Copyright Scott Bourne 2002 - All Rights Reserved
Today’s audience question comes from Julie Pacini…
“Hi Scott, how do you get permission to take someone’s photo, or to use the photo once it is taken? Do I have to get permission from all of the people in the photo? How does that work, if you are going to use the photo either selling it or making it into cards, for example, or use it on a mouse pad, just some examples to help answer the question.”
Thanks for the question Julie. Let me preface my answer by saying I am not a licensed attorney so I cannot give you any legal advice. I in fact suggest you check with an attorney before you make any decisions here. But I can tell you what I do and how I deal with this situation.
Unless I plan to use a person’s photo in a commercial advertising manner, I don’t ask for permission. If I planned to make and sell products such as mouse pads with your face on them, I’d need your permission in the form of a model release. You (and everyone else) have your own “right of publicity.” So I can’t use your likeness in a commercial manner without your permission.
To specifically answer your question – the way I get permission is simple. I just ask :)
I have model releases with me at all times. They are very short. Here it is:
MODEL RELEASE: In return for one 8×10″ print of one image of THE CLIENT, THE CLIENT hereby assigns and grants “YOUR COMPANY NAME HERE” and its legal representatives the irrevocable and unrestricted right to use and publish photographs of THE CLIENT or in which THE CLIENT may be included, for editorial, trade, advertising or any other purpose and in any manner and medium; to alter the same without restriction; and to copyright the same. THE CLIENT hereby releases YOUR COMPANY NAME HERE and its legal representatives and assigns from all claims and liability relating to said photographs. It is agreed that YOUR COMPANY NAME HERE may display and use the photographs taken for advertising, display, website and internet promotion, photographic contests, public display such as in malls, photography books, photography instructional books, store fronts, window displays, studio display, television advertising, magazine advertising and any other purpose thought proper by “YOUR COMPANY NAME HERE”.
If I think that a photo has commercial viability, I simply ask the subject if they would mind signing a release and I offer them an 8×10 print in exchange, which I promptly mail to them first thing when I return to my office.
In more than 30 years of making photos, nobody has ever turned me down.
Now I don’t ask for permission or a release, if I just plan to use the photo for instruction, education or demonstration. I also don’t ask for permission or a release if it’s news or fine art. Under those circumstances, I just fire away.
One thing to think about is the difference between having the LEGAL right to make a photo and whether or not common sense says not to. I know that in general, I have the right to make photos at the airport (except for the security areas.) But I don’t because most of the badge-heavy cops at the airport will hassle me, even though I am within my rights. I don’t make photos of little children at the playground, even though I am within my rights – because their parents may decide that I am a danger to their children and take action against me.
This is a complex subject and can’t be covered in-depth in a blog post, but in general, the rules are simple. Not an ad or a commercial venture? No need to ask – but you might want to ask anyway just to be polite. Commercial ventures require permission.
I hope this answers your question and thanks for sending it in.
If you’re reading this and would like your question answered, please send it to twipphoto@gmail.com with the subject Q&A. I can’t answer every question, but I will read them all and try to use them as a source of information upon which to build future blog posts.
Wow, that post really cleared a lot of things up for me. Thanks Julie for the great question and thanks Scott for your insight into this matter.
Wow, that post really cleared a lot of things up for me. Thanks Julie for the great question and thanks Scott for your insight into this matter.
Cleared up a lot for me too. Thanks Scott! I’ve always been afraid to ask a complete stranger for permission, thus I have completely stayed away from taking anyone’s picture except for fine art purposes as you mention. I really like your idea though of offering to send the 8×10. I take pictures at my son’s baseball games and I always wonder if other parents are concerned about their kids’ pictures being taken in the background etc. I always go out of my way to really get to know the other parents and show them my gear and sample pictures so that they are comfortable with me shooting the games. I’ve never had a parent that has expressed an issue and many have asked me if I would get pics of their kid. I think being upfront and really open about what you’re doing is the key.
Cleared up a lot for me too. Thanks Scott! I’ve always been afraid to ask a complete stranger for permission, thus I have completely stayed away from taking anyone’s picture except for fine art purposes as you mention. I really like your idea though of offering to send the 8×10. I take pictures at my son’s baseball games and I always wonder if other parents are concerned about their kids’ pictures being taken in the background etc. I always go out of my way to really get to know the other parents and show them my gear and sample pictures so that they are comfortable with me shooting the games. I’ve never had a parent that has expressed an issue and many have asked me if I would get pics of their kid. I think being upfront and really open about what you’re doing is the key.
I was wondering Scott, if you have a release from someone (particularly a child) and another company asks me to give/sell that photo to that company. Can I give it to them? What are the repercussions if, say, that company uses the photo VERY inappropriately. I have no sway with that company and could have an angry parent/child on my case?
I was wondering Scott, if you have a release from someone (particularly a child) and another company asks me to give/sell that photo to that company. Can I give it to them? What are the repercussions if, say, that company uses the photo VERY inappropriately. I have no sway with that company and could have an angry parent/child on my case?
Thanks for this post. :)
Thanks for this post. :)
Hi Scott, thanks for a great post. International readers should be aware though that these rules may be the ones in the US, but European countries typically have stricter ones. You would need a release form for fine art in France for example. Sad but true: Cartier-Bresson and Doisneau, if they were working today, wouldn’t be able to shoot the same pictures.
Hi Scott, thanks for a great post. International readers should be aware though that these rules may be the ones in the US, but European countries typically have stricter ones. You would need a release form for fine art in France for example. Sad but true: Cartier-Bresson and Doisneau, if they were working today, wouldn’t be able to shoot the same pictures.
