Personal Release Agreements
This section provides and discusses personal release agreements that permit the use of a person’s name and image. Personal releases are often referred to as “model releases,” although the term “model” can be used for anyone, not just professional models. There are two classes of personal releases: blanket releases and limited releases.
- A blanket release permits any use of the photographic image of the person signing the release and is suitable if the company or photographer needs an unlimited right to use the image. Stock photographers who sell their photos for unlimited purposes commonly use blanket releases.
- Celebrities and professional models usually sign limited releases that specify the particular ways their image and name may be used. If a use exceeds what’s permitted under the limited release, the person can sue for breach of the agreement. For example, a model that signed a release limiting use of her image for a museum brochure sued when the photo appeared on a Miami transit card.
General Rules for Releases
In addition to the specific legal rules for releases discussed throughout this chapter, some general advice is helpful when dealing with release situations.
Get It in Writing
Although oral releases are generally valid, you should always try to get a release in writing. This way, the model can’t claim he or she never agreed to the release. In addition, the terms of an oral release can be hard to remember and even harder to prove in court if a dispute arises.
Make It Clear
When a release is sought for a specific purpose, do not hide or misrepresent facts to get the signature. A fraudulently obtained release is invalid. For example, a model who was told that his image would be used by an insurance company signed a blanket release based on that statement. However, a company that pays cash for life insurance policies owned by AIDS victims used the photo. A Florida court permitted the model to sue.
Keep It Simple
Release agreements do not include many of the legal provisions found in other agreements in this book. Instead, releases are usually “stripped down” to pose less likelihood of triggering a discussion or negotiation. Keep your release short and simple (see tip below).
You may find it easier to obtain a signed release if you shrink the release information to the size of a 3x5 or 5x7 card. Photographers have found that photo subjects find the smaller documents less intimidating. Some photographers reduce the material to a font size that fits on the back of a business card. However, if the contract is difficult to read, it will be less likely to be enforceable.
Get the Right Signatures
There are two requirements for the signature on a release: it must be “informed consent,” which means that the person signing the release understood it; and the person signing the release must have the authority to grant the release.
In the majority of states, a minor is any person under 18 years of age, although in some states, the age may be 19 or 21. Since a minor may not understand the terms of a release, the signature of a parent or guardian is required before using a minor’s name or image.
EXAMPLE: A 16-year old boy who was photographed on the beach at Cape Canaveral signed a release; his parents did not. The photo was later used on the cover of a novel about a gay adolescent. His father sued the publisher and settled out of court.
In some cases, an agent representing the person may have the authority to sign a release. For example, an agent signed a release granting an unlimited time period for use of a model’s image in a Nintendo advertisement. The model had intended that the image only be used for one year. A court held that the agent had the authority to sign the release on behalf of the model and the release was binding.
It is always preferable to have a release signed by the subject, not an agent. When dealing with an agent, seek an assurance that the agent has the legal authority to sign. This can be done by including the statement, “I am the authorized agent for [name of model]” above the agent’s signature line.
Get a release signed ASAP. It is sometimes difficult to track down a subject after a photo has been taken and there is less incentive for the subject to sign a release. Therefore, most photographers obtain releases prior to or directly after a photo session or when the model is paid.
Dear Rich: I work for a nonprofit and my board members are obsessed with getting photo releases -- but as they don’t have a good one and they often want to photograph events with LOTS of people -- they refrain from taking photos at all. I was under the impression that unless a photo was going to be sold, no release was needed. Is there a guideline that will enlighten both myself and my board about when photos and video that will be used for things like social media and newsletters require releases from their subjects? I am afraid this question is going to lead to an “it varies from state to state” answer.
Actually, the answer doesn’t vary from state to state (and in any case the Dear Rich Staff would never do you like that!).
You need a release if … A properly drafted release basically shields you from lawsuits over two things: (1) you’re using someone’s image to sell or endorse something; or (2) using the image in a way that harms the person -- it invades the person’s privacy or defames the person or otherwise gets them so upset that they call a lawyer and go after the publisher of the photo and sometimes the photographer.
