The Right of Publicity is the control over the commercial use of your identity, which can include your image, likeness, name and any identifying features like your voice, signature or even mannerisms. There are several difficulties inherent in interpreting the Right of Publicity, especially since it’s a state matter rather than a federal one, which makes infringements subject to legal opinions that vary state by state and even country by country. Making matters more complicated, it’s often viewed as a property right over a personal one since infringements can happen postmortem. Then, of course, you have the Internet and its myriad social-media venues, which has both helped and hampered the industry by proliferating credited and, unfortunately, noncredited works. Celebrities have less rights over common citizens when it comes to the Right of Publicity, but at the same time they’re far more active in regard to litigation over infractions. In other words, not only is the Right of Publicity complicated, but trial and arbitration results are rarely consistent. What this means to photographers is that even if you don’t legally need a model release, it’s a good idea to use one at all times.
Myth: You Always Need A Model Release
Online Model Releases
| Thanks to digital, it’s simpler than ever to have a release on you at all times. There are several resources for downloading model releases online:
The ASMP also offers its own free ASMP Releases app for carrying several customizable forms on iPhones and iPads (itunes.apple.com/us/app/asmp-releases/id540270175?mt=8), with an Android app planned for the future.
National Press Photographers Association
Whether using printed copies or apps, if you’re worried about talent arguing that their signature is falsified, take a photo of them next to the freshly or digitally signed release. Remember, these forms provide very broad coverage. Specific projects may require more sophisticated contracts, and Internet usage of imagery is still mired in uncertainty.
To be clear, there are several situations where a release won’t be needed. If the person can’t be identified in any way, you’re in the clear. If the person is visible, but isn’t a significant focus of the image, in crowds, for example, most likely you’re safe to publish an image. You also can publish regardless of release when fair use comes into play. This grants usage of materials where it primarily provides a benefit of some sort to the public, like educational or informative situations. Parodies generally are covered under fair use, as are researched works, relevant news stories, critiques, education and Internet searches. Commercial use, on the other hand, always requires a release. It covers advertising and any direct sources of financial gain. In these same instances, property releases and all artwork, logos or designs will require a release and, in most cases, recompense—all of which can be denied by the creators.
Editorial use grants leniency in several cases, however, like newspaper, magazine and blog articles, but if there’s advertising in any of these venues, the usage could be considered commercial. Editorial works can’t include creative image enhancements, and they must not be posed or set up in any way, nor should they be defamatory if including a recognizable person. So you can see the thin line that photographers must traverse because the subjective question arises, "What exactly is and isn’t covered by the term editorial?" In the arena of sports photography, for instance, there are several logos, leagues and uniforms where trademarks and recognizable faces come immediately into play. Even when covering sports as a photojournalist, several of these trespasses can cause problems with publishing imagery. Street reportage is a similar situation, where technically the work falls under editorial as photojournalism, but in many situations, the subject of the photograph is an easily recognizable person, and in many cases, "man on the street" photographs have ended up in lawsuits. Even when the photographers have prevailed, being involved in a court case can consume considerable time and money.
Because of the difficulties in selling and licensing imagery, many stock sites give editorial limited support in comparison to the far more lucrative area of commercial photography. Getty requires a model release and a property release for any recognizable faces or places at all times, respectively, which simplifies the matter to a great extent. Regardless of planned output, you never can be too careful; always take the extra time to have a release signed and filed if at all possible. In the end, it’s simpler to cover your bases every single time—not only will you have less to worry about, but you also can sell editorial imagery to commercial clients.