By Howard Kier
photography – Magical Moments Photography
If a photograph of a person is hung in a corridor as decoration, it is considered art. But if that exact same photograph is hung in the exact same location and used as an advertisement, another set of rules comes into play.
Just as photographers control how their photographs are used, individuals control how their likenesses are used commercially. Copyright laws, which are federal laws, dictate this. However, for commercial use, model release or right of privacy laws vary from state to state. Generally, a photographer can use photos with your likeness as a piece of art. But, without permission, photographers cannot use an individual’s recognizable image to advertise their studios or show to future clients.
It is for this reason that many photographers include a model release in their contracts. The release asks your clients’ permission, before any photos are taken, to use their likeness commercially. When it comes time to use a specific image, most photographers will contact their clients to inform them which one and to seek final approval. If for some reason a client doesn’t like the image used, they can ask that it not be used—though, unfortunately, not all photographers will comply.
Releases needed when recognizable images are used
Model releases are only needed when a person’s recognizable image is being used. Generally, this means that when a reasonable person is looking at the photo, they can identify the individual in the photo. Just because you know you are in the photo, does not mean a model release is needed. For instance, if the people in the photo have their backs turned to the photographer, they are not recognizable, even through the décor or their clothes.
It is also possible that due to the size of the image on the page or screen, the person could be just too small to determine the subject’s identity. There are other factors that also may make identification of models difficult for a reasonable person. When in doubt, it is better to obtain a model release than risk creating problems with a client.
Remember, you control how your image is used and grant permission via a model release. To fully understand the right of publicity laws in your state, consult a local attorney.
Protect yourself and your business
With a little bit of understanding, you can prevent yourself from running afoul of copyright infringement, and keep your clients from running into trouble.
When requesting photos from a photographer for use in your business, remember, the photographer owns the copyright and grants you permission to copy that image via a usage license. Most photographers are willing to provide wedding planners complimentary files for use on their websites and in printed material. But, when the image includes a recognizable person, a model release is needed.
If the photographer is not able to provide you with a copy of the model release, then you need to obtain one from the client. Failure to do so could leave you open to a lawsuit. If you’re unable to get a usage license, or don’t want to, be prepared to take your own promotional photos and obtain your own model releases for anyone recognizable who appears in the photographs.
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