Burden of proof

(Disclaimer: I do not contend to know the law surrounding every aspect of photography in its nuanced entirety. The information below is my understanding of it and should not be taken as definitive legal advice.)

During a class this weekend I had a student ask about using/posting/selling pictures that have people in them; and the potential legal ramifications that can arise from it. While still largely untested, the general rule of thumb is this: If you don’t have a signed model release, you don’t have permission to sell the image for commercial purposes.

But it’s a little more complicated than that. In the US and Canada, you can use images taken in public places with people clearly visible for the purpose of photojournalism or Art. However, you wouldn’t be able to sell it on, say, a stock photography site, without a model release signed by each individual in the image. The reason for this is that you can’t control how the end user/purchaser will use that image. If it is used to promote or sell a product, and you haven’t gotten permission from the person(s) visible in the image, then it could certainly cause some issues. This is why stock photography agencies require a model release for any image that contains people. Here is how istockphoto outlines it:

‘ Ask yourself this: “Could any of these people depicted recognize themselves in this picture?“ If so, you will need a model release. Sometimes the context of an image is enough to make a person recognizable, even if their face isn’t visible.’

This requirement also stretches beyond stock photo sites. Most (if not all) photo contests require a model release in order to enter an image into competition. The reason here is quite simple. If that image ends up in the top of the heap of submissions, the organizer will more than likely print it and/or use it for promotional purposes, all for which you would ultimately need a model release.

Here is a real life example… During an eSession last year, we were on a boardwalk taking pictures of the couple on a bench when a group of officers walked by on foot patrol. Inspiration struck, and we asked one of the officers if they would pose and pretend to write the couple a ticket while they made out on the bench. Caught up in the moment (or perhaps subconsciously not wanting to push my luck), I didn’t think to ask the officer to sign a release form, even though I felt we had potentially captured something unique and special. Even though the officer’s face isn’t visible, because I didn’t get a release signed, I’m unable to submit the image below for consideration in contests.

No model release. No contest submission.

No model release. No right to sell (commercially) or submit to contests.

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