As more and more amateurs supply images for marketing – particularly “candid, real life” images – there may be an increased risk of images without proper releases getting used. Some agencies – and maybe even customers -- are also becoming more lax in checking whether valid releases exist. While many agencies require that a release be submitted with all people images, not all do.
The Digital Media Licensing Association (
DMLA) has just released a very good vimeo video that deals with
Sensitive Subject Releases. They also have another video in their archive entitled
Releases: When Do You Need Them? Both are very helpful on the general topic of releases here in the U.S.
In some cases, U.S. laws vary from state to state. Overseas laws can vary as well. But, as the world gets smaller and more and more of the images used in the U.S. are being created by photographers who live overseas, all image creators need to be aware of the risks.
Recently, I published a story about an image that was created as the result of an ImageBrief request and used worldwide in a
Delta Airlines campaign. When I questioned Simon Moss as to whether there was a release for the image he said, “In this particular shot, where it is shot from behind, one could argue that the lady in the image could actually be anyone and therefore wouldn't require a model release.”
According to attorney Nancy Wolff, DMLA Counsel, when it comes to the right-of-privacy and the right to control the use of an image of oneself there are two different standards that are used in different states. “Can a reasonable personal recognize you” or “Can you recognize yourself.” In the case of the woman in the
blog post, I think she could recognize herself. Hopefully, she is not a New York model used to getting paid for posing for pictures.
Points Made In The Videos
In order to meet the standard of editorial use the image must illustrate some factual point of the article. Context is everything. A picture on the cover of a book is considered editorial use if the book is about the individual. But, if the book is fiction and there is no relation between the model and the subject of the book, a release would be required.
If the picture is used in an advertorial, within an editorial publication, it does not necessarily qualify for an editorial exemption.
When we get to the Internet there aren’t clear directions on where the line is between advertorial and editorial.
When it comes to large crowds, with a lot of backs of heads and most of the people slightly fuzzy releases are not needed. But, if there is a focus on a few people releases of those individuals may be needed. Also remember that a client may be able to crop and zoom in on just those people who are in focus.
Normally, releases are not needed for animals, but if it is a famous or recognizable animal like a race horse a property release may be needed.
Body parts may not require releases, but if it is a recognizable body part like a tattoo a release may be required. A release was required for a picture of Buzz Aldrin in a space suit on the moon, even though his face could not be seen, because Neil Armstrong was reflected in his helmet visor.
Pictures in front of graffiti or outdoor murals are a risk if the graffiti artist happens to be well known. The artist may have copyrighted the work.
Other useful reports for stock agencies, as well as individual creators, can be found at the
DMLA Document Library. Many of these reports are only available to DMLA members, but some can be accessed by non-members.