Model releases and copyright seem to be the source of more confusion than almost any other aspects of commercial photography. Though the law in both areas is quite well established (in the U.S.), all sorts of new and insidious ideas are being bandied about on the Internet, which are to the detriment of photographers (as well as morally and legally wrong).
Most of what many people read (and say) about model releases and copyright on the Internet is dubious. I am not a lawyer. So do not consider this legal advice. But I am a photographer and a teacher. As a teacher I get paid to explain things so people who do not know about something understand that better after I explain it. With that in mind, I am going to give a broad strokes explanation of copyright and model release law. Note that I am speaking in generalities. For every rule, someone can find an exception. Folks in the know may argue with the details and especially with how sweeping I may be in what I say, but at the core, what I say is current law (in the U.S.A.)
When any creator fixes their expression/interpretation of an idea, that fixed expression is copyrighted and belongs only to the creator. The creation may be a photo, a piece of music, a sculpture, etc. The ideas themselves cannot be copyrighted. The fixed, tangible expression of those ideas can be copyrighted. In current American law, copyright exists from the moment of creation. Registering work with Library of Congress offers the creator many important additional legal protections. So much so, that I register ALL of my work with Library of Congress, to be able to take advantage of those added protections.
The creator owns that copyright unless the creator of the work goes out of their way to sign away that copyright.
The people/subject/place photographed in these same newly created/copyrighted work have no rights to the work that was created. NONE. It’s a myth that subjects of photographs somehow own a piece of the work that other creators (such as photographers) have made of them. To date, the legal system has been very clear on the falsehood of this premise. A legal case may come along any day and change that, but I doubt it will.
An interesting case is a 2006 New York trial court ruling involving one of the photographs of Philip- Lorca diCorcia. One of diCorcia’s New York random subjects was Ermo Nussenzweig, an Orthodox Jew who objected on religious grounds to diCorcia’s publishing in an artistic exhibition a photograph taken of him without his permission. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art−not commerce−and therefore is protected by the First Amendment. Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig—a head shot showing him sporting a scraggly white beard, a black hat and a black coat was art, even though the photographer sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have “recognized that art can be sold, at least in limited editions, and still retain its artistic character (…) [F]irst [A] mendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes.”
Another sad example of people doing dumb things with their images, images that can have substantial value is the iPhone photograph taken out of an airplane window of the space shuttle Endeavour launch. Tweeted to friends, the image was seen around the world with the photographer getting little, if any payment.
This is just one of many recent cases where photographers have lost control of their work (and lost out on potential income from those images). The law is quite clear about the ownership of the image, as noted above. The problem is that pursuing legal remedies in these situations rarely if ever is worth the expense, unless the images are actually registered with the Library of Congress. Knowing the law and acting to control the ways your images are disseminated is the best way to protect yourself.
Much of the speculation and talk online about model releases is equally far off the mark. In fact, releases are not required in any way for TAKING the initial photograph. Military bases, parts of airports and clearly private spaces (offices and hospitals) are places where you usually need permission to photograph, but again, that does not mean you need a model release for the photos. Though many policemen in N.Y.C. may tell you that you cannot photograph in the subway, in fact you legally can do just that.
The question of whether you need a model release revolves solely around how the image is used, not made. If the image is used in an editorial context such as a book, newspaper, magazine or fine art exhibit, you do not need a release. Any use that is under the umbrella of freedom of speech does not require a release. This is true even if you make money off the image.
A release is required when the use of the image has any kind of implied or stated endorsement. Though advertising is the obvious example of such an endorsement, there are many other image uses (such as on book covers) because they are used to sell the actual book. Ironically, the images inside the very same book will not generally require a release, since the content usually falls under the protection of freedom of expression.
Another thing to know about model releases is not to fudge on them. The man you might photograph in some tiny town in the third-world could have a relative who works in NYC. Once they see their relative on a billboard and find out that you did NOT have a model release, they will find a lawyer and you will lose any resulting lawsuit. People have a right to control how their image is used when it comes to endorsements and that is why advertising uses require a model release.
In my photographs I often will not show faces, or make silhouettes which solves the release issue and makes for more dramatic images since hands, body parts and the like are often more symbolic.
I also restrict what I send to which stock agencies. The agencies that I work with (primarily editorial) know that releases can be helpful to ease the worry of an end-user, but they are not required. Despite that, many agencies are demanding to expedite their processes having releases ready and available on a moment’s notice.
Understanding model releases is important. When you need them (or when you do not) is determined by how the image is used and by a series of legal precedents. It is not based on what someone says on the web (including me)! By the way, despite what you read on the web, it is also not based on where you are standing when a photograph is made.
People who are photographed are starting to promulgate all sorts of weird ideas about who owns the work and what kind of permission photographers need to display that work. They can think whatever they want. The law is quite clear on these matters. It is clear in conversations with photographers that these questions are perceived as somehow “unset- tled.” Nothing could be further from the truth.
Resources: Library of Congress: loc.gov/; Articles: Nussenzweig v. Dicorcia – wikipedia.com, That Famous Space Shuttle Photo: When is Sharing Stealing? – msnbc.com; Model Release: What Every Photographer Should Know About Model Releases – thewellspoint.com; Books: Business and Legal Forms for Photographers, 4th Edition – amazon.com.