Any lawyers on deck? If not, then pay for some advice.
Any lawyers on deck? If not, then pay for some advice.
Generally speaking, a postcard is not considered commercial use. I sell stock photographs through agencies, and postcards are not considered "commercial" as far as can see. (You easily recognize commercial use by the price tag in the Rights Managed licensing model).
The grey area is book covers: do they promote the book? In case of a postcard, the buyer is buying a picture itself. Calendars are also, as far as I know, considered not commercial. Mind you, there are such things as commercial calendars (Playboy comes to mind for some reason), and commercial postcards (such as those promoting hotels, fairs etc.). I'm talking postcards and calendars without logos or promotional writings.
I would not be sure, in both cases, that the person is "incidental". In both pictures there basically is one person and a prominent sign "Guard on duty", and it is implied that the person portrayed is said guard on duty. So I would say that it could be argued that both persons are actually the subject of the picture, and that - stretching the concept a little bit - might be considered to fall within the ritratto ambientato genre, the "portrait of a person in his environment".
If the person was recognizable that in my opinion would require a model release for commercial use. What would make the situation different is if the person is not recognizable but again, if the commercial use is made in an environment (such as an hotel nearby) where the image would clearly recall the person and make a clear and understandable personal reference to him, even in silhouette, that would be another matter.
In short: according to my understanding, you don't need model release for non-commercial use, that's a general rule;
commercial use of these images is a bit of a tricky situation and the need of a model release cannot be totally excluded.
Something that is often overlooked is that the person might feel entitled to compensation if a non-commercial use is made of a picture which damages the reputation of the person.
If one year there is an abnormal number of deaths among Californian beach-goers, and a national scandal erupts about how ineffective are life guards in California, and a Californian newspaper writes an article entitled "Why do we have the worst life guards on earth", and a life guard is depicted like in this case, recognisable by his pairs, parents and friends, and the assumption might be made by some readers that the life guard portrayed is actually one of those who are accused of scarce behaviour on duty, then the person might actually sue because his reputation has been tarnished within his social environment.
All this is of no big interest to the photographer who is not a publisher. The photographer clearly states that he has no model release. The publisher evaluates the picture, the circumstances in which it is published, he gets the profits, and he pays the compensations if any.
Just got back from the beach. Spoke to the Head Lifeguard. He agrees that all but one of the pictures does not need a release because the person is not recognizable. The one pic of the girl guard standing on the ramp of the guard platform (the second pic) is a "maybe" so we'll ask her for a release just for good measure.
I gave a 4x6 to everybody I took pictures of and told them what I was planning. They were all happy to have a picture of themselves and thought it was a great idea.
I left the release at the guard shack and it'll get passed on to the person in the picture at the end of the day's shift. I can pick it up tomorrow.
........so what about "street photography" where the people are almost always recognisable? The law is probably different in the US to the UK but I have no intention of running around getting model indemnity forms signed by all the bystanders on the streets where I shoot.
as previously stated, the big question is your intended use of the street photos. If you are hanging them on your own wall, or hanging them in a gallery and selling prints, not needed. If you are licensing the use of the photos for advertising purposes, then you do need them.
Just to clarify (as you asked about U.K. use). The comments above apply equally in the U.K.
I am given to understand from a UK specialist in copyright and intellectual property law that in the UK a model release can act to restrict the rights of photographers. That in the UK, you don't need a release for even commercial use. You have to pay more attention there to other privacy rights than in North America, so no street photos of people exiting medical clinics (a case was won against a newspaper on that point).
You don't need a model release to use an image in any way at all. Like a contract, you only need it to clarify the situation if something goes wrong. If there are no problems, no one will ever need to see or refer to either.
However, most publishers and agencies will want to see a release to cover themselves.
A model release can limit the possible usage of the picture. For instance the model can state, in the release, that the image cannot be used to promote the tobacco trade, the fur trade, the weapon trade etc.
The model can also state that the picture cannot be used in a defamatory way, but this is often considered implicit, a "defamatory" use would require a specific release.
I don't know if the person meant that. That is something that as far as I know is true in most countries, I don't know what the specific laws in the UK would be, I'm actually quite interested in knowing better the specificities of the UK in this regard.
Not sure if it is good form to revive old threads but I stumbled cross this one the other day, while waiting for some prints to wash. At the time I pretty much agreed with the advice that had been given, basically that if the person in the image is unrecognisable then there is no need for a model release. At about the same time Twitter were using an image on their front page of three guys in India playing cricket with the Taj Mahal in the background. It was a colour twilight shot with the cricketers in shadow, but not total shadow their bodies were probably rendered at about zone 3, and their heads had been burned in to total black, rendering them unrecognisable in terms of a model release. I thought nothing more about it and considered it fairly standard usage of a captured street image. Fast forward two weeks. I wanted to upload a video to You Tube, now part of Google, for my girlfriend I did not have a You Tube account but I did have a Google account which I use to manage both our websites Google presence. I used my Google user name and password to login to You Tube and I logged in but was asked to confirm some additional details that I had not been asked for on any previous use of my Google account. I entered false information as I don't think the requested information was any of Googles business and I had been perfectly capable of running the account for the last three years without Google having that information and it was just part of a great data mining exercise on Googles part. The information I entered was that my year of birth was 2012. Google immediately locked my account as it rated me as being under-age to manage a Google account and demanded that I send my credit card details or post them some government backed ID before they would unlock my account. I cannot now manage my, or my girlfriends, web presence, thankfully I don't use g-mail as my main e-mail account but I am bloody furious with them and will not use their services again. So what has this got to do with the OP? Google, Facebook, Twitter and the rest are now vast global corporations. The image used by Twitter may not have been recognisable to the majority of the global population but it would have probably been recognisable to the people involved in the image, “Remember that day we were playing cricket and the tourist with the expensive camera stood about taking pictures?”. You can picture it now, it is sunset you are in an Indian suburb near the Tag and you see some guys playing cricket great shot you think and take it. You post it to one of the online stock sites with the faces suitably burned in to avoid the need for a model release. If I was one of the guys in the image and that image had been used to promote a vast global entity while I was being denied access to that entity I would be livid. I know you will say Twitter is not Google or Facebook but all of these organisations operate on the same model of data mining their users. How would you feel if you found yourself promoting an organisation you were morally opposed to even if most of the rest of the world didn't know it was you? One further thought, I used to be involved in events tat were sponsored by Microsoft. Mine was a technical role and I am not an Equity member ( the UK actors union). On one event Microsoft had employed a film crew to film the event for promotional usage, this had happened on a couple of occasions and generally didn't involve me. On this particular occasion the director swooped down and announced that someone would hand me a memory stick and I would put it in the computer (a mac) and they would recreate the download. I pointed out that I was not an actor and did not want to be in their promotional video because I did not agree with Microsofts licensing agreement “But It's going to be viral” (something to do with the internet) they said. I repeated my stance and after the ten minuets it took them to get their heads round the concept that someone may not want to promote their products, especially without being paid, it was decided that the sound engineer would play my part.
Now I don't want in any way to stop photographers, professional or amateur, taking photographs of anyone in a public place. But I do think that in this day and age we need to think more carefully than ever what we do with those images. Personally I find it hard to photograph someone without there explicit consent such as in a formal portrait, or hiring a model to get a shot, and even then I wrestle with my interpretation. But that's just me.
One very last thaing http://www.duckduckgo.com/ not google for untracked surfing