When starting to upload your images for licensing, be it on Shutterstock, EyeEm or Adobe Stock, lots of people will soon get feedback that they are required to upload model releases for certain images. This seems to be a widely misunderstood topic, so in this blog post you’ll find all you need to know about those releases.
What are model releases and why do you need them?
In the law systems of the Western hemisphere, there is a certain amount of rights that every person is being granted automatically. One set of rights is the right of “privacy”, of not being disturbed in your private sphere. And one of the rights included is the “right of publicity” which allows control over how someones likeness is being used.
As all rights, these are “relative” rights. Your right can end where someone else’s right might be affected and the other person’s rights are being considered more valuable in that situation. For example, we also have a right to be informed about what happens in the world, that is the “freedom of the press“. There are also “freedom of speech” or “freedom of the arts” that allow for exceptions at times. Also some countries imply that you have no special right of privacy while you are in public space, while in other countries your privacy even holds up in public space as long as you don’t actively take part in public, news worthy events like a protest rally.
Often, fresh contributors to stock agencies are confused between those rights and the factual use of stock images for commercial purposes. So while you may have a right to take a picture of someone at certain times, maybe even the right to publish that image, that does not necessarily include a company to use that same images for advertising their products. When offering images for licensing in today’s market, most of the time a royalty free license is being granted that includes commercial uses.
Some agencies offer separate collections of images that are marked as “for editorial use only” which excludes commercial uses and only allows for reportage or documentary uses. But even for these collections, not all images of people are suitable. Only images of people shown in “newsworthy” events might be accepted while others are rejected.
To illustrate, how complex and different those issues are, have a look at the list published at Wikimedia showing the different laws regarding the right of publicity in several countries, and how often even that says “with exceptions” or “depending on circumstances”.
For which images do you require model releases?
The right of publicity covers someones personal features; in the context of images it is often referred to as someone’s “likeness”. Now agencies don’t want to demotivate you from uploading images, so they often make it sounds easy to circumvent those rules. Certainly not rarely you will find your images getting rejected or being asked for a model release for an image that you assumed would be one of those exceptions.
Well, here is the thing: Images without model releases usually can only be accepted if someone is not “recognizable” in an image. Now that is a word with a rather clear meaning, right? Umm, let’s have a look. Do you think the couple sitting at the beach watching the sunrise could be recognizable under any circumstances?
Most certainly not from the look of that image. The “problem” here is that images often contain a lot more information than what we see on the surface. I took the JPG file of this image into Photoshop, cropped it to the couple and brightened it up – a lot. Don’t look at the ugly colors or the noise that resulted, no reasonable person would do that to a photo.
But check out how much image information is still contained in what you have just seen as a “clearly not recognizable silhouette”:
Now – besides the Nike logo and the juice carton – there would be a much better chance of the people to recognize themselves. Or each other. There is another hint: While an image with five random strangers will make their options to recognize themselves or being recognized rather weak, a group of five friends is a whole different story because they are more likely to be reasonably sure to recognize the combination of elements. So besides the lack of a clear “this is a recognizable person and that one isn’t”, the context often also comes into consideration.
Finally, the agencies always consider the “probability of a legal risk” against the “probability to make significant revenue” for any image. An image that is likely to sell many times for thousands of dollars might be acceptable within the same grey area while another image that does not depict a relevant concept and is unlikely to sell would easily be rejected for the tinies legal risk.
So don’t be surprised if agencies send back your images with requests for model releases on images that you would have expected to be totally worry-free.
Who needs to fill out model releases and what data is required?
It might sound odd to those who have been in the market longer but there seems to be a lot of confusion about who should fill out the model release forms. Let’s summarize the first part of this blog post: A person has the right of publicity for their likeness. So whenever someone takes a picture of you, it is up to you to decide what that person can do with that image. You don’t own that image but you can keep them from publishing it (legally). So a model release effectively is the transfer of rights from the model to the photographer – and by proxy to the customers the image is being licensed to.
I hope it becomes clear that the model release mainly has to be filled out by the model. Now you didn’t shoot Naomi Campbell, Gisele Bündchen or Heidi Klum? Just regular people and not “models”? Well, legally it doesn’t make a difference. After all, most of you using a camera are being called a “photographer” despite not making it for a living, right? A model in this context is any person that is visible (or better: recognizable) in an image.
