Model Release Forms: Why Photographers Need Them

A model release form is a legal agreement between the photographer (and/or any entity assigned rights to the images by the photographer) and the person being photographed that details the use of the images and rights of the parties. When you commercially use images of an individual you photographed without a signed model release, you risk being sued for claims such as invasion of privacy and defamation. Model release forms apply to both professional and amateur photographers, so you should learn about when to use these forms and what type of form to use.

When You Need a Model Release Form

You should use a model release form when the person being photographed would be identifiable from the photos and the use of the photos is for commercial or advertising purposes.

Right of privacy issues arise when photographing others. Right of privacy involves the right of an individual to be left alone. Images used for compelling societal interests, such as news reporting and education, and images that are part of the public record (including photos taken in public places) are exempt from claims of right of privacy. However, images used for trade and advertising are not exempt. “It’s not the picture, but how it is used that determines the need for a [model] release.” Generally, when photos are used for commercial purposes (i.e. intended to bring a profit), model releases should be obtained from the people being photographed.Photos used for educational or editorial purposes do not require the same level of protection from right of privacy lawsuits, but could still benefit from model release forms if additional protection for the parties and clarification of other rights, such as future licensing of the images, is necessary.

Defamation issues also arise when using photographs of others. In regards to photography, defamation involves false portrayal of the person being photographed in a way that damages his/her reputation. Without a model release form that includes the subject’s consent for photographs to be used in a particular manner, the use of photos that falsely attribute an activity or situation to the subject being photographed could be grounds for a defamation lawsuit.

If you do not plan on publishing the photographs, and have only taken the photos for your own enjoyment or to develop your photography skills, then a model release form would not be needed. But if there is any chance that the photos would be used for commercial purposes in the future, then you should protect yourself by using model release forms.

Types of Model Release Forms

In a model release form, the subject agrees to allow the photographer to use specified photos for specified purposes detailed in the agreement. Examples of terms in a model release agreement include whether the images may be manipulated, and in what context the images may appear.

American Society of Media Photographers offers several templates that you can download and modify for your own use. These include:

• General model release for adults – To be used when the model is age 18 or older.
• General model release for children – To be used when the model is under age 18 and is to be signed by the model’s parent or guardian.
• Simplified adult release – A shorter version of the general model release, this form excludes some protections for the photographer and person being photographed.
• Pocket model release – A short form useful for spontaneous encounters with members of the public.
• Photographer’s portfolio release – A restricted release to use images for a photographer’s portfolio, with no other commercial uses.
• Property release – Different from a model release, this form is to obtain a property owner’s consent for photos of places, pets, automobiles, works of art, etc.

A Recent Lawsuit Involving Unauthorized Use of An Image

In March 2012, model/actress Alicyn Packard sued Moet Hennessy USA for unauthorized use of her image for advertising, misappropriation of likeness, and negligent infliction of emotional distress in using her image in a controversial and offensive ad published on Belvedere Vodka’s Facebook and Twitter pages. The ad shows Packard trying to get away from a man with the caption, “Unlike Some People, Belvedere Always Goes Down Smoothly.” Packard claims that the image was a screenshot from a video made by her production company, Strictly Viral Productions,unrelated to Belvedere Vodka’s ad campaign and that she never gave Belvedere Vodka or its parent company Moet Hennessy USA permission to use her picture. The lawsuit notes that Packard has “now been unwillingly made the face of the Belvedere advertising campaign that jokes about rape, and has been put front and center in the worldwide controversy” that stemmed from the offensive advertisement and suffered “injuries to her reputation and her ability to market herself in the entertainment industry, and…tremendous anxiety and distress.”

Belvedere Vodka / Moet Hennessy USA never obtained a model release form from Packard. One of causes of action in Packard’s lawsuit is under a California law on right to publicity that prohibits the use of a person’s image in advertising without that person’s prior consent. This lawsuit is still pending as of the date of this blog post, but this lawsuit is a very serious reminder about the importance of getting permission from people whose images you use for commercial purposes, or do not use those images at all.

What You Can Do To Avoid Litigation

Getting proper permission to use photos of individuals is crucial, and ignorance of model release forms and the law does not excuse one from the legal repercussions. When you take a photo of an individual, if there is a possibility that your work may be used in future for commercial purposes, be sure get a model release as a safeguard against lawsuits. Make your intentions for the photos clear and understandable in the model release form, and make sure all parties understand what they agreeing to. If you are unsure about how to draft a model release form or if you are unclear about how to draft specific terms, ask an attorney to help you.

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