In this first installment of "Correcting Misinformation," I'll take on what I think is a common misconception about legal considerations involved in selling your photography. And now, the standard disclaimer: I am not a copyright attorney, I don't play one on TV, and I didn't stay at a Holiday Inn Express last night. The opinions expressed here are exactly that: opinions. If you are in need of actual legal advice, you should find someone qualified to provide it, and that person is not me.
In the March 16, 2011 episode of the "This Week in Photo (TWIP)" podcast (which is an excellent podcast, by the way), the assembled panel discussed a recent brouhaha about Lady Gaga demanding the rights to photos taken during her concerts. The conversation meandered a little, and along its course, one of the panel members said:
"I don't know the ins and [outs] of copyright laws, but… Anytime that you are selling images, you have to have a model release if it's not for editorial use, meaning used for journalism."
Copyright law is murky at best, and if you ask any copyright question to a roomful of lawyers, you're likely to get a roomful of different answers. Then they'll start arguing about who's answer was right, which is why they can charge so much money. That being said, I believe the above quote is not quite true, in a pretty important way.
The internet has a wealth of information about model releases and luckily for us, some of it is even correct. The key issue here is the way in which the image is used. In general, "commercial" use of a photograph with a recognizable person in it (use that implies endorsement or approval of a product or service) requires a release; "editorial" use (primarily to inform the public regarding something "newsworthy") does not. There's another important case, though… What if you want to sell a print of a photo you have taken that has a recognizable person in it? A portrait, for example? According to the more authoritative sources I have seen (including the website for the American Society of Media Photographers), you do not need a model release to sell that print. If there is no advertisement or other commercial business use, you can sell a print of your photograph with a recognizable person without having obtained a model release.
What's the safer course of action? Obtain a model release for any photograph you take with a recognizable person in it. When you trip the shutter, you don't really know how you might want to use that photo in the future; getting a release will enable you to sell or license it for commercial use even if that wasn't your original intent. But even if you didn't get a release, realize that you still have options to monetize that photo, if that's what you want to do. And if you need legal advice about photography, speak to an attorney. Like Carolyn Wright, for example.
Looking for more great photography related info? Check out the PhotoFocus blog and podcast and theThis Week in Photography blog and podcast.
