When you decide that it's time to begin earning an income from your photography, there are many legal details you’ll want to learn about first. Possibly the most important is the model release.
Essentially, you cannot sell photos of people for commercial use unless you have formal permission to do so. This can be a bit complicated, so we'll go into the details for you here.
What Is Copyright?
Copyright means that you have the full rights to sell or reproduce work you have created.
In the U.S., copyright is automatically in place from the moment you create a photo as a photographer. Whether you take pictures for fun and relaxation or not, you own the copyright. You can formally register your copyright if you need additional legal leverage, but that is an in-depth topic for another article.
The only time this is not the case is if you are under contract to take images on behalf of a company. When you are contracted to create images for another entity, that entity owns the copyrights to the work you create on their behalf.
As the copyright holder of the work you create, you have full and exclusive control over what can be done with that photo. You can sell it, reproduce it, give it away, etc. No one else can legally do these things with your images unless you give them permission to do so.
In fact, when a photographer "sells" an image, they are usually just selling a license of use. That means they are allowing someone to use the image in specific ways, but they still retain sole copyrights to the image. This is also known as non-exclusive use of an image.
This, of course, becomes more complex if your picture is of a person.
What Rights Does a Photographer Have?
As the photographer and creator of an image, you automatically have exclusive rights to that image. Unless your image contains a person, place or object that also has its own rights.
Yes, this part is often confusing.
When you create a photo that includes a person – and that person is recognizable by the viewer – then that person also has certain legal rights that must be considered before the photographer can legally do anything with the image.
Essentially, the photographer has rights to the images they create, but people have the rights to their own images. And that's where things get complicated.
For instance, many people pay to have personal or family photos taken of them. They often assume they can do whatever they want with the pictures that are made because the pictures are of them. They often don’t understand that the photographer has the rights to the photos that were created, regardless of who was in them, and that they must get formal permission to give away or distribute those images.
The photographer is also bound by law. For example, photographers cannot display photos of people as part of their portfolio unless they have formal written permission from the people who are depicted in the images. Photographers also can’t give permission for non-exclusive use of their photos containing people unless permission is granted from the people in them.
What Rights Does the Subject Have?
People have a right to control how images of themselves are used. This means that they can prevent the photographer from selling, licensing, transferring, reproducing, or anything else, any images that they are depicted in.
People who are in images that were taken by someone else do not have the legal right to do anything with those images other than keep them in a personal album. Technically, they're not even supposed to put them into an online library that is available to the public. So, many of the images uploaded to Facebook and other social network sites are actually breaking the law. This has become so prolific however, that it is tolerated by both the public and by enforcers of the law. This is also why most portrait photographers place a copyright mark in their photos.
Many family photographers have also started including a basic digital release with their images, so that their clients are able to make prints at local stores.
When a photographer wants to use photos they've created for other purposes – such as in advertising, in their portfolio, in magazines, in film, or even as wall art or coffee mugs – they must first get permission from the person or people that are in the photo.
If the person in the photo is of legal age – usually 18 or older – they may sign a release form for the photographer. If the person in the photo is a minor, then the legal guardian of that child must sign the release form for the photographer.\
What Is a Model Release?
A release form is another name for a model release. Sometimes this is also referred to as a model and entertainment release.
The model release is generally a one-page, simple legal document that states a photographer may use images of a person in a specific way. Some model releases will stipulate the exact way the images will be used. If the photographer is planning to use the images only in a website portfolio for instance, the model release may state that.
Most model releases are quite broad, because photographers can license the same image multiple times, in multiple ways, for years into the future. This is quite common with stock photography. For this reason, some models may be hesitant to sign a release, because they have no control over how their image might be used. Most of us would not be happy to find our photo on an adult dating profile, right? This is where the wording of the model release is particularly important.
Examples of Model Release Permissions
Because of some abuses on the internet, putting specific phrases into the model release form is now considered to be standard practice. This helps to make the model feel more at ease about signing the release, and it provides a stronger legal standing for the photographer.
So, instead of using a broad or generic model release, we recommend one that specifies the type of use within the agreement.
An art photographer may use wording on their model release that states they're using the images to create wall art: "To create art or products for resale"
A photojournalist may have wording specific to magazine publishing, and a stock photographer may emphasize that they won't always know how the photo is used: "For publishing in X magazine/news outlet"
When a photographer wants to use images for adult-oriented purposes, their model releases tend to have wording to that effect. And of course, a professional photographer will discuss the intended uses before taking images that could be used in this fashion: "For adult-oriented purposes".Legally, adult-oriented model releases must have a copy of the model's identification as well, to ensure that they are of age.
The model release generally has a blank area to fill in the model's name, address and contact information. It also has the photographer's name, address and contact information. For full legality, the release must be dated and signed by a third party, or witness.
Many photographers lay the model's identification next to, or on, the release form itself and create a copy for their records. When getting releases for minor children, it's good practice to include an extra image of the parent or guardian with their ID as well.
Here are some sample links to get you started on the development of your own model release:
What is Commercial Use?
The term 'commercial use' encompasses a broad range. Essentially, any activity that could potentially earn income is considered commercial. So, if an image is used to promote your photography business – such as in your website portfolio – that is one form of commercial use. If an image is sold or licensed directly to be used in an advertisement of any kind, that is another form of commercial use. If an image is used to create products, such as calendars, website templates, coffee mugs and wall art – those are also commercial uses.
If an image is used for educational or news only purposes, those are considered editorial instead of commercial. Generally, a model release is not normally needed for editorial use, however, many publications have started requiring a release anyways, to ensure legal protection.
Some people believe that if a photo is available on the internet then it is free for them to do whatever they'd like to with it, including selling it elsewhere. This puts publishers at risk of lawsuits. By requiring model releases, they can greatly reduce those risks.
While this article explains model releases specifically. However, there are a few related release issues that you'll want to learn about as you begin to earn an income from your photography.
Property Releases – There are legal restrictions about using and selling photos of specific types of property, such as the lights of the Eiffel Tower at night.
Trademarks – There are also legal restrictions pertaining to use and sales of images that are associated with trademarked items. You cannot, for instance, legally sell images of the Apple iPhone without specific types of releases or licensing.
In the end, when you are ready to start selling your photos or using them to promote yourself as a professional photographer, you’ll need to cover yourself legally when there are people in your photos. And the standard way to do that is to simply have each person in the photo sign a model release.
About the Author: Kathy Burns is a professional writer and commercial photographer. Her commercial photography is available on iStock, Shutterstock, Dreamstime, and Fotolia. Disclaimer - Kathy Burns is not a lawyer and the examples used in this article are for illustrative purposes only.