Some agencies will also ask you to provide a witness to the model release. Just note that neither you (the photographer) nor the model can be a witness to a contract that you two parties are agreeing upon. You will need a third person to confirm the authenticity of the contract. The good news: As a model releases mostly is a one-way right transfer, it is only the model’s signature that needs to be witnessed. A witness does not have to be present when the images are being taken. Also, the witness does not have to present when the photographer signs the model release. They only need to confirm that the model has signed the release. So this can be done before or after a shoot, even weeks later. And you just have to make sure the model has a witness, for example a friend, but don’t even have to be present while those two are signing the release.
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But what if…
There are some common issues where a model release is not as easy and straight forward as I hope I have made it sound in the first parts. So here is a few “what if’s” and their solutions:
…the person in the image is a minor?
Minors can not sign legally binding contracts. So you will need to have at least one parent (or legal guardian) sign the model release in their name. Still make sure that the name and birth date is that of the person visible (the minor), there should be an additional field to fill in the parent’s name and signature on those releases.
In some countries, one parent alone might not have the full right to sign over personality rights but it requires both parents. International (mostly American) model releases usually do not provide that option. So make yourself informed about the legal situation in your own country and make sure you cover that if required. In my opinion, an elegant way is to have the second parent sign the model release as the witness. It might not be legally perfect but as a witness, at least the second parent can not easily claim “I didn’t know anything about this”.
You’re lucky if it’s your own child: You can fill in the model and parent information yourself and sign the release in the name of your child then. Again, I would advise to use your spouse (or the other parent of your child) to serve as a witness then.
…the person in the image is deceased?
The legal situation might get even more complex when a person is deceased since in some legislations the personality rights also end with death. In other regions, it might last on for a longer period after deaths. In most cases, agencies will still ask you to provide a model release to be on the safe side.
As a rule, the “next of kin” is required to sign the model release for a deceased person. This can be a spouse or a child. Let’s say that the deceased person had some real estate and receives rent payments. Whoever now gets these rent payments probably also is the person who needs to sign a model release. It might get complicated when multiple parties are involved. But frankly, this situation is a rare exception and you might need to consult local legal advisors anyways.
…I don’t know the person I shot on the street?
Then your images are not suitable for stock and you shouldn’t try to license them, especially not for commercial purposes. While street photography is a widely recognized genre of photography and an art form, it does not go well with stock photography. Just go on doing your thing but keep those images in your portfolio as “art” and away from royalty free licensing platforms.
For stock, you are better advised to work with people you know, be it family, friends or strangers that you hire for your shoots. That usually also works out better financially because when doing a planned shoot, you are more likely to get more and better results for licensable content than the occasional random picture shot on the street.
And what are property release?
As we have now extensively covered the model release issues, I just need to mention the “property release” question quickly – I will probably cover this topic in a new blog post eventually but for now: A property release is similar to a model release in such that there also can be rights connected to objects someone (or some company) own. The property release signs over the right to use someone else’s property to shoot images for licensing.
In some cases, you can reasonably provide property releases: For example, if you are making a drawing on a piece of paper, you hold the copyright to that drawing. Taking a picture of it and making that available for sale requires your granting of the distribution rights. If you took the photo of your own drawing, you are obviously able to provide a property release to yourself (how else could an agency know that it actually is YOUR drawing). If your spouse made the drawing, let them sign a property release to you.
Also, whenever you are not in public space, you might be asked to provide a property release for the location. If it’s your house or apartment, you are lucky again as you can sign the PR to yourself. However, if you have shot images in a hotel room, in a museum or on a concert, you would need the owner/manager of that place to sign a property release. And that is often rather difficult up to impossible as you would have to ask them to sign away their rights not even knowing what the images will be used for.
Even more towards the impossible is if you get asked to provide a property release to a Ferrari car visible in your image. Because in the case, with “property” we are not talking about the car itself whose owner you even might be able to track down. The “property” affected are the design and brand rights of the company that developed and built the car. While a Ferrari might be an exception, this is also true for many industrial products, and among those the most common objects probably are clothes, sun glasses, shoes and the modern technology. You will probably never get Nike to sign away the rights to use their swoosh logo for unknown purposes, neither will you get Apple to sign a PR for their iPhones of which even the home button alone is protected as an industrial design.
So if ever asked to provide a PR for that type of images, just keep it from the markets because you will not be able to do so. In those cases, learning to retouch your images for stock is the best approach. But that is another story we save for yet another day. 🙂