Legal Issue

clemensphoto's · April 14, 2009

I need clarification on taking pictures at a sporting event (kids - high school and under) and posting the photos online with a price. Do I need a model release for this?:dunno

Angelo · April 14, 2009

Ryan

this subject has been discussed dozens of times. have you tried using our search feature?

Toshido · April 14, 2009

Quick answer in Canadian law (I'm Canadian) is no. UNLESS you plan on selling the photos to promote a product.

i am sure you get a much longer legalese answer if you need it though.

Cygnus Studios · April 14, 2009

Bookmark this page Laws vary from city to state to country, so it is important to know the laws where you are shooting.

Blaker · April 14, 2009

Just for the peace of mind of the kids parents, esp if they are very young, you might consider posting the photos in a password protected gallery , and only making the password available to the kids families.

cpagility · April 14, 2009

Thanks for the link!

Karen

Cygnus Studios wrote:

Bookmark this page Laws vary from city to state to country, so it is important to know the laws where you are shooting.

Candid Arts · April 14, 2009

How I've taken this is this way:

If you are being paid to take photos, or are on some sort of private property (non-public) then you need a model release.

If you are not being paid (or compensated in any other form for said photography) and are on public property, then no model release is required.

Blaker · April 15, 2009

Candid Arts wrote:

How I've taken this is this way:

If you are being paid to take photos, or are on some sort of private property (non-public) then you need a model release.

If you are not being paid (or compensated in any other form for said photography) and are on public property, then no model release is required.

That's not correct.
If you are using a photograph of a person commercially, like in an ad, or in posters , or a book cover or something, then you will need a model release. Even if you are not being paid, like if you took a photo of some kids playing in the park, and then gave it to your brother or your friend to use as an ad for their local business, then you would need to get a model release from the kids parents. This holds true whether the photo was taken on public or private property.
It's the usage that counts here, not where it was taken or whether you get paid.
If that same photo was used for editorial work, such as in a newspaper, and it was taken in a public place, then you would not need a release, even if the newspaper paid you for the photo.

Hope that makes it a little clearer.

Candid Arts · April 15, 2009

Blaker wrote:

That's not correct.
If you are using a photograph of a person commercially, like in an ad, or in posters , or a book cover or something, then you will need a model release. Even if you are not being paid, like if you took a photo of some kids playing in the park, and then gave it to your brother or your friend to use as an ad for their local business, then you would need to get a model release from the kids parents. This holds true whether the photo was taken on public or private property.
It's the usage that counts here, not where it was taken or whether you get paid.
If that same photo was used for editorial work, such as in a newspaper, and it was taken in a public place, then you would not need a release, even if the newspaper paid you for the photo.

Hope that makes it a little clearer.

Helpful. Thank you.

Toshido · April 15, 2009

Blaker wrote:

That's not correct.
If you are using a photograph of a person commercially, like in an ad, or in posters , or a book cover or something, then you will need a model release. Even if you are not being paid, like if you took a photo of some kids playing in the park, and then gave it to your brother or your friend to use as an ad for their local business, then you would need to get a model release from the kids parents. This holds true whether the photo was taken on public or private property.
It's the usage that counts here, not where it was taken or whether you get paid.
If that same photo was used for editorial work, such as in a newspaper, and it was taken in a public place, then you would not need a release, even if the newspaper paid you for the photo.

Hope that makes it a little clearer.

Okay, but what if the business the photo is promoting is yours, the photographer.

That is still a commercial use...

In a related story told to me by an idiot... A friend of his is a wedding photographer in Ontario and used a picture from one of the weddings he shot on his storefront. Apparently the couple is suing him for the use of that photo....
I emphasize though the story was related to me by an idiot.

clemensphoto's · April 15, 2009

Clarification
First - thanks for all of the response.

Second, just to clarify I have been going to school sponsored events (not contracted) and take photos mainly of sports and then post them on my website for mainly parents to purchase. I also to freelance for one of our local newspapers where I get access to the fields, courts without any issue. The athletic director doesn't have any problems with me taking photos at the events. So there is no issue with that.

The problem is this; I was informed that since I am charging for the photos on my website that I need a model release from parents.

I have looked/search through DGrin and there is contradicting information on weather a model release is needed or not.

I just received a contract to take pictures of softball kids and I was asked if I was going to be taking action photos to sell to the parents. I informed the person that I was planning on this and the other photographer that was at the meeting that received the baseball contract stated that I would need a model release from the parents to do this. It was my interputation of the information that I have read that a release was not needed since the ball diamonds are on public property or that I have permission to take photos on private property.

