Model release when subject can never be found?

[Tronhard]

On the side issue of the pitfalls of taking images in public I stumbled across this cautionary tale when I was actually looking at the Nikon site and wandered off.

The original assault
http://www.vvdailypress.com/article/...NEWS/160519736

The follow-up reunion with the camera
http://www.imaging-resource.com/news...nd-nikon-d300s

[Shadowman]

Now that's a story and perhaps a bit of a lesson regarding asking for permission, "ask first" or don't ask at all.

[William W]

. . . I guess times have changed and some folks may view that as not quite appropriate.

I refer to my previous (post #18) in concert with and Trev’s and Bruce’s comments (posts #19 and #20 respectively).

This has little to do with the legality or the morality of whether you could or could not MAKE that photograph.

And it has nothing to do with other people's opinions.

***

. . . Our local camera club had asked for photo submissions for a fund raising calendar for next year and I posted one particular photo of a couple of kids playing on the local beach.

The salient point is (stated in lay terms and from a business opinion, having worked professionally as a Photographer in Canada), that “fund raising” will be interpreted as “commercial usage of the image”.

For that USAGE the PUBLISHER requires a MODEL RELEASE.

Now the PUBLISHER will likely be the Camera Club President (or similar “official person”).

And (probably a very unlikely event) if one PERSON whose LIKENESS is in THE IMAGE raises issue and that issue then seeks COMPENSATION, then … well it is becoming a litigious world.

The bottom line is, the Camera Club Members could be unaware of this point - they see it as raising money for a non profit organization… but if pressed I think that the Canadian legal system will see it differently.

Speaking plainly, and from the detail which has been disclosed by Susan, there probably is not a lot of risk – but it would easier to choose other images and probably a good idea to pass this conversation across the eyes of the Club’s Secretary and President.

Note also that “Releases” are not only particular to “people”.

One requires a “Property Release” in some situations where there is “property” in an image which will be used for “Commercial Use”.

There are several examples; a simple example is when a Portrait is made in front of an iconic landmark . . . it might be necessary to have a Property Release before that Image is sold to the Client to hang in their home. This type of “Property Release” is usually contained in a document (for fee) such as “Site Fees and Permission to Photograph”.

Again, in my opinion, the likelihood of litigation from an image used as a “fund raiser calendar” for a local camera club is slight – but none the less it is real. So, for example, if one of the images submitted for the Calendar is of a public building or landmark which has such warrant, then the COMMERCIAL USE of that image does place the PUBLISHER of the Calendar in harm’s way should a enthusiastic public official seek to litigate.

WW

[Suzan J]

Well, thank you all for the input. I didn't realize what a kerfluffel something like this could cause. I will just remove the photo from the calendar site to avoid anything unpleasant ramifications.

[Shadowman]

Well, thank you all for the input. I didn't realize what a kerfluffel something like this could cause. I will just remove the photo from the calendar site to avoid anything unpleasant ramifications.

Suzan,
Did the calendar committee ask for a model release or somehow imply only photos with a signed release could be submitted?

[Suzan J]

Hi John: In answer to your question, our camera club is very small and the process for submitting photos for the proposed calendar are very informal. Basically, they simply said to submit any photos to their website which would highlight the local areas of interest. There is no committee, per se, and after everyone has submitted their images, a few members will just select the final photos. I did remove my one shot of the beach (which had the aforementioned kids playing) and just left a few other landscapes without any people in them.

[Mike Buckley]

I think that's a wise decision, Suzan. It's better to be safe rather than sorry when it comes to potential legal issues.

[Tringa]

Got to take issue with you on a number of points Dave.

A public place in England (as opposed to the UK because Scottish Law may be different) is a place in Public ownership not a place accessible by the Public. Consequently, Rail stations (now privatised), Shopping Malls, cinema complexes, fun parks, football grounds etc. are not public places and you need the owner's permission to take photographs.

Even in a public place, if it's a general scene with people in it, that's ok. However, if the image obviously features a particular person (or building - See National Trust), you can take the photograph (and you own it and the copyright) but you still need a release to safely publish it commercially. You are however exempt if you hold a press card (and publishing it is in the public interest).

