Who owns what? Model releases and copyright

Model releases and copyright seem to be the source of more confusion than almost any other aspects of commercial photography. Though the law in both areas is quite well established, all sorts of new and insidious ideas are being bandied about on the Internet, which are to the detriment of photographers (as well as morally and legally wrong.)

Most of what many people read (and say) about model releases and copyright on the Internet is dubious. I am not a lawyer. I do not play one on T.V. So do not consider this legal advice. But, I am a photographer and a teacher. As a teacher I get paid to explain things so people who do not know about something understand that better after I explain it. With that in mind, I am going to give a broad strokes explanation of copyright and model release law. Folks in the know may argue with the details and especially with how sweeping I may be in what I say, but at the core, what I say is current law (in the U.S.A.) I cannot speak with authority about how things work in other countries.

When any creator fixes their expression/interpretation of an idea, that fixed expression is copyrighted and belongs only to the creator. The creation may be a photo, a piece of music, a sculpture, etc. The ideas themselves cannot be copyrighted. The fixed, tangible expression of those ideas can be copyrighted. The copyright exists from the moment of creation. Registering work with Library of Congress offers the creator some additional important legal protections but when work is created it is copyrighted.

The creator owns that copyright unless they go out of their way to sign away that copyright. People who work on film crews are the classic example of creators whose work belongs to someone else, but that is because they have explicitly given away their rights, in writing.

The people/subject/place photographed in these same newly created/ copyrighted work have no rights to the work that was created. NONE. This is one of those new insidious ideas circulating on the web, that subjects of photographs somehow own a piece of the work that other creators (such as photographers) have made of them. The legal system has been very clear on the falsehood of this premise. If you go to: http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

You will read a Wikipedia entry that says:

In 2006, a New York trial court issued a ruling in a case involving one of the photographs of Philip-Lorca diCorcia. One of diCorcia’s New York random subjects was Ermo Nussenzweig, an Orthodox Jew who objected on religious grounds to diCorcia’s publishing in an artistic exhibition a photograph taken of him without his permission. The photo’s subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art – not commerce – and therefore is protected by the First Amendment.

Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig—a head shot showing him sporting a scraggly white beard, a black hat and a black coat was art, even though the photographer sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have “recognized that art can be sold, at least in limited editions, and still retain its artistic character (…) [F]irst [A]mendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes.”

Celebrities are one group of people increasingly trying to undo this protection. They want to take away our ownership of our work. Pop musicians are the most egregious offenders, pressing people who photograph concerts to give up the rights to their images to the bands. People sign stupid contracts all the time, but, to be clear, when a creator makes work, that fixed piece of work is theirs alone. The subjects have no rights to that work.

Completely separate of that is the question of model releases.

Much of the speculation and talk on line about releases is equally far off the mark. In fact, releases are not required in any way for taking the initial photograph. Military bases, parts of airports and private spaces are places where you may need permission to photograph, but again, that does not mean you need a model release for the photos. Though many policemen in NYC ma tell you that you cannot photograph in the subway, in fact you legally can do just that.

The question of whether you need a model release revolves solely around how the image is used, not made. If the image is used in an editorial context such as a book, newspaper, magazine or fine art exhibit, you do not need a release. Any use that is under the umbrella of freedom of speech does not require a release. This is true even if you make money off the image. To appreciate this, note the dollar figures that Philip-Lorca diCorcia was getting for his work.

Recently, people in authority at the various outlets where image are used have been promulgating insidious ideas about model releases. They are starting to demand releases for no rational reason. I came upon an especially egregious example of this when I was reading the rules for the Magnum Expression Award. (Yes, someone reads the rules, as all photographers should.) Buried in the rules it says:

With respect to any materials you submit in connection with the Magnum Expression Award, including any submitted images and your artist statement (“Submitted Materials”) you represent and warrant …that all necessary model releases have been obtained from any clearly identifiable person appearing in any image, together with any other relevant consents required, and that the use of any Submitted Materials in this competition or pursuant to the licenses granted herein does not breach any copyright, moral right, or other right of any other person or entity.

On one hand it is easy to see where this requirement originates. The lawyers at the corporate sponsor of the competition, HP (Hewlett-Packard) clearly think they need to protect themselves. On the other hand, how many photographers submitting work will actually have releases for all the subjects in the submitted work? Frankly, how may will even read the rules in enough depth to know that releases are required?

The kind of situation where a release is required is when the use of the image has any kind of implied or stated endorsement. Though advertising is the obvious example of such an endorsement, there are many other image uses that can require releases. Book covers, as a rule require releases, because they are used to sell something, in this case the actual book. Ironically, the images inside such a book will not generally require a release.

Understanding model releases is important. When you need them (or when you do not) is determined by how the image is used and by a series of legal precedents. It is not based on what someone says on the web (including me!)

You can read more about what I have written about model releases and find some great links to some useful on-line resources starting at:

http://thewellspoint.com/2008/12/05/what-every-photogapher-should-know-about-model-releases/

and

http://thewellspoint.com/2008/09/26/model-release-issues/

People who are photographed are starting to promulgate all sorts of weird ideas about who owns the work and what kind of permission photographers need to display that work. They can think whatever they want. But the law is quite clear on these matters. To some degree I am repeating myself blogging about releases and copyright, but it is clear in conversations with students (and with working peers) that these questions are perceived as somehow “unsettled.” Nothing could be further from the truth.

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