Toshido · April 15, 2009

And who informed you of this?

you are likely to find that most people know nothing about photography laws. Just look at all the question posted here by photographers!

clemensphoto's · April 15, 2009

Just want to make sure that I don't get caught up in a legal situation that could be avoided.

Blaker · April 15, 2009

Toshido wrote:

Okay, but what if the business the photo is promoting is yours, the photographer.

That is still a commercial use...

Yup, and because it is for commercial use, you would still need a model release, just like I said in my previous post.

Blaker · April 15, 2009

clemensphoto's wrote:

First - thanks for all of the response.

Second, just to clarify I have been going to school sponsored events (not contracted) and take photos mainly of sports and then post them on my website for mainly parents to purchase. I also to freelance for one of our local newspapers where I get access to the fields, courts without any issue. The athletic director doesn't have any problems with me taking photos at the events. So there is no issue with that.

The problem is this; I was informed that since I am charging for the photos on my website that I need a model release from parents.

I have looked/search through DGrin and there is contradicting information on weather a model release is needed or not.

I just received a contract to take pictures of softball kids and I was asked if I was going to be taking action photos to sell to the parents. I informed the person that I was planning on this and the other photographer that was at the meeting that received the baseball contract stated that I would need a model release from the parents to do this. It was my interputation of the information that I have read that a release was not needed since the ball diamonds are on public property or that I have permission to take photos on private property.

Again, a model release has nothing to do with where you shot the photo, or whether or not you have permission from an athletic director.
A model release has everything to do with 'usage', in other words, it has to do with HOW the photo is used.
It doesn't matter where the photo was taken , or how many people gave you permission to take the photo, if you are using it for commercial use- such as advertising etc, then you need to get a written model release from the person who is in the photo (or their parent), and you need to keep it on file forever.
You do not need a model release to sell photos of school kids to their parents.
If you do a search, you can find sample model releases- there may even be a link to this in one of the stickies at the top of this forum.

Cygnus Studios · April 15, 2009

Blaker wrote:

Again, a model release has nothing to do with where you shot the photo, or whether or not you have permission from an athletic director.
A model release has everything to do with 'usage', in other words, it has to do with HOW the photo is used.
It doesn't matter where the photo was taken , or how many people gave you permission to take the photo, if you are using it for commercial use- such as advertising etc, then you need to get a written model release from the person who is in the photo (or their parent), and you need to keep it on file forever.
You do not need a model release to sell photos of school kids to their parents.
If you do a search, you can find sample model releases- there may even be a link to this in one of the stickies at the top of this forum.

You need to remember that a model release is NOT for the photographer. It is needed by the person using the photo.

Angelo · April 15, 2009

Cygnus Studios wrote:

You need to remember that a model release is NOT for the photographer. It is needed by the person using the photo.

Sorry, wrong!

The photog had BETTER make sure he has the release.

Angelo · April 15, 2009

clemensphoto's wrote:

Just want to make sure that I don't get caught up in a legal situation that could be avoided.

Then I strongly recommend you consult with an attorney rather than rely on potentially incorrect information provided on a blog.

clemensphoto's wrote:

I have looked/search through DGrin and there is contradicting information on weather a model release is needed or not.

Please look at the top of the MYOB forum page where you'll find a "sticky" thread for "Photographer's Resources" which include viable links to various legal issues for you.

.

catspaw · April 15, 2009

clemensphoto's wrote:

The problem is this; I was informed that since I am charging for the photos on my website that I need a model release from parents..

Just because 'someone' tells you this, you believe them?

Sorry, wrong!

The photog had BETTER make sure he has the release.

Sorry, but I'll have to disagree with this. There are definitely some situations where the photog is better off asking for a model release, but it's in the USE and PUBLISHING of the photo that the release is needed. So it depends if the photog is self-publishing or using it for advertising or selling it on to another party. Yes, the photog 'needs' them to make stock photography more marketable, but I don't believe that's the sort of question at hand.

Angelo · April 15, 2009

catspaw wrote:

Just because 'someone' tells you this, you believe them?

Sorry, but I'll have to disagree with this. There are definitely some situations where the photog is better off asking for a model release, but it's in the USE and PUBLISHING of the photo that the release is needed. So it depends if the photog is self-publishing or using it for advertising or selling it on to another party. Yes, the photog 'needs' them to make stock photography more marketable, but I don't believe that's the sort of question at hand.

you can disagree but this isn't as simple as you state. if a problem arises out of the publication of a photograph, for proprietary marketing purposes, I can assure you the photographer will be encumbered with a lawsuit regardless of who his client is, and the client will most probably be enjoined in the lawsuit.

absent a contract between the photographer and his third party client that specifically indemnifies the photographer with a hold-harmless clause from exposure to liability he remains vulnerable.

and such a clause in a contract would essentially establish a work-for-hire situation in which the photographer would relinquish copyright to his client. I would never do that. why would anyone?

it is always the safest bet for the photographer to have the model release and a second release by and for the client is double protection.

