Friday, February 24, 2023

Photography: On model releases and subject rights

This post will clarify copyright law, a matter about which many people have only a vague understanding. To begin, I must say that no-one should take what I write as legal advice. Instead, consult a lawyer specialising in this topic as necessary, not least because copyright is different in different territories, even though there are universal conventions that most countries have signed.

This article will outline the rights of the subject (e.g. model) portrayed in a photograph. These are likely fewer than you expect. 

I will take "subject" to mean a recognisable person in the photograph. If you are not recognisable, none of the following applies. 

Be aware that public life is different from private life. One's reasonable expectations of privacy are not enforced when in public. For this reason documentary makers and street photographers do not need to ask permission or obtain a model release of their subjects. This has been proven in court. 

In cases of paparazzi, a legal argument would weigh public good against the subject's right to privacy. Each case is considered in some detail, even going so far as accounting for the model of camera, focal length of lens, etc. If the photo can be shown to be newsworthy, then it is more likely to be accepted. But of course what is "news" is a contested topic in itself. Enter the judge to decide. 

It matters whether the purpose of the photographer was artistic or commercial. A photograph on a book or album cover is generally considered as advertising for a commercial product. No, not art. But the same photograph in an art gallery is displayed for artistic purposes. The fact that the photo might sell for a large amount of money does not change this. The qualities of the image itself are unlikely to significantly influence this determination.

If a photographer's main purpose is commercial, they should obtain a model release, in which the subject does two things: a) allows their likeness to be used, and b) gives up the right to further payment. This contract commonly excludes certain uses of the photo, so that, to give some examples, it cannot be used to support a political candidate, be used in pornography, or be used unlawfully. Again, contracts differ, regional laws differ, etc.

As before, the amount of money involved does not change the law. The model might work free for "exposure" while photographer puts in time to "build their portfolio". This doesn't impact their respective rights, so it's prudent that both parties should nonetheless sign a model release. Consider that if the subject becomes famous in ten years time, photos previously worthless can become valuable, and this might change that person's attitude towards the transaction.

A practical reason why a model release is required for commercial work is that further interested parties (distributors, publishers, stock houses, etc.) will demand one, even if there's no legal need.

This next point is not particular to the subject at hand, but is worth mentioning. Some people have the strange idea that just because a contract is made between two parties, it must be upheld. But this is untrue. For example, contracts can't violate other laws, or we could enter into contracts for murder. The terms of the contract might be unenforceable, rendering it void. And so on.

If your rights are abridged or a contract is not upheld, all you can do is sue and see what the courts decide. This is largely determined by previous precedent within the jurisdiction. 

Finally, it must be asserted that the copyright owner of a photograph is the photographer, not the subject in it. You'll recall the case of nature photographer David Slater and the macaque selfie. Despite initial reports, he won that case. At least in UK law, the fact that Slater had chosen and set up the equipment, additionally making all the photographic decisions, made him the author. Even if the macaque pressed the shutter release. But, to be safe, he should have obtained a model release!

One final word. People might argue ethics: what is right or correct to do with an image. This topic arises when photo-journalists take shots of brutal reality (war, disaster, etc.). And when street photographers take potentially embarrassing shots of people in public. I've read discussions where people argued ethics and then stating that the law must follow their opinions. This has never been so. The law does not always follow what the common person (that is, a non-lawyer) would deem as common sense. 

I trust this article has helpfully distilled some relevant information.

(Updated 1 March 2023 for clarity.)


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