People Pictures

Discussion in 'Ethics and Philosophy' started by David Hall, Jan 23, 2003.

  1. David Hall

    David Hall Member

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    I am about ready to set up a simple website. I have a lot of pictures of people from over the years...some at work, some taken on the street, etc. Mostly, the faces are identifiable.

    Do I need model releases for pictures that will be on my personal website? It will not be commercial, and I don't intend to make the file sizes big enough to be printable with any quality.

    What's my liability?

    Thanks!

    dgh
     
  2. Aggie

    Aggie Member

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  3. Brian

    Brian Member

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    I'm not a lawyer or pro photog, but I've heard it said many times that the law is that if someone is out in public, it is not illegal to use their images for editorial purposes. I think the model release applies if you're trying to make money off of their images rather than present information (a la journalism, story, newspaper, etc).

    So I would say it depends upon your intended use. I hope I won't get yelled at for using the "p" word, but photo.net has tons of info and opinions on this topic.
     
  4. Les McLean

    Les McLean Subscriber

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    I don't think you need to worry about model release forms for publishing people photographs on a personal website. For what it is worth, I do quite a lot of people photography wherever I go and have published many of them in magazine articles in both the UK and US. To date I've not had any problems and it is also significant that the publishing companies concerned have never raised a query which seems to agree with Brian's comment.
     
  5. David Hall

    David Hall Member

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    I work in radio, and a couple of years ago I photographed a series of listeners of the station I ran...kind of Avedon style but against black and holding signs indicating what shows the listen to, etc. So I asked them to pose, but did not think to offer them releases at the time. THOSE are the pictures I am really wondering about. The random street pix I am not worried about as much.

    Thanks again!

    dgh
     
  6. Ed Sukach

    Ed Sukach Member

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    </span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (David Hall @ Jan 23 2003, 06:44 AM)</td></tr><tr><td id='QUOTE'>I work in radio, and a couple of years ago I photographed a series of listeners of the station I ran...kind of Avedon style but against black and holding signs indicating what shows the listen to, etc.&nbsp; So I asked them to pose, but did not think to offer them releases at the time.&nbsp; THOSE are the pictures I am really wondering about.&nbsp; The random street pix I am not worried about as much.
    </td></tr></table><span class='postcolor'>
    Hmmm ... You asked them to pose and they did. Obviously they were not unaware of what you were doing. If they were carrying signs, they probably wanted ... *meant* to be noticed. Seems to me that it would difficult to accuse you of a "Violation of Privacy."

    I would do a little role reversal: You are them. Would you be offended or feel yourself "damaged" in some way? The answer to that would be a pretty good test of "Good Faith".

    "Pretty good" , but certainly not absolute. Someone could fly off the handle or just view the situation as an opportunity to "turn a few dollars". Certainly, you would have another chance to claim "good faith" and either pay the subject a dollar or two for a Model Release, or remove the offending image from your web site - again, as a token of good faith.

    To tell the truth, I wouldn't worry a whole lot about it.
     
  7. John Luke

    John Luke Member

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    Two issues here.
    #1) Editorial use ( newspaper articles, magazine articles, books) does not require a release if the subject had no expectation of privacy. In other words, if you were on publicly owned property and the subjects were either on publicly owned property , or if they were on private property, they were plainly visible ( not inside, in a bathroom, behind a fence, or something like that). If you were photographing while "on" privately owned property, you are at the whim of the property owner. Example, if you are in Lancaster County on a privately owned farm during an Amish auction, the owners can tell you to put your camera away.

    #2) Any use that enhances a business position, AKA advertising, requires a release from both recognizable people and the property owner if that is also identifiable. Using photos on your website clearly enhances your business position for you are using the photos to attract attention to your skills and get people to use your services.

    There are some caveats here. The case of the Rock and Roll Fame is the most recent. A photographer photographed the structure from a public sidwalk and made posters to sell in those mall art stores. The Rock and Roll Hall of Fame sued, saying they did not sign a release. The courts ruled that the he did not tresspass, and the photo was free speech protected art. However, he could not use the photo as a promotional mailer or on his business website because that is enhancing a business interest, and he had no release.