.

catspaw · April 15, 2009

Angelo wrote:

you can disagree but this isn't as simple as you state. if a problem arises out of the publication of a photograph, for proprietary marketing purposes, I can assure you the photographer will be encumbered with a lawsuit regardless of who his client is, and the client will most probably be enjoined in the lawsuit.

absent a contract between the photographer and his third party client that specifically indemnifies the photographer with a hold-harmless clause from exposure to liability he remains vulnerable.

and such a clause in a contract would essentially establish a work-for-hire situation in which the photographer would relinquish copyright to his client. I would never do that. why would anyone?

it is always the safest bet for the photographer to have the model release and a second release by and for the client is double protection.

.

Eh, excellent point. I've no idea why the entire 'lawsuit' aspect skipped my brain. I blame the fact it's tax day and I'm just about fried.

point to you

johng · April 17, 2009

Angelo wrote:

you can disagree but this isn't as simple as you state. if a problem arises out of the publication of a photograph, for proprietary marketing purposes, I can assure you the photographer will be encumbered with a lawsuit regardless of who his client is, and the client will most probably be enjoined in the lawsuit.

.

Actually it's not that complicated. It's all based on terms of sale - if terms of sale are for personal use with the photographer retaining copyright the purchaser has no legal right to use it for marketing purposes. The notion of event sports photographers obtaining model releases from every participant is unnecessary (most important) and completely impractical. I've honestly never run into a sports photographer that does this type of shooting that obtains a model release from every player on every team being covered. If someone uses your photo for such purposes without your permission they have violated your copyright. Now, if you can point to any case law where this occured and the photographer was held liable I will stand corrected. I've just never seen or heard of it.

A perfect example - you can buy a photo print from many newspapers. Those newspapers do not have signed model releases from every athlete protecting them from lawsuit. You have the same journalistic protection they do to take the photo and sell it.

NOTE: I am not a lawyer. This is only my opinion as a sports event photographer.

clemensphoto's · April 18, 2009

O.K.,

I have looked a few of the resources on the sticky that Angelo recommended. I guess the first thing is how reliable is information from Photo Attorney?

Within the articles posted I have found the following:

"Commercial use of a photograph usually occurs when the picture of the person has been used purely for "advertising purposes." While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use. Instead, using a picture of a person without consent gives rise to a claim for violating the person's right of publicity only when it injures the economic interests of the person due to commercial exploitation.

In sum, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial. But since it sometimes is difficult to know if the use will be considered commercial or editorial, it's always a safer to get the model release."

http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html

Also, this was also listed as well:

"In an affidavit submitted to the court on Mr. diCorcia's behalf, Peter Galassi, Chief Curator of Photography at the Museum of Modern Art, said, "If the law were to forbid artists to exhibit and sell photographs made in public places without the consent of all who might appear in those photographs, then artistic expression in the field of photography would suffer drastically. If such a ban were projected retroactively, it would rob the public of one of the most valuable traditions of our cultural inheritance."

The judge in the case dismissed the suit on First Amendment grounds that the possibility of these photographs is the price every person must pay for a society where information and opinion freely flows. While Nussenzweig is appealing, the good news is that photographers may continue to photograph people in public and may use those shots editorially without the subject's permission."

http://www.photoattorney.com/2006/03/editorial-use-of-persons-photograph-is.html

So, if I'm interrupting these article correctly from Photo Attorney then a photographer is not required to obtain a model release from the parents in order to sell pictures of their children online to the parents, family and friends?

Any ways, I plan on having a lawyer research this for me just in case so that I have any case law on this.

Blaker · April 18, 2009

clemensphoto's wrote:

So, if I'm interrupting these article correctly from Photo Attorney then a photographer is not required to obtain a model release from the parents in order to sell pictures of their children online to the parents, family and friends?

Correct.

(and I think you meant "interpreting" , not "interupting"!)

orljustin · April 19, 2009

For the Xth time, you don't need a model release to sell images to family and friends. Or even enemies.

Cygnus Studios · April 19, 2009

Angelo wrote:

Sorry, wrong!

The photog had BETTER make sure he has the release.

Yes the photographer will get drawn into the lawsuit, but there are no laws requiring the photographer to have a release signed.
Without the release, your options are very limited, but that is it.

Now I always recommend to everyone that they get the release whether they believe that they need one at the time or not.

Legal Issue

Comments