Model Releases and Copyright of Photos

There tends to be a lot of confusion with models and photographers over ownership of photographs and model releases. In the United States there are laws which deal with the issues of copyright and ownership of photos. States can have additional laws on the subject. Laws dealing with copyrights and use of photos can be compicated. When dealing with model releases it is always a good idea to have an entertainment lawyer explain model releases to you. Many people can't afford to hire a good entertainment lawyer, so this article will help explain the general guidelines on copyright, ownership and model releases in the United States.

Copyright and Ownership of Photographs When There is No Model Release

The photographer owns the copyright to the photos because they are a creation or work of art of the photographers. The copyright in essence says the photographer owns the photographs but does not give the photographer a license to use those photos commercially. This is where a model release comes in. In a model release, the model is granting a license for the photos to be used commercially.

Without a model release, both the photographer and the model can use the photos in their portfolios. The photographer can sell prints of the photos for non-commercial use. Many models think that they can also sell prints of the photos, but they cannot because they do not own the copyright. Models also cannot alter the photographs because they do not own the copyright. If a model wants to sell or alter a photograph that is copyrighted by a photographer, they must get the photographers permission.

An Exception - When the Model Owns the Copyright

If the model hires and pays the photographer to take his or her pictures than the model owns the copyright to the photographs. In the situation where the model hires the photographer, the photographer is being paid for a service and is not the copyright holder. Because the model owns the copyright and is the subject of the photograph, the model can choose to sell the photos in any way they wish.

Hiring and paying a photographer gives the model full control of the photographs. It can be a great advantage to a model to hire the photographer if they want to sell posters of themselves. If the model owns the copyright, they do not have to get permission to sell the photos.

The Model Release

In the model release, the model gives the photographer rights to sell or use the photos in certain ways. This is where the model has to be careful. Many models do not understand or pay attention to what rights they are giving away in the model release.

The So Called Standard Model Release

A model release that gives the photographer all rights to the photographs is often referred to as a standard model release. There really is not a standard model release. Model releases can and do vary greatly. What is commonly referred to as a standard model release is very beneficial to the photographer and does not protect the model at all. The standard model release usually gives the photographer the right to alter the photographs in any way they choose and use the photographs in any manner they choose. This type of model release gives the photographer full control of the photos. It is not at all uncommon for a model to sign a standard model release that gives all rights to the photographer, to find that their photos have been used in a manner they find undesirable. Photos can be sold to adult magazines, used for phone sex advertisements, used to promote racial prejudice, animal cruelty, or anything else. This might not happen, but it can.

The Smart Model Release

The best model release is one in which the model specifies which rights that he or she wants to give up. If the model release states specifically where and how the photos may be used, he or she should not find their pictures used in a manner that they did not want them used. A model release can and should state where the photos can be sold and in which manner they can be used.

A very common trap that models fall into, is when a photographer tells the model he or she wants to take their picture for Playboy Magazine. The photographer gets the model to sign a standard model release that gives the photographer rights to sell the photographs anywhere and alter the photographs in any manner. The model then finds that her photos have been sold to another adult magazine that she did not want to be in or that the photos have been used for a phone sex ad or used on the cover of a porn movie. Because the model signed the standard release, she cannot legally do anything about it.

Making and Signing the Model Release

It is best to go over the model release before the photo shoot. This benefits both the photographer and the model. There is no point in doing a photo shoot, if you can't later agree over the use of the photos. It will just be wasted time and money. It would be ideal to go over the model release before the day of the photo shoot so that any needed changes can be discussed and made.

A model release does not need to be complicated. It simply needs to state where the photos can be used and if the photos can be altered. The model release can also state if the model is given permission to alter and/or sell the photographs.

If the model wants to give the photographer a lot of leadway in selling the pictures, the model release can say something like: I, (models name), give (photographers name) permission to sell my photographs to any company as long as the photographs are not altered or made to show a manner which was not originally shown. For example, (give example). In addition, the photographs may not be used in (state manner). This type of model release is not as secure as one that simply states the photos may only be sold to Vogue magazine, but it is better than the standard contract. The problem is that the model may not think of every way that the photo cannot be used. In addition, sometimes wording can be subjective. For instance if the model release were to state that the photos can not be used in a pornographic manner, who is to decide what is pornographic? The model may consider something pornographic when the photographer considers the same thing art. Who knows whose side the court would be on.

