From: Elizabeth Masoner
Actually, I work for part of the New York Times and while the newspaper
itself doesn't use model releases all the time - magazines and online
properties owned by NYT that aren't news outlets MUST have model releases.
You need a model release for commercial use. You do not need a model
release for editorial use. Using a photograph in paid advertising to
sell a product is commercial use.
Even newspapers have been successfully sued when photos are released with
inflammatory and inaccurate captions (such as a person sitting on a park
bench with a caption about bums sleeping in parks).
The issue in that case is not the lack of a model release.
The issue is an inaccurate caption that portrays a person negatively in
a false light. There is no question of the photographer's right to take
the photograph or to have it published; it's a question of the editor's
responsibility to NOT use a photograph to defame a person.
In the US (it does vary from country to country), you need a model release
(and technically a property release) for almost every photo. Now, in
practice, photographers are rarely sued (or even asked to take photos down)
when they are published in galleries or personal blogs. The issues usually
arise when photos are sold and published in magazines or other public
consumption publications (advertisements for example).
You do not need a model release OR a property release for non-commercial
use of any photograph taken in or from a public place.
"Non-commercial use" means you are not using the photograph to sell a
product - you can sell copies of the image, you can sell prints, you can
publish the image on the internet, you can sell the image to a newspaper
or magazine, you can sell the image to a publisher to include in a book.
There are some limitations for trademarked materials, e.g. the HOLLYWOOD
sign, or that pine tree out on some golf course.
That includes photographs of celebrities - the main key is whether the
value of the photo is due solely to the celebrity of the subject. E.g.
if you take a photo of a person looking out at the Grand Canyon, it
doesn't matter if the person viewing the canyon is a celebrity or not,
as long as the "story" the photo tells is about the Grand Canyon.
Or if the celebrity is engaged in some public, newsworthy behavior like
a movie star making a speech for a political candidate. You think People
Magazine and National Enquirer get a model release for every photo they
publish?
You only have to have a model release if you are using the photograph to
sell products. You need a model release to use the image to sell soap on
TV.
Actually, *YOU* don't need a release.
The advertiser needs the release. If you don't have a release and they
buy the image and use it anyway, THEY are liable. You are liable if you
lie to them and tell them you have a release when you don't have one,
but not if you tell them up front you do not have a release. They assume
the liability in that case.
[They are not going to assume that liability, they just won't buy the
photo unless you can provide the release.]
"Public place" means any location that is open to access by the general
public that does not require the photographer to trespass in order to
enter. That includes malls, retails stores, banks, and the lobbies of
office buildings. On private property, private security can tell you to
STOP. If you are on public property, private security can NOT tell you
to stop.
Sometimes you can explain what you're doing and show them the
Photographer's Rights pamphlet and they'll grudgingly leave you alone.
It helps if you have a photo ID that indicates you are PRESS (even if
it's an ID indicating that you are a "freelance" photojournalist).
Most companies are sensitive about dealing with the PRESS. They do not
want to see news stories about their minions roughing up reporters, and
security guards are aware of this.
http://www.krages.com/ThePhotographersRight.pdf
If they tell you to stop taking photos, you stop. They cannot lawfully
do anything further beyond that than tell you to leave, which you should
do.
IF they want to take your film, your memory card or force you to erase
your photos, you DO NOT have to let them take them.
If they attempt to forcibly take your property, THEY are committing a
crime - theft, & possibly assault. You will also at that point have a
tort against their employer.
Explain that as calmly & non-confrontationally as possible, and they'll
usually back off. Make it clear that they are creating an incident that
will result in negative publicity for their employer, and be clear in
expressing your firm intention to file criminal charges if necessary and
to sue their employer if they use unlawful force against you.
The photographers rights are your RIGHTS AS A CITIZEN. You do not
forfeit your rights as a citizen just because you have a camera in your
hand. Anything you can lawfully see, anywhere you could lawfully go
without a camera in your hand, you can photograph.
Photography is a lawful occupation and you can pursue any lawful
occupation within any public space.
Sometimes you have to take a vocal, affirmative stand to protect your
rights, because there are many, many assholes out there who want to take
your rights away from you.
The majority are just plain vanilla stupid authoritarian pricks,
convinced they have a superior right to tell other people what can and
can't do; pricks so narrow minded they can't conceive that others may
wish to do something they're too stupid to figure out ... something like
taking photographs in a public location.
It's the mindset of "Anything that is not mandatory is prohibited."
The people who keep telling you that you have to have a model/property
release for every photo you take in public ARE FOOLS!
But the bigger fool is the one who meekly allows authoritarian assholes
to trample their rights without a word of demur.
http://www.andrewkantor.com/useful/Legal-Rights-of-Photographers.pdf
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