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Questioning the need for a model release or similar form


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#1 Ambress

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Posted 20 September 2008 - 01:53 PM

Hello all,

I wasn't sure what forum area was best to post this question, but as even the use of any of my underwater photography images in a publication for sale is a new experience for me, I'll just treat this as a "beginner's question".

The photos found at http://ambress.com/uwpics/publish have been selected for inclusion in a book to help illustrate the story. None are used on the cover of the book, so there is no direct use of the photos to promote sales of the book. The author asked me early on if I felt a model release was needed for any of the photos, to which I replied "no". My first thought was that all locations were public places and the persons in the photos were not unambiguously identifiable. But I am no professional photographer and have never had to concern myself too much with model releases except in clearly obvious cases. As I never really anticipated any use of my images in a publication, I never sought to obtain any model release from individuals seen in my photos. My biggest concern is with the first photo, where the diver is at least "more identifiable" than the others, but some degree of ambiguity remains, if only for the fact that his dive mask and other gear helps hide any distinguishing features.

I will add that the diver in the first photo is a dive guide at the resort where I stayed. Whether he is still there (the photo is from 2006), I'm not sure, but certainly I could make an effort to contact him if anyone really thinks it necessary I obtain consent to use this likeness of him. He is not portrayed in any negative manner that would impact his job.

The other photos here do not seem to present any problem, as I think that there is easily enough ambiguity that the diver cannot be readily identified from his features in the photo.

I would appreciate any feedback if anyone knows for certain whether or not consent would be required from the persons in these photos, to use this likeness of them in a publication for sale. Again, all would be used only within the book, and none on the cover to help market it.

Thanks!

Daryl

Edited by Ambress, 20 September 2008 - 01:55 PM.


#2 james

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Posted 20 September 2008 - 02:05 PM

Yes, you certainly need a model release if you can recognize the person. The first two for example. Think of it this way - if he saw the book, would he know it was him?

You need the model release to protect yourself and the publisher needs it to protect themselves from being sued.

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#3 Ambress

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Posted 20 September 2008 - 03:22 PM

Hello James,

Thanks for the advice. Part of my confusion on this regards identifiability and your advice sounds as if the question boils down to whether the person in the photo can recognize themself? I would have thought it more of how identifiable are they to others, especially those who do not know them, based upon what features of the person can be distinguished. Somewhat akin to if a sketch artist was drawing someone's image based upon what few details they can gather from the photo, is there enough information there for someone to identify the person if they were to then see them in public.

The guy in the 2nd photo is a good example...I feel there is not enough detail to clearly identify him, nor for him to say for certain that is him, apart from perhaps recognizing the dive gear and clothing he is wearing.

Looking at the other photos of the dolphin trainer and resort video pro, clearly you cannot see and identify their face. But, if they recognize themself only for knowing the role they play, taken in conjunction with their appearance in profile, does that present a reason for requiring a model release from them as well?

Thanks,

Daryl

#4 John Bantin

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Posted 22 September 2008 - 09:50 PM

Legal questions are best answered by lawyers and I am not a lawyer. However, my sister-in-law is a lawyer (for an American multi-national) specialising in intellectual property rights.
Copyright belongs to the creator of the work in question. No-one owns the copyright to their natural appearance (except maybe God) so for example, in the UK you can reproduce a picture of someone doing something they did without problem. The problem only arises if you use a photograph to defame them in some way. I once took a picture of a celebrity diving and later sold it for use in an advertisement. Her name was not mentioned. The court found that because she was wearing a mask and had her face obscured by a regulator, there was no case to answer. When asked how she knew it was her, she famously replied that she recognised her mask!

Things are different in the USA because of a different legal system where predatory lawyers can tie you up for years in frivolous cases. Just as in the USA you can sign away your statutory rights and give permission for a diving company to be negligent (not possible in Europe) you can sign away the rights to anything else. Therefore I would get anyone and everyone to sign a model release form that states that the images so obtained are deemed to represent an imaginary person. It looks like many of the pictures were taken in the Bahamas where they have a legal system based on English law. If so, I wouldn't worry about a thing!

Edited by John Bantin, 22 September 2008 - 09:55 PM.

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#5 Kelpfish

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Posted 25 September 2008 - 04:42 PM

I do a lot of stock photography and unless the image is purely for editorial use you need a release. The rules for my stock agencies are that even if the person is not recognizable, if they are the primary subject of the image, you need a release. Since the book is saleable it falls into a different category than editorial images (like newspapers) you must protect yourself and get a model release signed. There are lots of model releases on-line.

Joe

Edited by Kelpfish, 25 September 2008 - 04:43 PM.

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#6 Ambress

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Posted 25 September 2008 - 10:53 PM

Thanks everyone for your advice. As work on the book has progressed, there is only one image remaining where there is some degree of concern, and that is the photo of the diver alongside the turtle, where the diver's face is seen pretty clearly. I have read a wide range of opinions here and in other web-based articles on the topic of model releases, and both I and the book author/publisher feel comfortable that a model release is not essential in this case. While the diver may recognize himself if he saw the book, the question may be asked if a judge would recognize the diver well enough to not confuse him with another person of similar features, if any sort of legal action was taken. There is also the non-commercial nature of how the photo is used (not to sell the book itself by any promotion on the cover, nor to promote any product, but only to illustrate story), and the fact that it poses no risk of defamation to the person depicted. The photo in question was taken in Roatan, Honduras of a resident there, not a U.S citizen where the book will be published, so perhaps that too provides a degree of isolation. Having said all this, no final decision has been made yet, as the book still remains to be printed and there is still time to at least make some effort toward trying to contact this person if I can reach someone who knows him.

Thanks again,

Daryl