orangenius
Copyright Industry

Model Citizens: Protecting Images with a Model Release

Getting Model Release

Though the modeling industry is widely known as a grueling, cutthroat business with impossible standards of beauty and few chances for success, those models that do make the grade enjoy extremely lucrative careers. It’s no secret that Giselle banks more bucks than her football-tossing husband, despite Brady’s contract and endorsement deals. To the general public, it seems like very little work for quite a lot of pay, and in the case of successful models that can often be true. But models are also widely susceptible to financial losses, particularly those that don’t stay abreast of their rights when dealing with photographers, labels, and agencies.

Consider the following example: a model signs a contract to participate in a fashion campaign. Her contract involves not only the fashion company she’s working for but a separate agreement with the photographer she’s working with, who asked her to sign a model release. The contract stated that the images produced for the fashion campaign would be used for approximately one year, but the model recently visited one of the company’s stores and realized that her photo is still being used even two years later. Since her livelihood is based on the use of her photos in fashion campaigns and magazines, the model is understandably upset. Shouldn’t she be paid for the continued use of her image? Wouldn’t she have been asked to authorize the use of her photo if they intended to use it for longer than originally agreed upon? Does she have any recourse in recovering profits from the use of her image?

The answers to these questions hinges on the agreement the model made with her photographer, and the agreement the photographer made with the fashion company. It’s quite a complicated issue that we’ve touched on before, so this time we’ll be exploring the answer in a two-part blog post.

The need for a model release and its requirements can be useful guidance for any publishers and producers of media in all its forms – advertisements, magazines, newspapers, films, television programs, and websites. Anyone who deals in the likenesses of others should be informed of the laws behind model releases.

The Reasons Behind the Model Release

Generally speaking, a photographer owns the copyright in a photo the moment he releases the shutter. According to U.S. copyright law, this gives the photographer certain exclusive rights to the photo: he can reproduce the photo at his will, he can license the use of the photo, and he can benefit from the sale of the photo, among other rights. But the photographer’s rights become a little more complex when the photo involves the image and likeness of another person – at that point, the rights of the person being photographed are triggered, all of which turn on an expectation to the right of privacy.

A photographer cannot simply take a photo of a model and use that image to his benefit – he must first receive permission and consent from the person being photographed before he gains any kind of rights in the photo. This was illustrated in a landmark case against Hustler Magazine in the 1980s, which stated that “Any person who knowingly uses another’s name, photograph, or likeness … without such person’s prior consent, or in the case of a minor, the consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.” The need for consent, therefore, draws on the person’s knowledge of how a photo will be used, which turns on a person’s fundamental right to an expectation of privacy. And should a model’s expectation of privacy be violated, the photographer responsible has committed a tort, and is therefore exposed to a lawsuit and potentially liable for damages.

The four distinct factors related to the right to privacy are:

  • Intrusion upon Seclusion or Solitude or into Private Affairs

  • Publication of Private Facts

  • False Light

  • Commercial Appropriation / Misappropriation of Name and Likeness

With respect to an agreement between a model and a photographer, the two tenets most concerning are false light and commercial appropriation and misappropriation. But in our particular example, we need only explore the commercial misappropriation tenet to understand why our photographer was wise to insist on a model release. Model Release

The Restatement of Torts defines commercial appropriation/misappropriation of name or likeness as “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.” This doesn’t necessarily mean that a photographer can be sued for merely selling a photo; often times, the “commercial” use of a photograph hinges on whether the photograph was used for advertising purposes, as it was in our example here. Using someone’s photo in an advertisement suggests that the subject is endorsing a product or service – and unless consent was obtained, the subject has thus been commercially exploited. If a photographer intends to sell a model’s photo for advertising purposes, it’s important to obtain a model release beforehand.

What Should Your Model Release Cover?

When drafting a model release, one should consider three important factors: the purpose of the use, the nature of the use, and the duration of the use.

When dealing with photographers, models need to take care in negotiating the points of the contract if they want to preserve certain rights. A photographer will often expect unlimited use of the photograph in all capacities, whether commercial or editorial, and a model may not want to hand over such sweeping rights that could result in a diminished earning capacity.

Purpose of a model release

What will the pictures be used for? When signing a model release, a model needs to take care that the purpose for use is very specific. Will the photographer use these images in a gallery show, for potential sale to an interested buyer? Are the photos in question going to be used for a specific advertisement or fashion campaign, or does the photographer intend to use the photo for several campaigns?

Whatever the intended use, the photographer needs to take care that he reserves his rights to use the photo as he wishes. Likewise, the model can further protect herself by insisting on a provision that requires the photographer to obtain her consent before using the image in any way not previously delineated in their agreement.