There are no Privacy Laws as such in England and so not observing the above is not illegal per se but you might find yourself facing litigation in court under Common Law.

You may find yourself breaking the law i.e carrying out an illegal act and being prosecuted under Criminal Law under The Prevention of Terrorism Act if you are seen to be making photographs of any persons or installation, which in "the reasonable opinion of the law" are designed to initiate or support and act of terrorism. The source of much controversy over recent years due to misuse by some police forces and others.

The same is true if you photograph installations covered by the Official Secrets Act. This isn't by the way, limited to Government establishments and assets. It includes nuclear power stations, most defence companies and any installation/ building in private ownership but leased to the government. It's always worth going to the main gate of these places because they are required under Law to display the Act in plain sight if it applies.

Note the difference between the taking of a photograph and subsequently publishing it.

Then, as you quite rightly point out, there are the local by-laws governing some Public places, to take into account.

There is a huge amount of discretion applied in most cases. I have never had permission refused when I wanted to take photographs at my local railway station or shopping mall provided I agreed not to upset the customers. Ditto the two Acts. For example, no one stops you taking photographs at air shows (but don't go poking your lens into the cockpit of someone's latest fighter A/C).

Fair points, John. Perhaps I should have included in my first post, "the above is not exhaustive". The whole issue is far from clear and further complicated by some places refusing the use of what they call, "professioanl equipment"

Dave

[Shadowman]

The attached link details a case of image use of an easily recognizable person, photographer's intended use, and interpretation of New York State laws on such use.

http://www.courts.state.ny.us/report...2006_50171.htm

[Manfred M]

My understanding is that a model release is required only when an image is used for commercial purposes, i.e. a advertiser wants to use the image to sell some product or other. Moral and ethical issues aside, I suspect your planned use would not run foul of any laws in most countries that use Common Law.

By the way, the model release can apply to both a person or property as property releases are quite common in commercial photography as well. I understand that if you are doing a commercial shoot, you will have to provide the buyer with both a release for the model as well as for the site. Minors obviously cannot sign model releases, so the parent or guardian would have to sign.

[Tronhard]

hi Manfred:
In response to you comment:

My understanding is that a model release is required only when an image is used for commercial purposes, i.e. a advertiser wants to use the image to sell some product or other. Moral and ethical issues aside, I suspect your planned use would not run foul of any laws in most countries that use Common Law.
.

As I commented earlier...

Suzan J. wrote: "Our local camera club had asked for photo submissions for a fund raising calendar for next year and I posted one particular photo of a couple of kids playing on the local beach." I believe that, despite the noblest of fund-raising intentions it could be considered a commercial use as the calendars will be sold, in which case I would think it is wise to get the model release than deal with the potential fall-out.

After similar advice Suzan removed her image from the selection material.

[Manfred M]

hi Manfred:
In response to you comment:


As I commented earlier...

Suzan J. wrote: "Our local camera club had asked for photo submissions for a fund raising calendar for next year and I posted one particular photo of a couple of kids playing on the local beach." I believe that, despite the noblest of fund-raising intentions it could be considered a commercial use as the calendars will be sold, in which case I would think it is wise to get the model release than deal with the potential fall-out.

After similar advice Suzan removed her image from the selection material.

While I am not a lawyer, I have done a lot of work in the past where I worked hand-in-hand with intellectual property lawyers. As such suspect that what Suzan was planning to do would clearly NOT be classified as commercial use. That is the reason I posted my comment.

If the children were used to endorse a product or corporate entity, my answer would have been different as that would clearly be "commercial use". Selling a picture, either singly, in a book or in a calendar without a model release is perfectly okay.

[Tronhard]

Hi Manfred:

I think we all wanted to protect Suzan as much as possible from risk in this matter. First I quoted what I said because I was under the impression you had been away taking that deadly shot (amongst likely many others), so I included that quote purely as an FYI. No disrespect was intended.

