So you got a great shot of a football fan dropping his pants for the photographers. Does that mean you can sell it to Sports Illustrated? Find out the answer to this and all your other questions about permission and model releases with this excerpt from Bert Krages' Legal Handbook for Photographers.
This excerpt from Legal Handbook for Photographers is provided courtesy of Amherst Media. To purchase the book and learn more about the publisher, visit the Amherst Media website.
The best way to protect oneself from being sued for invading someone’s privacy is to obtain his or her permission to be photographed. A person can consent to be photographed either implicitly by their actions under the circumstances or they can expressly give their permission in speech or writing. Written consent provides the best legal protection because it provides a permanent record that permission was given. Although implied and oral consent are theoretically as effective as written consent, it can be difficult to prove them in court, which makes them less desirable. Photographers who choose to rely on implied or oral consent run the very real risk of having the subject either forget about giving permission or outright lying about having done so.
Sometimes it is a good idea to get a release even when permission is not legally required to take a photograph. One reason is that most advertisers and some publishers require releases before they will purchase the rights to use photographs of identifiable persons. Without releases, it can be difficult to market some kinds of photographs. Even when there is no intent to profit from an image, releases may be warranted when the circumstances give the appearance that the subject’s privacy rights may have been violated. For example, taking a photograph that shows an exterior window that frames a couple caressing inside a bedroom could give the impression that the photographer has violated laws against voyeurism. Absent a written release, the photographer could face a difficult situation if he is accused of voyeurism and cannot locate the models to corroborate that permission had been given.
Implied consent may be assumed when subjects know that they are being photographed and their reactions would be understood by a reasonable person to indicate consent. For example, when people apparently welcome being photographed or do not appear to object, one may assume they have consented to be photographed. However, implied consent to be photographed will not necessarily be construed as consent to publication unless the subject has reason to believe that the photographer intends to have the work published. In one case, a man sued the publisher of Sports Illustrated after it took and published a photograph of him standing up at a football game with his pants unzippered. The court observed that it had some misgivings about the editorial judgment in singling out a person in an embarrassing situation, but noted also that the photograph was taken in a public place, was newsworthy, and the fan had given implied consent because he was aware that the photographer was working for Sports Illustrated and was part of a group of fans that had asked to be photographed.
For consent to be effective, it must be granted by someone who is capable of understanding the nature and consequences associated with the photography and who has the authority to give the consent. When photographing mentally competent adults, it is usually necessary to get permission from the person being photographed. For example, people cannot consent on behalf of their spouses to allow them to be photographed surreptitiously in private activities. The possible exception is when the subject has clearly given someone else the authority to consent on his or her behalf such as might be the case for a publicist working for a celebrity. When photographing minors and persons suffering from significant mental disabilities, you need to get permission from an appropriate party such as a parent or guardian.
Consent obtained through misrepresentation is invalid if the subject misunderstands the nature of what is being photographed or how the photographs may be used. For example, someone who agrees to model without clothes after being told the images will be used solely to illustrate a medical text would likely have a cause of action should the photographs be mass-marketed as pin-up posters. However, consent that is based on the photographer representing a subjective opinion will be effective even if the subject’s opinion ultimately differs. For example, models who are assured that they will be portrayed attractively or artistically cannot argue that their consent is invalid merely because the photographs fail to meet their expectations.
The standard document that most photographers use to record written consent is the model release. At a bare minimum, the release should state that model has agreed to be photographed and has given permission for the photographs to be published. Many releases, including most of those available as preprinted forms, address more issues but do not necessarily provide better legal protection to the photographer. As noted above, consent is ineffective if the subject misunderstands the nature of what is being photographed and the intended scope of use. In addition, courts sometimes refuse to enforce provisions they consider unconscionable. Using complex release forms that express simple concepts in obtuse legal terms increases the chance that a court will find that the subject misunderstood the scope of their consent. In such cases, a court may rule the consent is ineffective.
To better understand how releases work, it is helpful to evaluate the most common clauses and their legal effect. All model releases identify the subject who is granting consent and provide for his or her signature (or one from a parent or guardian). Surprisingly, because the scope of consent is a critical legal issue, few preprinted release forms provide spaces for identifying the general subject matter or the dates on which the photographs are taken. Nonetheless, it is a good idea to describe the general nature of the photographs and the period in which they were taken on the release before it is signed. By doing so, photographers can avoid disputes over what the release is intended to cover.
Many model release forms recite that the subject has received consideration. Consideration is the legal term for payment for property, services, or the waiver of a legal right. In my opinion, consideration clauses are usually unnecessary in a release and may even be counterproductive. When the primary purpose of the release is to protect the photographer and subsequent publishers of the photographs from claims that privacy rights have been violated, all the release needs to do is to document that the subject has given permission to be photographed and to have the subsequent images published. There is no need for a release to constitute a contract to be effective.
Because the concept of consideration relates to contract law, releases that contain consideration clauses can create doubt regarding whether the consent is a condition of the contract or is an independent statement. Because consent by itself is sufficient to negate a claim that a model’s privacy rights have been violated, adding a consideration clause to a release can weaken the legal protection because a court could find the consent invalid if for some reason it finds the contract to be unenforceable.