    I know what you are going to say, selling the posters clearly enhances his business interests, as he is trying to make a profit, but I guess the courts thought that "selling photos" was different than having the photos "sell the photographer"

    There is very little case law on this as most issues are settled out of court. In the absense of releases, you are at risk. You may say- how will they ever find out?, so it needs to be a calculated risk, but a risk none-the-less. Some people say it is easier to beg forgiveness than ask permission, but be prepared to pay some costs to attorneys and to the other party if you can't make diplomacy and a small retroactive fee work for you.

    John Luke
    APA/ASMP
     
  8. John Luke

    John Luke Member

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    One more thing- Every contract needs three things to be valid-
    #1)Consideration- a mutually agreed upon fee such as a print, or $20 bucks or something like that. $1 used to do it, but courts ruled that $1 was insufficient consideration.
    #2)Acceptance- Both parties agree and sign the release.
    #3)Execution- perform as to the terms of the release.

    John Luke
    APA/ASMP
     
  9. Ed Sukach

    Ed Sukach Member

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    </span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (John Luke @ Jan 29 2003, 10:42 AM)</td></tr><tr><td id='QUOTE'>
    $20 bucks or something like that. $1 used to do it, but courts ruled that $1 was insufficient consideration.
    </td></tr></table><span class='postcolor'>
    One overriding consideration: "News" is protected - based on the First Amendment - as "Freedom of Speech".

    The idea of a $20 minimum is new to me - does this apply to ALL contracts - (A model or property release is a contract)?

    Any idea where I could reference the court decision?
     
  10. John Luke

    John Luke Member

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    Ed-

    Not sure what you mean about "News". News falls under editorial use and no release needed.
    The $20 is an arbitrary figure. I give people/property owners a print as consideration.
    A release is a contract. It is an agreement between 2 parties for a specific performance with the 3 requirements mentioned. There are obligations on both parties.
    To research the R & R Hall of Fame issue, there is a trade pub called Photo District News. Check their archives.

    John
     
  11. John Luke

    John Luke Member

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    "does this apply to ALL contracts"

    Ed- If the three conditions mentioned above are not met, there is no legal contract. A contract is a free exchange between parties- Party #1 gives consideration (usually money) and expects Party #2 to do something in exchange for that consideration . Party #2 receives consideration (usually money) and is expected to do something for receiving that consideration.

    John
     
  12. Ed Sukach

    Ed Sukach Member

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    </span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (John Luke @ Jan 29 2003, 02:35 PM)</td></tr><tr><td id='QUOTE'>"does this apply to ALL contracts"

    Ed- If the three conditions mentioned above are not met, there is no legal contract. A contract is a free exchange between parties- Party #1 gives consideration (usually money) and expects Party #2 to do something in exchange for that consideration . Party #2 receives consideration (usually money) and is expected to do something for receiving that consideration.
    </td></tr></table><span class='postcolor'>
    I uderstood that about contracts. My question was about the $20 as a minimum amount to validate the contract. As I understand it, the requirement is that there is a finite BENEFIT (could be prints or the value of services renedered or items of value) to BOTH parties - but I was not aware of any 'set' limit.

    The idea of "good faith" is present here, as it is in all contracts.

    There is the classic case of a model who posed for what she understood to be a mattress advertisement... She was clad in sleepware (nothing salacious) and lying on a bed, complete with bedding... etc. She signed a Model Release - allowing the use of her image for "All legal Purposes", complete with binding payment - and six months later found that she was on the cover of an XXX rated video at the local Adult Video store.

    She sued, alledging Breach of Contract - via a Breach of Good Faith - and won a sizeable judgement. The use of her image for the XXX video was FAR outside any use that she could have been reasonably expected to anticipate.

    As a matter of course, I "dedicate" part of the fee to the model as payment for the Model Release. If I happen to realize a substantial amount of money from the sale of a Fine Art print, or sell one of her images to a large advertising campaign, I'll dedicate a portion of the unexpected revenue to the model as a "good faith" bonus.
     