There seem to have been a range of opinions, including one from Cantab a retired lawyer in Canada who DOES think it would be a POTENTIAL issue and advised her to see a local legal authority in that area if she really wanted to go ahead, and that has been my approach. Neither of us are lawyers, but for the sake of fund-raising calendar is it worth the RISK in advising Suzan to go ahead and take the chance that the parent may have a big issue with having her child or children put in something that is sold? In practice it is a moot point as Suzan has already withdrawn the image.

I read at some length the general legal statement about photographers' rights and responsibilities from a Canadian Federal viewpoint, but I also noted that there are variations per province. I am not sure about Ontario, but I asked a friend who is a lawyer in a similar field in BC and they considered it a grey area, and not worth the risk, and that seems reasonable to me. It has, however, generated a lot of very interesting discussion and not limited to Canada either!

[Mike Buckley]

I just now saw two lawyers disagreeing with each other purely on the basis of legal grounds as to whether a particular action that has taken place will be ruled legal or illegal in the upcoming court case. Neither of the lawyers is directly or indirectly involved in the case. That explains why I think Suzan is very prudent in her decision to remove all risk to herself by removing her photo from consideration by the folks who will decide which photos will be printed in the calendar.

[John 2]

Just as an aside, the company lawyer I used to work with had a poster on his office wall. It was of a cow. At one end, the plaintiff was pulling on the tail. At the other, the defendant was pulling on a rope around the cows neck. But in the middle, there sat a lawyer on a three legged stool milking the cow. Go figure.

[revi]

I just now saw two lawyers disagreeing with each other purely on the basis of legal grounds as to whether a particular action that has taken place will be ruled legal or illegal in the upcoming court case. Neither of the lawyers is directly or indirectly involved in the case. That explains why I think Suzan is very prudent in her decision to remove all risk to herself by removing her photo from consideration by the folks who will decide which photos will be printed in the calendar.

As I understood the relevant laws/regulations etc., it's the publisher's responsability to ensure proper releases
are obtained, the photographer is not responsible in this respect towards anyone shown in the pictures (there
may be other reasons why the photographer might be liable, like pretending a release isn't necessary, or contractual
obligations).

Of course, she can get a lot of hassle if someone decides to sue, and there's the moral side to consider; but afaik,
purely legally, the absence of a release in itself doesn't present a risk to her.

And of course, any halfway careful publisher will want the photographer to provide the releases (and refuse to buy
any image without the relevant releases), but that's not the issue here.

[Cantab]

As I understood the relevant laws/regulations etc., it's the publisher's responsability to ensure proper releases
are obtained, the photographer is not responsible in this respect towards anyone shown in the pictures (there
may be other reasons why the photographer might be liable, like pretending a release isn't necessary, or contractual
obligations).

Of course, she can get a lot of hassle if someone decides to sue, and there's the moral side to consider; but afaik,
purely legally, the absence of a release in itself doesn't present a risk to her.

And of course, any halfway careful publisher will want the photographer to provide the releases (and refuse to buy
any image without the relevant releases), but that's not the issue here.

Remco, I do not know what the law is in France but a photographer needs to consider the law where he or she is, where the picture was taken, where any publication or commercial use occurred, etc. No one should assume that the law in one country, state or province is the same in another country, etc.

[William W]

I'd bet a Mars Bar that, in Canada, (and a list of other Countries) it is indeed the Publisher who has the responsibility to attain a Model Release for any image which is Published for Commercial Purposes - (Please see Post #23.)

Apropos advice to Susan, I think the main point is that she doesn't really want to be caught up in any hassle: additionally even though the implications for the Camera Club of using images which would require Releases (either Model or Property or both) are slight, they are still real and accordingly I do hope that Susan took my advice and alerted the Camera Club's membership to read this conversation so that all the membership is alerted to all the possible implications when using images for any fund raising activity.

***

Regarding the recently and newly raised point concerning Laws in France . . .

if Susan's image were made in France and as I understand "Children Playing at the Beach" is the main theme of that image - then as I understand French Law and also considering a Release is absent, therefore a logical conclusion is that permission was neither sought nor granted: if such is so, then the act of Making the Photograph would be illegal.

WW

[Donald]

I'd bet a Mars Bar ....

There's a man really prepared to go right out there on the edge for what he believes in. Big risk taker.

[William W]

Hilarious ROFPML