Consideration clauses can be particularly problematic when the photographer does not actually pay the subject. Not only does the failure to pay create an issue regarding whether the release fails without an actual payment, it may open the door to claims that the subject is owed money. Courts traditionally have been hostile to enforcing contracts when the nominal nature of the consideration indicates that it was a mere formality and not the result of a bargained transaction. In addition, most courts will disregard recitals in which the subject acknowledges receiving consideration and allow evidence to be admitted regarding whether payment was actually made. If the release form fails to quantify the consideration, the photographer may face the quandary of having to defend alternative claims that either the consent is invalid or that the model is owed a fee. Furthermore, if the publisher relied on the photographer’s assertion that the image had a proper release, then the publisher could sue the photographer to be indemnified for whatever costs and damages were incurred as a result of having to defend a lawsuit filed by the model.
One useful purpose consideration clauses can serve is to preclude models from revoking their consent in the future. Without a binding contract, parties are normally free to revoke their consent and thus prevent subsequent publication of the images. If irrevocable consent is in fact a condition of the contract, the photographer should ensure this is clearly expressed. The best way to do this is to use separate contract and release forms in which the contract form requires the model to sign the release and states that the consent cannot be revoked. In addition, the consideration should be commensurate with the services rendered. The amount paid does not necessarily have to be great, but it should more than a mere token. Photographers who do not pay their subjects will probably be better off forgoing the use of consideration clauses because the practical aspects of revoking consent reduce the potential for hardship. For one thing, a revocation is not be effective until it has been expressed to the parties protected by the release. In many cases, models will not know how to contact the photographer and thus will be unable to effect a revocation until after the photographs are published. Also, courts typically allow those who rely on another’s consent to act in a reasonable manner to protect their interests. This means that it is unlikely that a court would prevent a publisher from selling books with photographs of a particular model if the consent was revoked after the publication was printed. In fact, a court might rule that a model is barred from revoking consent altogether provided the release clearly communicated the prospect of future publication at the time the photograph was taken.
Many release forms contain recitals that describe the potential ways the photographs might be used, although they are usually written in verbose and legally-bloated text. A release is sufficient if it documents the model’s consent that the photographs may be published for any purpose including advertising and promotions. Although there is some merit to addressing issues such as altering photographs or the use of accompanying text, photographers should be careful not to impair the ability of the subject to comprehend a release form by making it too complex. Also, introducing too much specific language opens the door to a court ruling that the specific nature of the release implies that matters not specifically described are beyond its scope. For example, a court could decide that a release that allows a photograph to be used in any “book, journal, magazine, pamphlet, newspaper, or other printed document” does not extend to fine art prints or publication on the Internet because these uses are not described in the specific text used in the release. Conversely, a court would likely find that fine art prints and Internet use were adequately described in straightforward text such as “published in any form and for any purpose.”
One exception to using general text to describe how photographs may be published may apply when the photographer knows that an image is likely to be used in a sensitive or controversial context. For example, a general release signed by a mother of a teenage girl may be acceptable when a photographer is taking photographs for general stock use but would be less prudent if the photographer is on assignment to illustrate an article about teens infected with sexually transmitted diseases. In such cases, photographers are better off legally if they first explain how the photograph will likely be used and document the model’s consent to that particular use.
Releases are often cluttered with irrelevant provisions that do nothing to alter the legal rights of photographers or subjects. For example, releases sometimes state that the subject warrants having the capacity to sign the release. The problem with such clauses is that people who lack the capacity to consent also lack the capacity to warrant they have the capacity to consent. Clauses that state the subject acknowledges reading the release prior to signing it are similarly illogical because subjects who do not read the release cannot knowingly acknowledge having done so. Although these kinds of clauses probably won’t hurt the photographer, they provide little practical protection and are better omitted for the sake of clarity.
Photographers can also make their releases clearer by omitting provisions that merely document the legal rights the photographer and subject have anyway. For example, permission from a model has no bearing on who owns the copyright and such recitals in releases are unnecessary. Furthermore, consenting to be photographed cannot be construed to transfer the copyright to the subject because such transfers must be expressed in writing. In short, copyright clauses are unnecessary in releases. Photographers should also be careful to avoid releases that contain clauses that are invalid because they are unconscionable. While courts give considerable leeway in allowing the parties to negotiate the extent of a release, they will not enforce provisions that are so one-sided as to shock the conscience. One type of unconscionable provision commonly found in release forms is the indemnity clause. These clauses usually are drafted with terms such as “indemnify,” “hold harmless,” or “save harmless” and purport to require the model to pay or reimburse the photographer for any legal expenses and damages suffered should the photographer be sued because of the photograph. Such terms are clearly overreaching and courts will not enforce them. In fact, they present some degree of risk to photographers, because a court may be sufficiently offended by the overreaching clauses to rule that the entire release is invalid.
Using a Simple Release Form
When reviewing a release to determine whether it records an effective consent, courts will consider the clarity of the text, the sophistication of the subject, and the overall fairness of the agreement if the release purports to be a contract. In such cases, a complex release form may work against the photographer. Because they are easier to understand, simple releases are more ethical and in my opinion better protect the photographer than lengthy and complex releases. Another advantage of simple release forms is that they can be printed on small pieces of paper while still maintaining a legible type size. This allows photographers to carry them in convenient places such as wallets or even attached to photographic equipment.
The following is an example of a simple form:
Some models may wish to limit the scope of their consent. For instance, they may object to using the photographs to advertise products they find objectionable. When this occurs the photographer can avoid having to draft a entirely new release incorporating the model’s restrictions by writing in the limitations at the bottom of the standard release form and having them initialed by the model and the photographer to confirm the revision.
When photographing minors or other persons who lack the legal capacity to consent, the release can be altered to indicate that a parent or guardian is signing on the model’s behalf. Alternatively, a form such as the one below can be used.