  13. John Luke

    John Luke Member

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    Professional models from talent agencies have invoices known in gthe industry as a model voucher. Along with their payment info, it has the legalese that acts as the release. A pro typically grants use for a very specific use, such as the person with the mattress ad, and it usualy has a 1 year time limit. Any other use beyond what the release states, and after that year is up requires additional considerstion (in the case of modeling agencies, it's always money), and they spell it out very specifically as part of their rates. If the client or photographer wants to use the image for an unending time or for other purposes without having to go back to the modeling agency each time and pay, they do what is known as a "buyout". They pay up front for unlimited usage for an unending amount of time. This can be anywhere from double to triple to whatever the model thinks they are worth. They have to weigh any potential future residuals for immediate cash up front. Lots of big corpporations insist on buyouts so they can have unfettered use of photos, so do the royalty free stock photo CDs. I agree on the example of the xxx as being something that is not typically foreseeable.

    If you do get a model or any Joe off the street to sign a release giving you rights for any legitmate purpose with no time limit, there is no good faith implied to pay them anthing additional if you sell the image for a big fee later. Once you pay 'em, your done. That's nice of you to consider giving them more later if it sells, but the financial risk was all on you in producing the shot, marketing the shot, and you have been bearing all the expenses for ones that never sell.

    John Luke
    APA/ASMP
     
  14. Ed Sukach

    Ed Sukach Member

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    </span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (John Luke @ Jan 30 2003, 04:48 AM)</td></tr><tr><td id='QUOTE'>
    If you do get a model or any Joe off the street to sign a release giving you rights for any legitmate purpose with no time limit, there is no good faith implied to pay them anthing additional if you sell the image for a big fee later. Once you pay 'em, your done. That's nice of you to consider giving them more later if it sells, but the financial risk was all on you in producing the shot, marketing the shot, and you have been bearing all the expenses for ones that never sell.
    </td></tr></table><span class='postcolor'>
    Even if there is no legal obligation, this is my choice. Chalk it up to a "Celebration of Good Fortune".

    I guess it is also an extension of a management philosophy from a different life ... Models, Assistants, Interns.... do not work FOR me... They work WITH me.
     
  15. John Luke

    John Luke Member

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    Getting back to the topic of what is adequate consideration. The most bombproof releases usually begin with the line " For good and valuable consideraton received.......".
    Courts ruled that the once customary buck was not valuable consideration so the $20 is an arbitrary figure, until someone challenges it in court. I add a line that states "For good and valuable consideraton received, or the promise of a print to be received.......

    No matter how boilerplate your release is, somebody can challenge it. People sue all the time. At a local college I do work for, students sign a photo release as part of their admissions documents giving the college permission to photograph them at events for college publications. The consideration in essense is wrapped into participaring in a college education. Nothing wrong here, it's done all the time. Students who may want to not have their photo taken for religious reasons or whatever, usually have an "opt out" button to check. A black person sued them because the college ran a photo of him at graduation sitting next to his mother. ( Not my photo) His father was cropped out, for whatever reason, didn't fit the layout or maybe the father had his eyes closed, it doesn't really matter. The dad was cropped out. The suit claimed that running a photo of a black student with only one parent signified he was from a one parent household and the photo may have reinforced the stereotype that many black children are born from unmarried women and have no known fathers. The family was awarded $100 Grand in an out of court settlement. I know this because when ever I shoot for this college, a representative from the college has to be present to issue releases on the spot and to discuss any potential ramifications in the future. The students then have the opportunity to not participate in the photo.

    The bottom line, get a release and keep your fingers crossed.

    John Luke
    APA/ASMP
     
  16. djkloss

    djkloss Subscriber

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    Most of what I've seen about releases is for magazine articles, books & advertising. I recently took a trip (my first) to New York, and had a blast. I was using my Nikon F100 set on auto, with a 14mm lens. I was taking pictures of crowds on the street. I'd like to use them in gallery submissions/exhibits - hopefully for sale. They're candid shots and there's no way to get a release for something like that. My question is - do you need one for framed photos for sale in a gallery?

    thanks,
    Dorothy
     
  17. rbarker

    rbarker Member

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    Obviously, opinions vary all over the map, Dorothy, and people sue for the craziest of things. But, my feeling is that if the images were made in public places where the individuals had no expectation of privacy, and aren't demeaning to the individuals, you're probably OK with gallery displays and print sales.

    Note, too, that laws relating to this issue vary considerably between countries, and may vary between states in the U.S., as well.