There is quite a bit of confusion these days over copyrights, usage, model releases and contracts between photographers and models. I thought a little blog post about it would be in order to help clear the air and make sense of the law concerning these issues.

The scenario here assumes that the photographer is taking the pictures himself and he works for himself as in not getting a pay check from someone else to take pictures (“work for hire”). The model is posing for the photographer for the purpose of him capturing images and who pays who doesn’t matter. The model is recognizable in the photos.

 

Copyright

According to US law, a copyright is “who owns the photo” or who owns the right to copy, distribute or publish the photo. You own a photo just like you own a nic-nac. You get to say who can look at it and who can touch it and who can use it. With a few exceptions, a photographer can do whatever he wants with it.

When a person creates a work, as in when a photographer clicks the shutter, he immediately becomes the owner of the photo and he alone is the owner. The model who is in the photo is not the owner and has no right to use, have or own the photo of her likeness. That is the law. If your pretty face is in the picture, you have to ask permission from the photographer to use the photo. He doesn’t have to give you permission. You are given permission in a Usage License.

 

Usage License

The reason models are allowed to use their images in their ports, on myspace or on the living room wall is because the photographer gave the model a Usage License. In other words, the photographer gave the model permission to have her own likeness in that photo where ever specified. It may be her face, but it is not her picture.

Think of it this way: if a photographer takes a picture of his neighbors house, he doesn’t magically own the house now but he does own the picture. If the neighbor likes the picture and wants it, the photographer has to give the neighbor the picture and tell him it is OK to use it. Just because his house is in your photo, he can’t demand you give him the photo.

A usage license can be in writing or verbal, in an email or mentioned casually over coffee. A usage license says “I the photographer own the image and give you the model permission to use it in thisway”. A photographer does not need to sign the usage license if it is in writing.

 

Model Release

A Model Release is different from a Copyright and a Usage License. Each item has a distinct reason for existing and a distinct application in our photo shoot here. The photographer already owns the photo but can’t necessarily do certain things with it yet. That is what the model release does. A photographer already has the right to use the photo for his personal use and some public use like editorial or educational use plus other uses a state might give him (or not restrict him from) like selling it as art. The model release gives the photographer additional rights to use the photo.

What a photographer can do without a model release varies from state to state depending on how or if applicable state laws are written. A photographer might even be able to print and distribute the photo without a model release. The principles are “The right to privacy” and “The right to publicity”. A particular state can use one or both terms and they can mean the same thing or different things.

The state of Nevada requires a photographer to get a model release when the photo is used for commercial purposes. What is considered commercial use? Commercial use is when the photographer is making money off of the photo in a particular way. A photographer can use your image on a business card or web site without a model release even though he is making money off of the business from handing out the card or having the web site (The photo he took is on his own site or promo material). A photographer can sell prints of the photograph in a gallery (either on-line or brick and mortar) without a model release (Art). Selling or giving away an image for use in a newspaper article is also noncommercial, as is using it for educational purposes.

Now, when the use moves away from personal use or art, or educational and editorial uses, then a new set of rules come into play. Selling the images to a stock photography web site is commercial so a model release is needed. So is selling the images to a pay site. Selling the images to be used in a magazine ad or in a mens magazine is commercial as well and needs the model release. This is because the photographer no longer controls the distribution of the image. The distribution is in the hands of a third party. Heavily photo shopping the photo and turning it into something else makes it a “derivative work” and it possibly does not need a model release anymore, depending on if the model is readily recognizable or not.

A model does need to sign the model release for it to be effective.

 

Performance Contract

A performance contract specifies who is going to do what, when. For instance: You agree to model for me for free, TF, pay or whatever and I agree to give you a CD with 5 images on it for your port. A performance contract can be anything you make it. A performance contract can be verbal or written and it is often included in a model release form along with a usage license. This three in one form is convenient and also confusing.

It is convenient because it can be printed on one page and confusing because people start to think of a model release as containing all of these elements. The title of the form in this case should say something like “Model Release and Usage License for Model to be in Media” and have a section that says “For good and valuable consideration… bla bla bla…” to cover the performance contract part.

 

To wrap it up, you have four elements to consider when you discuss moving the image off of the camera. For models, read the documents given to you by the photographer and discuss items you can’t understand. Be clear with your expectations for use and keep to your agreement. If the only thing you are allowed to do with your image is post it on a modeling portfolio site, then only do that. If you want to do more, then modify the usage license.

 

NOTICE: I am not an attorney. This blog post is not legal advice. This blog post is my opinion and should not be solely relied on for guidance in your actions as a model or photographer. Consult an attorney for legal advice for your particular situation or area. This blog post was updated 03/05/2010 to update wording of derivative works comments.