You Are Always Allowed to Sell Photos without a Model Release

Photography business analyst Dan Heller has written a helpful post in which he busts common misconceptions photographers in the US have about model releases. A big one is that you need to first obtain a model release before selling photos of people. Heller writes,

[…] newspapers buy photos, and their use of the photo is unlikely to need a release. So, selling a photo (and making a profit doing so) to a newspaper also does not require a release. And because the law does not require you to have any knowledge of the buyer or their intended use of a photo, you are always allowed to sell photos without a release.

His point is that model releases have to do with photographs being published, not sold. A photographer cannot publish the photos however they’d like, but they can sell them however they’d like since liability rests solely with the eventual publisher. That said, it’s still a good idea to always use one, since they’re often required by the buyers.

Busting Myths about Model Releases [Dan Heller]

Image credit: 257/365 by /*dave*/

  • Wing Wong

    Interesting… it’s like pushing on the liability and responsibility down/up to the publisher. 

  • Anonymous

    The licensing agreement that I get from clients who buy my photos typically states that I assume all liability for missing model releases. That’s something I negotiate to remove from the agreement.

  • Eric

    The distinction in “publishing” is tied to the commercial nature of the published image. Editorial use is non-commercial and, therefore, is unlikely to ever require a model release. Advertising use is a commercial publishing and, therefore, requires the consent of the subject to use their likeness when tied to a brand or endorsement.

  • Anonymous

    What Eric said.

  • Tatyana Skymyrka

    ability to publish the photo is a major marketing factor. 

    It is not likely publication will be spending separate/additional resources to obtain necessary releases to use the work if their intent is to distribute it publicly.  So, in real world terms, while you do not need a release to market the photo, the odds of it being sold are tangible if and only IF release documentation is present prior to transaction.

  • bob cooley

    Clarification: Editorial use is often also a commercial use (the publication is still profiting in part from the use of the image), but most images used for news-gathering purposes do not require a release. 

  • Joey Miller

    So…what about that whole Vampire Weekend scandal?

  • Michael Zhang

    It’ll be interesting to see how that turns out… Apparently one of the claims is that the model release that appear to have the woman’s signature was forged ( If the band wanted to make sure they had the rights to use the image, and were presented with a forged document, that would be a pretty different scenario eh? :)

  • guest

    Would you need a release if you wanted to publish a book of your own photos? that’s not really a commercial use is it?

  • Josh5k

    It is if you are selling it :-)

  • Eric

    Hey Bob – Editorial use is not a “commercial use” with regards to the privacy rights of the individual in the image. It’s a legal distinction here – and the term “commercial use” is a legal “term of art” in that regard. 

    While the publication may be a for-profit organization, it is not a commercial “use” of the image (unless, say, the publication was using the image to promote its brand).  Editorial use is a type of use that is irrespective of the for-profit nature of the entity that uses the image “editorially.”

    Does that clear up the distinction?

  • Klrbulk

    I don’t believe that is true, again the distinction has to be drawn between a book that contains works of art (your photos) and the use of an image in a call to action or effort to establish a relationship or endorsement.  selling a book of your prints, vs selling a single print are not different.  What I took from the article is that the mere fact that you gain profit from the print sale does not by default make it a commercial sale.

  • A Marshall

    Seems all very complicated and very open to interpretation.

  • Irvin Kelly

    Cool read.