Essential to the American culture is this underlying protection of an individual’s right to privacy; both in terms of governmental interference in personal affairs, but also freedom from invasion of privacy by other individuals. There is a lot of law on the subject and through all the confusion and conflicting precedents; four fairly clear categories of privacy protection have emerged.
- Appropriation: Individuals have a right to protection against the unauthorized use of their name or likeness for commercial purposes
- Intrusion: Individuals have a right to protection against unwarranted intrusion upon their solitude and private affairs
- False Light: Individuals have a right to protection against publicity that places them in a false light
- Public Disclosure: Individuals have a right to protection against the public disclosure of embarrassing facts about their private lives.
Empirically, these protections mean that one cannot photograph something that a person has a reasonable expectation of keeping private, even when the person is in a public area.
While courts have generally sanctioned the photography of news worthy events that are exposed to public view, they have traditionally considered certain subject matter to be private affairs that warrant protection from intrusion. People in their homes, or private areas of their business are a prime example.
The best way to protect oneself from being sued for invasion of one’s privacy is to obtain his or her consent to be photographed. A person can consent to be photographed by implication or expressly in speech or writing. This is where model releases would come in.
A Model Release Form is a legal document that on the most general level serves as a definitive waiver of any potential right to privacy claims that a model or subject may have.
While express written consent is not legally a necessity – as implied consent is enough. Implied consent may be assumed when subjects know they are being photographed and their reactions would be understood by a reasonable person to indicate consent. But, implied consent may not necessarily be construed as consent to publication, unless the subject has reason to believe that the photographer intends to have the work published.
That is why it is a good idea to get a written release even when permission is not legally required to take a photograph. For example, once while shooting a model, a photographer took “candid photos” of the model putting on her makeup and then later used without her knowledge. Even though the model would have granted consent by implication by allowing the photographer to shoot them in the first place, they may not have granted the photographer explicit rights to use the candid photograph. A simple model release could certainly have helped this confusion and any potential future problems.
At a bare minimum, the release should state that the model has agreed to be photographed and they have granted permission for the photographs to be used for all lawful purposes including commercial use.
The agreement to be photographed is consent to invade that person’s right to privacy. For this 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 consent.
- The release needs to specify the uses for the photographs.
- The release should include a general comment as to the general nature of the photographs taken and the dates of the shoot. (If you do a lot of shooting, this will certainly make your records a lot easier to understand and prevent any confusion in this matter.)
Many states do not require consideration or payment for the release form. Some states do require it. It’s best that if you do mention consideration that your consideration if fair, so that a court will not invalidate your release form.
Consideration is the legal term for payment for property, services, or the surrender of a legal right. Consideration is almost always necessary in a valid contract. It is a bargained for exchange. It could be a benefit to one party and a detriment to the other. A deal without consideration would just be an illusory promise and that is not a valid contract.
When the primary purpose of the release is to protect the photographer and subsequent users of the photographs from claims that privacy rights have been violated – then it really isn’t necessary. All the release needs to do is to document the permission to be photographed for publication.
In the case where the primary purpose of the release is to protect against invasion of privacy claims, having a consideration clause may actually weaken the legal protection. The consent could be considered invalid based upon a lack of actual consideration, or perhaps an inadequate amount of consideration. By mentioning consideration, you are opening a can of worms. So why bother with a consideration clause?
One useful purpose of a consideration clause is to preclude models from revoking their consent in the future. Without a binding contract, parties are free to revoke their consent and thus prevent subsequent publication of the images. Now, don’t panic… revocation can only occur upon notice given by the model to the photographer. Furthermore, if you relied upon the initial promise to your detriment – the court may find in your favor regardless.
Consideration clauses are also ways of bargaining for other things – other than just a waiver to the right of privacy; including: a waiver of inspection of the photos, indemnification clauses, ability to use the images in many different commercial uses as intended now, or perhaps in a later project, etc. Taken even further, a photographer could bargain for the model to write you a recommendation if the shoot goes well. Or whatever your personal choices may be.
In my personal releases, I include language granting the model a license (a right) to use the images taken for non-commercial, self-promotional purposes. Many a misconception exists amongst models in regards to rights and responsibilities of the parties. Is the photographer required to deliver prints? Can the model sell the photos to another website? By having a consideration clause that evidences a bargained for exchange of rights and responsibilities – you have not only protected yourself but outlined the obligations of the parties in writing – so there will be no confusion later.
A few final thoughts on model releases:
- In a studio setting, it is important to get the model releases signed first before the shoot. This way you don’t waste your time taking images that will be unable to be used. You also will be giving the model an opportunity to express any questions or concerns they may have about the shoot prior to starting.
- You should maintain multiple copies of the records in various locations, in case of destruction of the originals. I also suggest that photographers include a photo of the model holding their identification or a photo of them signing the paperwork. In this day and age, unless we are talking about 18 USC 2257 (the statutory requirement that any nudes of a sexual nature consist of subjects over the age of 18) digital copies of all of these documents is acceptable.
- Most importantly – don’t get lazy. Model releases and maintaining records can be a hassle. It can take away from valuable shoot time to sign the paperwork first. But, in the long run, the potential expensive and time-consuming hazards that can be avoided by having the paperwork signed outweigh the immediate hassle of signing the paperwork and filing it away.
Matthew B. Harrison is an entertainment and media attorney with The Harrison Legal Group. When not lawyering, Matthew enjoys listening to music on vinyl and taking photos on film. Connect with him on his website.