Let’s start with some advice: Any graphic materials that promotes something; whether products, a businesses, or charitable causes, and the graphics contain images of recognizable people, — always have those people sign a model release. Of course, there are non-commercial uses that may also require a model release, (see When To Use A Model Release) but commercial uses almost always require a release. One might think that having models sign releases before using their image would be obvious, but far too often usage agreements are just handshakes, and that is not good. For businesses, in particular, releases should be standard procedure for several reasons.
Why is a Model Release Important for Business?
The first has to do with the nature of the activity and the legal reasoning behind filing a lawsuit, also known as a cause of action. The most common causes of action for these types of cases are:
- Unlawful Use of a Person’s Likeness
- Violating a Person’s Right of Publicity
While the details may vary slightly from state to state, in general, both causes of actions require the person suing to prove three elements in order to win. First, the offending image must include their likeness, whether it’s a photo of them or some representation that would be recognizable. Second, the use of their likeness must be for a commercial purpose, or other exploitative purpose. That doesn’t mean it has to be a monetary purpose. Even using an image for a Public Service Announcement (PSA) is considered a commercial use. Finally, a person must not have consented to the use.
So here is the point: any company that creates images are by their nature, images for commercial use and so any recognizable person in the images will have a a cause of action for a lawsuit. It doesn’t matter whether the model is hired by a photographer instead of a company or how the image may have been used in the past. Once a person’s likeness is used for a commercial purpose, they may have a cause of action.
The second reason has to do with economics. Lawsuits are costly endeavors so before initiating a lawsuit, the plaintiff and his or her lawyers will calculate the odds of winning against the legal costs and potential payout, along with whether or not the defendant will be able to pay. If the defendant has no money, then there is little point in suing. Because companies usually have higher equity than individuals, they can afford to pay. And if the payout is minimal relative to the company’s earning, people hope that the legal costs will be minimal because the company is likely to offer a quick settlement to get rid of the case rather than draw it out. On the other hand, if a model finds his or her image being used on a personal blog, the incentive for a lawsuit just isn’t there. A cease and desist letter will be sent, and most likely the image will be removed and the case will end there. If a company uses that same image on product packaging, expect a lawsuit.
However, none of the above scenarios can happen if there is a model release because consent is a total defense to both causes of action. Be careful that a model release is expansive enough. You can’t have a release to use a model’s photos for a fashion magazine and later use that photo for another client’s billboard advertising, unless the release covers that wide of a use.
What Should Be Included in a Model Release?
The release is merely a model providing permission for the hiring party to use his or her likeness for a defined period of time and for a specified purpose in return for something of value, such as money, publicity, or copies of the images. The model release can say that the images can be used for anything and forever, but a model may not want to sign a release that broad. In that case, negotiate the terms and spell them out in the release. But consider possible future uses. For example, photographing a print ad for Gucci may later become a billboard or web ad, so the release can state that the photos may be for print or digital uses but only for Gucci and limited to three years.
At the bottom of this post, I have provided a free model release form. It is very broad so change it based on your particular needs. There is never a one size fits all in law, so if you have an attorney that can customize one, you will be better protected. Parts of this release come from one provided by the American Society of Media Photographers (ASMP), a non-profit association promoting photographers’ rights, education publications and helps connect purchasers with professional photographers. They have many excellent free resources that you may want to check out.
For those of you who are more tech savvy, there are several mobile apps that will create releases. One that I find useful is Release Me. Users can tailor the terms of the releases, have models digitally sign them and then the program stores the releases for easy access. For more details, watch the video below.
Or you can stick with a standard form, signed by hand, on paper.
or download the Model Release in Word format.
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As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.