Thanks – regular readers should know that I am a US citizen, living in the US, writing for a primarily US-based audience on a US-based blog. Accordingly, all my posts are written from that perspective and folks outside the US should always take into account that everything I write about; gear, legal information or anything else except photo concept stuff maybe impacted by laws, customs and traditions I am completely unfamiliar with and unable to report on.
Thanks – regular readers should know that I am a US citizen, living in the US, writing for a primarily US-based audience on a US-based blog. Accordingly, all my posts are written from that perspective and folks outside the US should always take into account that everything I write about; gear, legal information or anything else except photo concept stuff maybe impacted by laws, customs and traditions I am completely unfamiliar with and unable to report on.
Oh Geez, my sattelite images of the Mall in DC on Inauguration Day are going to be tricky to clear then.
The trickiest part of the question is, what if it is a crowd shot? Is it therefore a public event and the rights of the individual subjects are moot? Is it considered photojournalism at that point? Such as Eyemans Time Life Photos of audiences watching the 3d movie Bwana Devil.
Oh Geez, my sattelite images of the Mall in DC on Inauguration Day are going to be tricky to clear then.
The trickiest part of the question is, what if it is a crowd shot? Is it therefore a public event and the rights of the individual subjects are moot? Is it considered photojournalism at that point? Such as Eyemans Time Life Photos of audiences watching the 3d movie Bwana Devil.
Hi Bud,
The European laws (with each country introducing some variations :( ) are going to look at two things:
First, is the person recognizable? Then you may not depict him/her in any way that could hurt his/her reputation or private life – that’s about protecting image and privacy. This is taken strictly by the courts. If that couple holding hands in the background is not legit, they could sue (and some have)…
Then, is the person the main subject of the picture, or one of the main subjects: In that case, you need a release form – that’s about the rights associated with works of commercial value.
Of course, this applies to PUBLISHING your picture. Not TAKING it. For private use, you can shoot anywhere in public places.
And of course, there’s the notion of fair use and photojournalism. News do take precedence. So the couple in the above example won’t win if disputing its appearance in the background of a picture related to some big news event.
France has been an especially hard place for photographers recently, but the balance is swinging back a bit. How the courts interpret theses conflicting notions evolves over time.
Hi Bud,
The European laws (with each country introducing some variations :( ) are going to look at two things:
First, is the person recognizable? Then you may not depict him/her in any way that could hurt his/her reputation or private life – that’s about protecting image and privacy. This is taken strictly by the courts. If that couple holding hands in the background is not legit, they could sue (and some have)…
Then, is the person the main subject of the picture, or one of the main subjects: In that case, you need a release form – that’s about the rights associated with works of commercial value.
Of course, this applies to PUBLISHING your picture. Not TAKING it. For private use, you can shoot anywhere in public places.
And of course, there’s the notion of fair use and photojournalism. News do take precedence. So the couple in the above example won’t win if disputing its appearance in the background of a picture related to some big news event.
France has been an especially hard place for photographers recently, but the balance is swinging back a bit. How the courts interpret theses conflicting notions evolves over time.
Thanks, Scott. So, is the 8X10 the “valuable consideration received” promised by the release?
Bill
Thanks, Scott. So, is the 8X10 the “valuable consideration received” promised by the release?
Bill
I think many people misconstrue the term commercial to mean any monetary transaction between a photographer and a third party thus requiring model releases for anyone in a fine art print that you might offer for sale on your website.
This is not the case as far as I can tell and Scott seems to confirm this. To me, and like Scott, I am not a lawyer nor do I play one on TV, commercial means that the image will be used to advertise or promote a product, service, event or something similar. For these uses the photographer needs a model release. The photographer does not need a model release if the photographer intends to offer prints available for sale from their website or in a physical gallery.
I think many people misconstrue the term commercial to mean any monetary transaction between a photographer and a third party thus requiring model releases for anyone in a fine art print that you might offer for sale on your website.
This is not the case as far as I can tell and Scott seems to confirm this. To me, and like Scott, I am not a lawyer nor do I play one on TV, commercial means that the image will be used to advertise or promote a product, service, event or something similar. For these uses the photographer needs a model release. The photographer does not need a model release if the photographer intends to offer prints available for sale from their website or in a physical gallery.
If you sell a photograph of a person at a gallery is that considered fine art or commercial?
If you sell a photograph of a person at a gallery is that considered fine art or commercial?
The European “Human Rights” Court (I may have the title wrong) has within the last week or two decreed that no one may “TAKE” any photo of anyone in a public place without permission. Future tourists are really screwed if this stands up.
The European “Human Rights” Court (I may have the title wrong) has within the last week or two decreed that no one may “TAKE” any photo of anyone in a public place without permission. Future tourists are really screwed if this stands up.
Tamara, if you read my post above that is how I understand it. It is commercial if and only if it advertises or promotes a product, service, event or something similar. A picture of somebody standing in the street does none of those things. It does not become “commercial” because you sold it. It is “commercial” because of what it is used to do. As long as the picture was taken from a public place, as I understand it, you have every legal right to print and sell as many prints as you like.
Tamara, if you read my post above that is how I understand it. It is commercial if and only if it advertises or promotes a product, service, event or something similar. A picture of somebody standing in the street does none of those things. It does not become “commercial” because you sold it. It is “commercial” because of what it is used to do. As long as the picture was taken from a public place, as I understand it, you have every legal right to print and sell as many prints as you like.