Although the need for a release is ultimately determined by how the image is used, model & property releases have become commonplace in the stock photography world irrespective of end usage — particularly with the large stock houses, which often have indemnification clauses with their customers.
The laws concerning model and property releases and stock photos are confusing and vary wildly from place to place. Stock agencies often set their own policies regarding releases that in many cases are stricter than the laws themselves.
Only a lawyer can tell you whether or not a model and/or property release is actually required for your images. However, it is strongly recommended for photographers to obtain releases whenever possible.
Many major buyers will not even consider an image that is not model released. Advertising agencies, in particular, will categorically refuse to view non-released images. This can be a major impediment to generating revenue because commercial usage can frequently run into the thousands of dollars. A release also offers you legal security as a photographer.
The following guidelines do not constitute legal advice, but can serve as an educational starting point.
The right to privacy gives everyone the right to live a private life. Although a person in a public venue is fair game to photograph, people can reasonably expect not to be photographed in private areas against their will. Similarly, a model release therefore asserts that the photographer had permission to take a particular picture, and that the subject has consented to their likeness being sold as stock.
In addition, models can request that the picture not be used in certain contexts (such as to promote cigarettes or prescription drugs) through the model release.
What is the point of a property release?
The legal support for a property is practically non-existent, yet the practice of obtaining releases has become commonplace in our ever-litigious society. So we encourage you to obtain a property release — particularly when you are on private property while shooting. For a legal opinion, check out the PhotoAttorney’s thoughts.
Please note that in this case property refers to buildings, land, and potentially any other private property and possessions, including pets.
Why do stock sites require model and property releases?
Stock sites require releases partially to protect themselves from a lawsuit should a legal dispute arise, but mainly for the convenience of the buyer. Commercial image buyers are careful and often require releases for all their projects.
There have been a number of legal cases where models have successfully sued buyers and photographers over images taken or sold without their permission. Some of the more famous cases in recent memory have involved inappropriate commercial use of Flickr users’ personal photographs.
Property release issues do not have such clear-cut precedents, but buyers still don’t want to open themselves up to any risk, and most are very careful to use only released images for advertising or other commercial usages – especially if a property is famous or immediately recognizable.
So, while there is a legal justification for model releases, the more significant reason from a photographer’s perspective is that a release increases the earning potential of a stock image.
How do I know whether or not I need a release?
Again, local laws and stock site guidelines vary. Some stock sites only require a model release if the people in the picture could be identified by themselves or someone who knows them well – while other sites require a model release if people appear in the picture at all, even if it is just a body part.
Property releases are generally required for private homes and other privately-owned buildings and land. Some stock sites might require property releases for other forms of property as well, such as animals, vehicles, and personal possessions. In general, both stock houses and image buyers tend to be less concerned about property releases.
Pricing and Usage
The intended usage determines whether or not an image requires a release. Please note that on most stock sites, you do not need a release for images that are limited to editorial usage only. However, images for commercial usage, whether they are priced rights-managed or royalty-free, require a release.
In fact, some sites will not license images for commercial usage at all without the necessary releases, or without first negotiating with the buyer.
If you intend to license an image as editorial-only, you do not need a release. This has a basis in case law.
Most stock sites require a model release if the people in the image are identifiable. Keep in mind some sites need a release for all people in an image, even for body parts.
How can I tell if someone is identifiable?
Laws and stock photo sites differ in their criteria for judging identifiability. In some cases, a subject is considered identifiable only if they can be recognized by someone who knows them, but not particularly well, such as a neighbor or acquaintance. On the stricter side are sites who consider a subject to be identifiable if they can be recognized by a close friend or family member. Some stock sites and buyers are even stricter, and consider a person identifiable if they would be able to recognize themselves.
In general, the following guidelines apply:
- The subject of an image does not need to be famous in order to be considered identifiable. The subject does not have to live in a developed, westernized country to be considered identifiable.
- If you can see the subject’s face, they are definitely recognizable. Even if the face is partially covered, it is very often still possible to identify the person.
- Even if the person’s face is fully obscured or they have their back turned, they might still be identifiable because of the context.
- People can also sometimes be recognized because they have unusual characteristics, such as tattoos, birthmarks, or very unusual clothing.
- Although it is usually impossible to obtain a model release for each person in a crowd, crowd scenes often include many identifiable people.
Special note on nudity
Stock agencies are often very careful about nudity because laws concerning underage nudity are very strict. If your image contains nudity (exposure of genitals, breasts or buttocks), you will likely need a model release, with proof of the model’s age, even if the model is not identifiable.
The following examples are intended to be guidelines only, of how stock sites might determine when releases are necessary for sale on their site.
Model Release Examples
Sometimes, the subject’s face can be blurred to the point where they are no longer identifiable, and a model release may or may not be necessary depending on the particular stock site. PhotoShelter would still require a release for this image.
Regardless of whether or not the subject is identifiable, some stock sites might require a model release for all silhouettes. The man in this image is not identifiable, and PhotoShelter would not require a release.
Even if a subject’s face is not visible at all, they may have other distinguishing characteristics that make them identifiable, such as tattoos and birthmarks. PhotoShelter requires a release for this image.
Property Release Examples
Images that feature many private homes or buildings do not generally require a release, since the focus is not on any one particular building. However, identifiying details such as street names and house numbers should not be visible. (PhotoShelter will accept without a release)