By Dan Pollack @ Dan Pollack Law
It is hard to think of a legal issue that causes more confusion and headaches for photographers than model releases. The frustration is justified – there are few “hard and fast” rules and it can raise multiple legal principles that may vary depending on the country. With that in mind, and with the usual caveat of recommending that you speak with a lawyer if you have specific questions, here are some model release FAQs to outline some general guidelines. Note that I am using the term “model” to refer to anyone portrayed in an image.
Does a model have a copyright in an image that I create?
No. You own the copyright in the image unless you have assigned it in writing to someone else. The Copyright Act of Canada was amended in 2012 so that you own the copyright in the image even if it was commissioned by someone else.
What legal rights does a model have in an image?
In Canada, a model’s rights can be based on several legal principles. Rights of publicity, or what is also referred to in legal terms as “misappropriation of personality”, is based on an individual having the exclusive right to market their image, name or likeness for financial gain. A model can also claim that their rights of privacy were violated if there is a reasonable expectation of privacy. A model could also have a claim for defamation if the publication of the photograph creates a false impression and harms their reputation.
Do I need a model release for editorial uses?
In general, no, so long as it is an image of a newsworthy event captured in a location where there’s no reasonable expectation of privacy. But use caution if the event/issue is controversial. For example, you would not need a release if you took a picture of someone speaking at a pro-marijuana rally and the image was used in connection with an article about legalizing marijuana. You would need a release if the image was of someone smoking marijuana in their backyard for the same article because they would have a reasonable expectation of privacy. You would also want to get a release for the same article if the image was of someone attending the rally. They could claim that the use of the image is defamatory – maybe they were just passing by and do not want to be associated with the issue. In similar situations, Canadian courts (particularly in Quebec) have held that people portrayed in an image have a reasonable expectation of privacy even though the image was captured in a public setting.
Do I need a model release if I want to license the image or sell prints of the image?
In general, yes. If you plan on licensing images (either directly or through a stock agency) with models for commercial purposes, you should definitely obtain a release. If you are only selling prints of the image you should also try to get a release. For example, if you want to exhibit and sell prints of your images of street photographs at a gallery and a model raises an issue, you could assert that the images were captured in public and they are not defamatory. However, the person in the image could claim that you are violating their publicity rights. In the United States a release is generally not required if the work has artistic merit (which is construed broadly under the First Amendment), but that exception has not been recognized in Canada. If you do not get a release in this situation you are taking a risk, but the potential exposure to damages is limited if the images do not harm the model’s reputation and the images are not being sold for large sums.
Do I need a model release if I am commissioned by my client to photograph a corporate event and I want to use the pictures on my own website?
Probably not, but you should have a written contract with your client setting out how you and your client are allowed to use the images (e.g., to promote your work, but not to license) and shifting liability to your client if a model raises an issue. Your client should also prominently display/promote the fact that the event will be photographed and that the images will be published. But from a practical standpoint, the potential exposure to damages is limited if you are only using the images on your website to promote your work and not licensing them for commercial use.
What if you can’t recognize the people in the image?
Probably not, but keep the sensitivity of use in mind. For example, if the image is of a busy beach scene from a distance that happens to include overweight people and it is being used to promote traveling to that location, then it’s probably fine if no individual in the image is easily recognizable. But if the same image is being used to promote a treatment for obesity, you would want to have a release if an overweight person could be recognized through something like a distinctive shirt or tattoo – especially if the individual is a minor.
What should my model release include?
You should work with a lawyer to prepare a standard model release, but some basics include your name and contact information, the name of the model and their contact information, and the date and location of the shoot. I also recommend including a picture of the model with the release. It should include a release of all claims relating to your use (and your licensee’s use) of the image and an acknowledgement that the model is not entitled to any additional compensation. If you plan on licensing your images for stock purposes, I recommend including language about the model not being allowed to raise a claim even if the use of the image is objectionable to the model. Also, if the model is a minor, you need to have a parent or legal guardian sign the release.
Hopefully, this addresses some of your questions about model releases. For my next article, I will attempt to tackle the even murkier issue of property releases.
© 2015 Dan Pollack Law
Dan Pollack is a Toronto-based lawyer who primarily focuses on copyright and contract law, helping creators such as photographers, filmmakers, musicians and writers protect and gain value from their work. Dan is admitted to practice in Ontario and California. He can be reached at dan@danpollacklaw.com and through his website at www.danpollacklaw.com.
*This article initially appeared in the Summer 2015 issue of Gallerie Magazine, which is published by the Professional Photographers of Canada (PPOC). You can learn more about the PPOC by visiting their website: www.ppoc.ca.