Nature of Use

The nature of the use of the image turns on the means with which the photo will be distributed. If a release provides for unlimited use in all media, a photographer should be safe publishing images regardless of the delivery method. However, the release should not be silent on how the images will be used, but rather specific: if a photographer intends to later publish the photo in his online portfolio, use it in a stock photo catalog, or print it as an advertisement of his services, he should say so.

In today’s digital age, many photos are also manipulated. Programs like Photoshop sometimes significantly alter the image of a model and in some instances, depict the model in a false light. Many models, especially those who have gathered a significant public following, have openly opposed the doctoring of their images to fit certain standards of beauty. If a model opposes digital manipulation of images, the model release should specifically address that. A model who validly consents to unlimited alterations may be extremely offended at the product of the manipulation.

Duration of Use

Finally, photographers may want to consider the duration of use as another point of negotiation in drafting model releases, and this consideration is even more important for models. The photographer will obviously prefer use of the images for an unlimited duration, meaning he will be able to sell, publish, or advertise with a model’s photo until the end of time. And most standard releases will grant these unending rights unless a model takes care to stipulate the duration of the use. A release could provide that the use of images will not continue past a certain date, limiting the use of the image to a specific term.

Model release and work-for-hire agreements

It’s clear that it behooves both model and photographer to specifically state the purpose, nature, and duration of the use of an image. But how is their agreement affected when the model and photographer were hired specifically by a company to produce a work-for-hire? We’ll continue our discussion in Part 2 next week.

We would like to hear about your experiences in using, or not using, model releases.  Just add them in the comments section below.  And if you have any questions, just use our contact form.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

4 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • Thank you for this great article! There are too many photographers who lack scruples; think their work is far better than it will ever be; are predatory; and whose condescending attitudes ruin the joy of modelling. This article is a great primer to give models an opportunity to research how to protect themselves.

  • I an sorry to disagree with most of your analysis. I have been litigating, lecturing and writing on this and other photo related topics for 36 years. I have represented many model agencies including Ford and countless professional models and laypeople. I have served as an expert witness on the topic for other attorneys.

    “The” reason a written, signed model release is required or at the very least, strongly preferred is that any image used for trade or commercial purposes anywhere, in any medium in the state of New York is that sans a signed model release, the use constitutes a misdemeanor under The NY Civil Rights Law Section 50. Section 51 provides a buffet of civil remedies including money damages, punitive damages if the use was “knowing” and the right to an injunction for an aggrieved subject. Liability is relatively easy to prove. The user either does or does not have a signed model release.

    “Trade or commercial’ is generally defined in NY as advertising, promotion, steering or branding on behalf of any person or entity. The statute specifically excludes editorial and fine art uses. California and many other states have substantially similar statutes. Thus the lack of a signed model release permitting the use renders the image useless for any publisher, ad agency, company, sole proprietor etc. who wants the image to appear in/on anything in the State of NY – ever. An unreleased photo opens them up to substantial liability. The aggrieved party need not be a NY resident to bring the action in NY. The California statute allows for recovery of lost profits in some instances. The Lanham Act Section 43(a) also applies to use without consent of a celebrity’s image, portrait or likeness.

    99% of these cases are adjudicated under applicable state laws and specific statutes. The Svenson case is an example of a fine art use and thus both the NY court below and appellate court held/upheld (correctly) that The NY Civil Rights Statutes 50,51 did not apply. Same facts in another state could result in civil and/or criminal liability as (among other things) some of the subjects were partially clad children. Mr. Svenson wisely pulled those images back well before the courts’ decisions.

    No ad agency or reputable company, website, publisher etc. will employ an unreleased image for anything but an editorial or fine art use as a result of the NY, CA and other similar state statutes. The common law in some states applies to these cases in a similar manner. Reputable model agencies are acutely aware of the law and make sure that a release is signed so that the image is usable for the purposes intended (only) and that everyone gets paid.

    Go to our website thecopyrightzone.com, search “model releases” or “Svenson”. We have about 20+ articles available on that blog that speak to the plethora of issues regarding the need for model releases. Our most recent book which covers this topic extensively is “The Copyright Zone” (Focal Press).

    The copyright(s) and/or license granted by the photographer or illustrator are separate and apart from any rights granted by the subject to the client and/or ultimate user. The rights may or may not be identical. Frequently one party is willing to grant greater or more expansive rights than the other. Whether the image was created by the photographer as a “Work For Hire” is in real life, of little to no concern to (especially) a professional model nor any lay subject whose image, portrait or likeness is embodied in the image.

    • Replying to a private contact: Any person or entity who seeks to advertise, sell, brand or promote a product, service, brand or mark – even a not for profit or charity – is required to obtain a signed model release is the image, portrait or likeness is to be used in the state of New York. Steering eyeballs to a website where products or services can not be purchased on line still qualifies.

      Yes, we have indeed sued charities and not for profits many times. The statutes do not require that the defendant person/entity make money or have any business model of any sort.

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]