A model release should be typed, but a handwritten one can be used. If a typed model release needs changes and you can not type a new one, handwritten changes can be made. If you need to cross out something in the model release, have both the model and photographer sign or initial next to the part that is crossed out. If something is added to the model release, have both the model and photographer sign or initial next to the additions.

Tips for Models

Review a photographer's work before taking pictures with them. Do your research. If they predominately take adult photos and you are interested in fashion, then it is probably better to find a different photographer.

Don't take photos that you are not comfortable taking.

Some photographers are just not honest. A common ploy used, is the photographer says that he needs photos for a new phone company. The model signs a standard release and finds her photos being uses for an adult sex phone line. Do your research on the photographer. Usually pictures with a phone are going to be used for adult sex phone lines. If it really were a photo shoot for Verizon, then Verizon would most likely be involved.

Don't forget to be safe. If you don't know the photographer, bring somebody with you to the photo shoot. If the photographer won't let you bring somebody with you, then find a different photographer.

There are many great photographers out there, but there are also plenty of dishonest ones. Do your research and use good judgement.

If it is agreed upon that the photographer will provide the model with prints of the photos, state it in the model release.

Question, Answers and Examples

Question
I am not taking nude photos, so do I still have to worry about signing a standard model release?
Answer
Yes, even clothed pictures can be sold in a manner in which you find undesirable. For instance, your photo can be used to promote a cause that you don't agree with. In addition, if you gave the photographer rights to alter your photograph, you may find that your head was put on a nude body, or that you were put next to a phone for a phone sex ad. With computer alterations, many options are possible.

Question
I am a photographer and I want to be able to make simple lighting and framing adjustments to the photograph. Can I do that without the model release stating that I can make alterations?
Answer
If the alterations only consist of simple lighting and framing adjustments, then an alteration clause in the model release is not needed because these adjustments are part of the photography process. If the alterations will change the meaning and pretense of the photograph then an alteration clause in the model release will be needed.

Question
My photographer wants to take a fairy picture of me. He needs to digitally put wings on me in the photograph. He wants me to sign an alteration clause in the model release. Should I?
Answer
You can state in the model release what specific alteration you will allow. For example, the photograph can be altered by adding wings to my body to make me look like a fairy. These are the only alterations allowed.

Question
My photographer does not believe me that he can use my pictures in his portfolio without a model release. What should I do?
Answer
If your photographer does not feel comfortable using your photos in his portfolio without a model release you can sign a model release that states that he is allowed to use your photos in his portfolio only.

Question
My photographer wants to use my photo in an art gallery, does he need a model release?
Answer
He probably does. State in the model release that you allow the photos to be displayed an art gallery.

Question
I am a photographer and I want to use a models picture to advertise my photography services. Do I need a model release?
Answer
Yes you do. Using the models picture in an advertisement is using the photograph for commercial purposes.

Question
My photographer wants to take my picture for a fashion magazine but he does not know which one he will sell it to, so he wants me to sign a standard release. Should I?
Answer
No. You can state in the model release which magazines the pictures can be sold to. In the event that your photographer finds a magazine not listed in the model release to sell them to, he can come back to you to sign another release.

Question
A photographer wants to take my pictures in exchange for prints; I want to sell those prints on my web site. Can I?
Answer
Not without the photographers' permission. Get written permission from the photographer to sell the prints. In addition, if you want to alter the pictures in any way, you also need to get permission from the photographer.

Question
I really want to do a photo shoot with this photographer, but he won't do it unless I sign a standard release. What should I do?
Answer
I would advise against signing a standard release. Even supermodels don't sign standard releases. If the photographer insists on a standard release, he might want to use the picture in a manner which you would not approve of. In any case, if the photographer won't budge about the standard release, I would find another photographer.

Sources:
http://www.copyright.gov/
Protect Your Artwork - Nolo
Patent, Copyright & Trademark: An Intellectual Property Desk Reference - Nolo

** This article was not written by a lawyer. This is not an all-inclusive and definitive resource for the laws concerning copyright and ownership of photographs and model releases. This is not intended to replace legal advice. In addition, laws frequently change. The author has done their best to try and provide accurate and current information. It is the readers responsibility to do their own research and verify any information found in this article. The author and / or Associated Content are not respnosible for the accuracy of the contents of this article. **