Business

Why Businesses Should Always Have a Model Release

Model Release

Let’s start with some advice: Any graphic materials that promotes something; whether products, a businesses, or charitable causes, and the graphics contain images of recognizable people, — always have those people sign a model release. Of course, there are non-commercial uses that may also require a model release, (see When To Use A Model Release) but commercial uses almost always require a release. One might think that having models sign releases before using their image would be obvious, but far too often usage agreements are just handshakes, and that is not good. For businesses, in particular, releases should be standard procedure for several reasons.

Why is a Model Release Important for Business?

The first has to do with the nature of the activity and the legal reasoning behind filing a lawsuit, also known as a cause of action. The most common causes of action for these types of cases are:

  1. Unlawful Use of a Person’s Likeness
  2. Violating a Person’s Right of Publicity

While the details may vary slightly from state to state, in general, both causes of actions require the person suing to prove three elements in order to win. First, the offending image must include their likeness, whether it’s a photo of them or some representation that would be recognizable. Second, the use of their likeness must be for a commercial purpose, or other exploitative purpose. That doesn’t mean it has to be a monetary purpose. Even using an image for a Public Service Announcement (PSA) is considered a commercial use. Finally, a person must not have consented to the use.

So here is the point: any company that creates images are by their nature, images for commercial use and so any recognizable person in the images will have a a cause of action for a lawsuit. It doesn’t matter whether the model is hired by a photographer instead of a company or how the image may have been used in the past. Once a person’s likeness is used for a commercial purpose, they may have a cause of action.

Model Release required
By Paul L.R. Dubois

The second reason has to do with economics. Lawsuits are costly endeavors so before initiating a lawsuit, the plaintiff and his or her lawyers will calculate the odds of winning against the legal costs and potential payout, along with whether or not the defendant will be able to pay. If the defendant has no money, then there is little point in suing. Because companies usually have higher equity than individuals, they can afford to pay. And if the payout is minimal relative to the company’s earning, people hope that the legal costs will be minimal because the company is likely to offer a quick settlement to get rid of the case rather than draw it out. On the other hand, if a model finds his or her image being used on a personal blog, the incentive for a lawsuit just isn’t there. A cease and desist letter will be sent, and most likely the image will be removed and the case will end there. If a company uses that same image on product packaging, expect a lawsuit.

However, none of the above scenarios can happen if there is a model release because consent is a total defense to both causes of action. Be careful that a model release is expansive enough. You can’t have a release to use a model’s photos for a fashion magazine and later use that photo for another client’s billboard advertising, unless the release covers that wide of a use.

What Should Be Included in a Model Release?

The release is merely a model providing permission for the hiring party to use his or her likeness for a defined period of time and for a specified purpose in return for something of value, such as money, publicity, or copies of the images. The model release can say that the images can be used for anything and forever, but a model may not want to sign a release that broad. In that case, negotiate the terms and spell them out in the release. But consider possible future uses. For example, photographing a print ad for Gucci may later become a billboard or web ad, so the release can state that the photos may be for print or digital uses but only for Gucci and limited to three years.

At the bottom of this post, I have provided a free model release form. It is very broad so change it based on your particular needs. There is never a one size fits all in law, so if you have an attorney that can customize one, you will be better protected. Parts of this release come from one provided by the American Society of Media Photographers (ASMP), a non-profit association promoting photographers’ rights, education publications and helps connect purchasers with professional photographers. They have many excellent free resources that you may want to check out.

For those of you who are more tech savvy, there are several mobile apps that will create releases. One that I find useful is Release Me. Users can tailor the terms of the releases, have models digitally sign them and then the program stores the releases for easy access. For more details, watch the video below.

Or you can stick with a standard form, signed by hand, on paper.

or download the Model Release in Word format.

If you found this article helpful and think other might find it useful, help us grow our audience by sharing it on your social media. The promotion would be greatly appreciated.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

1 Comment

Click here to post a comment

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

Orangenius

We built Orangenius to help creators succeed. Our comprehensive platform takes the guesswork out of the business of art, so you can focus on creating. Click to see how Orangenius is revolutionizing the creative economy.

JOIN FOR FREE

The Latest From Artrepreneur

  • How to Earn Your Living as a Travel Photographer

    The prospect of traveling the world while getting paid to work may seem farfetched, but these two photographers have the ticket to landing freelance creative work across the globe. Here, Andy Donohoe and Michaela Trimble share their advice for […]

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • How One Artist Uses Instagram to Land Consistent Illustration Gigs

    Illustrator Maria Luque's secret to landing a steady stream of illustration gigs? Just be consistent and post regularly on Instagram. The post How One Artist Uses Instagram to Land Consistent Illustration Gigs appeared first on Artrepreneur. […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]