PetaPixel

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*/


 
 
  • http://blog.wingtangwong.com/ 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.

  • http://www.photographybay.com 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.

  • http://www.facebook.com/people/Tatyana-Skymyrka/723478596 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.

  • http://www.bobcooleyphoto.com 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?

  • http://www.petapixel.com 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 (http://en.wikipedia.org/wiki/Contra_(album)#Artwork_and_lawsuit). 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 :-)

  • http://www.photographybay.com 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.

  • http://bestphotographytraining.com/ A Marshall

    Seems all very complicated and very open to interpretation.

  • Irvin Kelly

    Cool read.