We all wish that photography was as simple as grabbing a camera, your favourite lens, and shooting away. However, taking the picture isn’t the whole picture – pun intended. Another important aspect is the photo release form.
Whether photography is a fun hobby or your career, it’s important to know the legal aspects of the craft. Otherwise, you might find yourself in some trouble.
Photo release forms are a very important part of photography. And they’re not just about photographing people either.
Disclaimer: I am not an attorney nor a lawyer. The information presented in this article is not intended to act as your legal bible. This is solely reference material. Please consult a lawyer for any legal matters. The below mentioned laws are based on the United States legal system. The information can vary by country, provinces, and districts.
What Is a Photo Release Form?
In basic terms, a photo release form is a contract between the photographer and the client, subject, owner of something in a photograph. Release forms secure legal permission to publish images of people and property.
Publishing refers to posting online in a public forum (such as social media or your website), print medium, television medium, and everything in between.
Release forms can be as simple as allowing one party to publish the images indefinitely and for any reason. Or they can come with very specific criteria or rules for publication. Release forms ensure that there are no grey areas when it comes to using an image or not.
I would highly suggest you always have a stack of release forms on you. Using someone’s likeness (or certain types of property) without a set agreement can have some serious ramifications.
In the United States, a photographer can get in trouble for using someone’s likeness commercially without a release form from the subject. Likewise, it is illegal for a client to commercially use images from a photographer without a photo release form.
Photo release forms are most common in private or staged photo shoots.
The Difference Between a Public Place and a Private Place
Private sessions feature photo release forms frequently. What about street or candid photographers?? Where do they fall into place with release forms?
To answer this question, we must first explain the distinction between a public place and a private place.
Anyone in a public place, such as a sidewalk or a street, has no legal expectation of privacy. Anyone in a private place has a legal (and reasonable) expectation of privacy.
Expectation of Privacy
Expectation of privacy is a term that states whether or not the privacy protections granted by the Fourth Amendment apply to them or not. Among these privacy protections, the one that is relevant to releases is allowing you to tell someone not to take your picture.
If you are on private property, such as a home, you have the right to prevent someone from taking your photo if they are standing on private land. The moment you leave private land and step onto public land, you forfeit your right to privacy. Anyone can photograph you without your consent.
For street photography, yes, you can photograph anyone you wish on public property. You can even sell these photographs without a release form. The subject has no right to privacy on public property. Ethically, it’s always the nice thing to do to ask permission.
Ethics aside, that is what the law says. However… this isn’t a free-for-all pass. You can sell these photographs as fine art, to a newspaper, or other news outlet.
You cannot use these images to promote yourself if the subject is recognisable. The law also says that you cannot commercially use these images in any derogatory, defamatory, or slanderous way.
A recognisable person (or property) in a photograph has a likeness. In a legal sense, one’s likeness is the representation of that person or private property being used for promotional reasons.
It doesn’t matter what your status is, whether or not you’re a celebrity, whether you’re rich or poor. Every person automatically has a likeness, and with that every person has the right to protect his or her likeness.
Let’s say you photograph someone on public property. And then use this photograph to promote something without their consent. In this case, you’re in the wrong.
This ties in with a person’s right to publicity – controlling the usage of their likeness for publicity purposes. You would need a release form because this counts as commercial use.
Wait, I just used the term commercial use. What does this mean?
What Is Commercial Use?
Simply, commercial use is anything created for profit. Most people think of commercial use in terms of selling something, such as a photography print. Yes, this is the most basic form of commercial use. However, commercial use is far more complex than that.
Anything used with the intention of profit is commercial use (such as marketing and advertising). If you post a photograph of someone on your Instagram and use that photograph to promote your photography service, that is commercial use.
Yes, you are not making a direct profit from that image alone. But you are using that image to promote something that will provide you with money at some point.
Though this doesn’t pertain to release forms for people, this does pertain to property release forms. If a client is paying you to produce photographs for them on private property, this is commercial use.
As such, unless your client owns the property, you’ll likely need a property release.
There are instances in which something that would appear to be commercial use is actually not commercial use at all. If you sell an image to a newspaper, that doesn’t constitute as commercial use.
The person’s right in the use of his image must be evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press, interest and is broadly construed.
There are other exceptions to photography and the law as well. However, a legal entity’s advice would be best when determining these. Attempting to explain all of the rare exceptions would be a novel!
When Do You Need a Release Form?
The first situation is a release form from photographer to subject. If you want to control how the subject uses your work, you need a release form that details the conditions of release.
If the client wants to print the images, they legally need your written permission. You can grant this with a release form.
The second situation is a release form from subject to photographer. In general, if you’re going to use your images commercially and the subject is recognisable, you need a release form.
