use that picture in an ad just because you own the copyright.
Broadly speaking, a release is a document that you sign “releasing” your rights to something. A model release is where a model gives up his or her privacy rights and allows pictures of them to be used by other people. What rights specifically the model gives up and whether the photographer needs the model to release any rights is where it gets murky.
Typical Model Release Language: What the Model Is Giving Up
A standard model release will usually be between two paragraphs and two pages depending on how verbose it is, but still will only have two general categories of rights that the model is giving up:
- The right to be paid from the use of any pictures.
- The right to object to the use of any pictures.
Here’s where it gets tricky. Let me come up with a complicated hypothetical scenario to illustrate some of the common issues that arise in this area.
If she signed a standard model release, there’s not a whole lot she can do. Be aware that it is fairly standard for model releases to have the model giving up all rights to be paid and all rights to object to their picture being used. The reason is that in commercial work, the model is typically paid a modeling fee, and there are professionals who are in charge of making sure the best picture is used for the branding of the company. You have an established photographer and an established modeling agency working for an established brand, so things would just be needlessly complicated if the model had say over the creative director on which photos are used.
Common Issues in Model Releases for Amateur Shoots
Most of the problems come up in TFP or semi-professional/amateur shoots where the parties involved are not established and the shoot is for portfolio-building purposes. If you fall under this category and are working with non-established people, make sure you understand what rights you are giving up.
Because the laws governing these issues vary from state to state and country to country, I’m not going to go into the specific legal advice of what language to use. Instead, I’m going to just highlight topics that need to be discussed and possibly incorporated into a model release so that both sides can be happy and free to create with less fear.
- Is the model consenting to the use of all photos including photos that might be unflattering or inappropriate? Is there a category of photos that the model is specifically not consenting to their use, such as wardrobe malfunctions? A model friend of mine was at a fashion runway show and the material she wore seemed very conservative, but when hit with a flash, it became pretty sheer, and she was surprised to have pictures posted online where you could pretty clearly see nipples. So, is the model agreeing to absolutely every picture the photographer could possibly take being used or just certain photographs? What about the editing? What if the photographer or someone in the chain changes the model’s eye color or skin color or hair or waistline? Does the model get any say in the edited versions?
- Can the pictures be used in any ad? What if it’s an ad for adult diapers or for a cult?
- Does the model get any money? What if the photographer tells the model he just wants to use the pictures in his portfolio, but later decides he’s going to sell them as stock photos? What if it is a TFP shoot? Can the photographer still sell the pictures? Generally, in that situation, it only matters what the model release says, not what was promised in messages or in person.
- Does the model or photographer need to be credited wherever the pictures are used? What if the model wants to remain anonymous and the photographer wants to use the model’s name?
- Does the model release ever expire? What if you take sexy bikini photos when you are 19, and then, the photographer decides to use them in a book much later in life where you wouldn’t want those pictures out there?
Do You Need a Signed Model Release?
This is even more complicated. Obviously, if you are planning on using the pictures for a commercial project, you will save a lot of heartache by getting one signed, even if you just want to preserve your right to maybe use the pictures in the future. Always err on the side of caution and just get one signed. But what about at a less formal TFP amateur model and photographer shoot? Do you really need a model release? If you are using the pictures in your portfolio on Instagram and your bio says “DM for rates,” then is the picture part of an ad for your services? Do you want to be sued and find out the hard way what the law is in your area?
If you are a model and a photographer is using a picture of you and you don’t like it and there is no model release, there are not a lot of options to have the photo removed without litigation. If you ask the photographer to take the picture down and he or she refuses, usually, your next step would be to get a lawyer and begin the long and expensive journey of justice. Very few sites give you an option to report an image because it violates your right to privacy.
When you decide to sue, it’s rarely just an issue of whether there was a signed model release or not, but rather, it falls on the model to prove that he or she did not consent to the use of the pictures. So, if you don’t like the pictures being used and never signed a release, but you have a DM from the photographer saying, “Hey, is it cool if I use some of these pictures in an ad I’m going to run?” and you agree, then how are you going to prove that you did not consent? So, sometimes, you don’t need a release if the consent is clear from the communication string.
The advantage of a signed model release is that you don’t have to hunt through your DMs looking for language that might be interpreted as consent of use. Having a signed model release might also help someone understand why a lawsuit would be fruitless and avoid you being dragged down into litigation.
If you have any questions about model releases, let me know in the comments and I’ll try to get to them.
Note: this article does not constitute legal advice. Speak to a lawyer for any legal matters.