You do not need a release if … You do not need a release to use a person’s name or image for informational purposes. An informational (or “editorial”) purpose is anything that informs, educates, or expresses opinions protected as freedom of speech. So if you have a section of your website such as “About Our Members” or you include the images in your nonprofit newsletter -- for example, “Members Protest Disney World Mouse Exploitation” -- then you wouldn’t need a release.
Finally … although it doesn’t have the full legal punch of a release, you can always prominently post your photo policy at group gatherings—a statement such as “We’ll be taking photos at our event and posting them at our website. If you don’t wish to be included, please inform the photographer.”
Consideration: Paying for a Release
A contract is legally binding only if each party obtains something of value (referred to as “consideration”) in return for performance of the contract obligations. For this reason, releases traditionally stipulated payment of a nominal amount such as one dollar. However, most courts now take a modern approach to contract law and accept the fact that consideration can be implied and an actual payment is not mandatory. Each release in this chapter establishes that the contract has met the consideration requirement by beginning with the statement, “For consideration that I acknowledge…” However, to fortify this position, you may wish to make a payment -- even if nominal -- to the person signing the release and indicate the amount of the payment somewhere in the release.
Unlimited Personal Release Agreement
The following form is an unlimited or blanket release agreement. It permits you to use the model’s image and name in all forms of media throughout the world forever.
A digital version of this form is included on the forms CD.
Dear Rich: I’m a graphic artist with over 30 years professional experience. Now, I am creating a series of original golf images, in my personal style, to sell as limited-edition prints. Some of these images depict famous players but they are not depicted in recognizable events (derived partially from my visual memory abilities and also from sketches made from the TV). I am concerned about being sued by the golfer(s) for rights to publicity … even despite the fact I am aware that a while ago a very famous golfer’s agents sued a sports artist for selling prints of the artist’s painting depicting that famous golfer, and lost … essentially due to the ruling determining the athlete’s right to publicity did not trump the artist’s First Amendment rights. Is this good news? Or for every ruling like this, are there just as many that have gone against the artist? Does it matter that, in part, I am painting a known golfer’s image based on my sketches from the TV, which is a “publicly viewable” situation? I know the famous golfer believes that people are buying the art print solely because of his image, but what if the person is buying it primarily because of the quality of the artwork? Also, famous golf courses like the Pebble Beach
Golf Links (Monterey Peninsula in California) have trademarks on their property/business names. If I create a painting that is merely suggestive of that course’s famous holes, but is not actually a factual view … and if their trademark encompasses the phrase “PEBBLE BEACH,” can I use the term “PEBBLE”? In other words, are there infringement issues for implying an actual place?
We hope we can answer all your questions before our Stash green tea high wears off. Yes, you are correct -- a painter created images of famous golfers including Eldrick “Tiger” Woods, and then sold the prints. Woods’s licensing people sued and lost.
Why did Tiger lose? The Sixth Circuit believed that the First Amendment trumped the right of publicity. A similar ruling happened in a case involving a painting of a famous sports scene from Alabama football history. These are great cases for painters, and we want all artists to exploit their First Amendment rights (no matter how dopey that can sometimes be). But our takeaway points should also include the fact that both cases took almost four years from filing to final gavel. So, like Clint says, you have to ask yourself, “Do you feel lucky?"
Limited Personal Release Agreement
The following form is a limited personal release agreement. It allows you to use the model’s name or image only for the purposes specified in the agreement.
A digital version of this form is included on the forms CD.
Explanation for Limited and Unlimited Personal Releases
- The Grant section establishes the rights granted by the person. In the unlimited agreement, a “blanket” grant is used. This grant is broad and intended to encompass all potential uses, whether informational, commercial, or other. In the limited agreement, the uses must be listed—for example, “For use on the cover of trade book and for related advertisements.” This release also has limitations regarding territory and term. Insert the appropriate geographic region and term—for example, “North America for a period of two years.”
- The Release section is the person’s promise not to sue the company for legal claims such as libel and invasion of privacy.
- If the person is a minor, the parent or guardian should sign where it is marked Parent/Guardian Consent. Since issues about release authenticity often crop up many years after a photo was made, a witness should sign the agreement to verify the person’s signature or the signature of the parent. The witness should be an adult. An employee or assistant is suitable.