You don’t need to give a release form to a model if the subject or location are unidentifiable or cannot be identified beyond a reasonable doubt.
To make it even easier to determine if you need a form or not, ask yourself these questions:
- Can people recognise the subject in the image?
- Is the photograph for commercial purposes?
- Is the photograph going to be used for advertisement?
If you answered “yes” to number 1 and yes to either number 2 or 3, you need a release form. If you answered “no” to number 2 and 3 or to number 1, you do not need a photography release form.
There are different kinds of photo release forms. Each release form has its own specific purpose, and now we’ll go through some of them.
Types of Photo Release Forms
Photo Release Form / Photo Consent Form
The term photo release form is an umbrella term for various releases. However, in my experience, the most common usage of the term photo release form is for when a photographer is granting their client or subject use of the photographs.
With a photo release form, the photographer is telling the client that they can display the photographs with the intent to either use the images commercially, as self-promotion, or more.
I use photo release forms when I photograph bands, because the images are for commercial purposes. Within the photo release form, I document the conditions of release. For example, my name must appear as a credit line within a certain proximity of the image, etc.
If your client wants to use the images for publication, many publications will require a signed photo release form from a photographer before they print the images.
Print Release Form
A print release form is similar to the photo release form mentioned above. The two are not the same, however. A print release form solely handles the permission of printing photographs.
This form solely allows the client to create prints of photographs that you have taken. Clients are not legally able to print images without your written consent. Moreover, any print lab of quality will require a print release form.
Even Walmart now requires a print release form.
This precedent makes IPS (in-person sales) photographers very happy. It prevents clients from making print copies of images instead of purchasing the prints from the photographer.
In my own use, when I sell a digital package to my clients, they can purchase a print release form from me to be able to print those images.
Model Release Form
A model release form states that the model of the photograph consents to having their likeness used by the photographer.
In other words, the model agreed to be photographed. And the photographer can use the resulting photograph as outlined in the document.
Let’s say you intend to publish the photographs you take of someone online, use them to advertise your business, in a portfolio or print the images for commercial use, etc.
Your model must sign a model release form in these cases.
A model release form protects you against future lawsuits your subject might file against you. This can mean anything from claims like invasion of privacy, defamation of character, and so on.
Likewise, depending on the terms set forth in the release, the photo release form protects the model as well.
Minor Release Form
Similar to a model release form, the minor release form is for subjects under the age of eighteen. In the United States, you must be eighteen years or older to sign a contract.
A parent or guardian must sign this form on behalf of the child you are photographing if you intend to use these images commercially.
In general, it is a good idea to always get a consent form signed when there are minors in a photo session.
Property Release Form
Property release forms are an interesting beast. If you want to publish photos of property that does not belong to you, it’s essential to get the owner of said property to sign a release document.
However, this is specific to whether or not the property is recognisable beyond a reasonable doubt.
Many likely think of physical locations when it comes to property release forms. However, the law in the United States also considers animals to be property.
If you want to commercially use photographs of a recognisable dog, cat, or other pet, you will need a property release form. Same goes for a cool car, a neighbour’s garden, and anything else considered property.
That being said, here is a fun fact. If an animal reaches celebrity status, such as Grumpy Cat or Lil’ Bub, you will need a model release form, not a property release.
That is because celebrity status isn’t species-dependent.
Building Release Form
If you take a photograph of the outside of a building, you will use a building release form.
If you want to publish a photograph of a building that you do not own, it’s important to get permission from the building’s owner or his or her official representative prior to doing so.
Copyright Release Form
This is the rarest release form you will see. A copyright release form means you are giving up all of your rights to an image and transferring that over to someone else.
The photograph will no longer belong to you after signing this form.
Copyright release forms or “rights grabbing” forms as they are called informally, are seen most commonly when doing e-commerce photography or other retail form of photography.
Tips for Using Photo Release Forms
- You can find plenty of templates for free online. But I would highly recommend hiring a contract or intellectual property lawyer to draft a release form for you to ensure it is legally sound. Not all online templates are legally binding.
- Prep your paperwork ahead of time.
- Make sure your document is legible.
- When personalizing release forms for each client, be specific about what photo session, images, date, and location the release pertains to. Never leave anything open-ended or up for interpretation. Be specific.
- The law states that the client needs to have a reasonable amount of time to review a contractual document and agree or negotiate its terms. A release form is a contract. Be sure to send your client the document prior to the photo shoot and give them ample time to review. If you present the contract without notice on the photo shoot date, it can be considered under duress.
- Remember to give your client a copy of the document!
Read our tips on stocks photography vs real photos or getting started in commercial photography for more interesting photography know-how.
To make things even easier, we have a post on best model release apps to check out next!
A note from Josh, ExpertPhotography's Photographer-In-Chief:
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