By Kathryn Wagner
Kathryn Wagner Photography
ASMP Colorado marketing chair
As the owner of a photography or other service-oriented business, you must do all you can to maintain and manage professional relationships.
It’s essential everyone involved clearly understands your goals for a photograph. How that picture will be used is only part of the equation. You also must ensure you have written consent to reproduce for commercial purposes the likeness of an image’s subject. Such permission should be clearly stated in a legal document, called a “release.”
The best practice for a commercial photographer is to have on hand a collection of releases for the various situations you encounter. I am a photographer, not a lawyer. But I have crafted and used releases regularly. With this article, I want to help you on your road to success.
Your business’ best resource when establishing a set of releases is a legal expert reviewing and approving your documents. A lawyer can help you rest easy by ensuring your business and its creative assets are set up for the jurisdiction in which you operate. Moreover, having an established relationship with a legal professional may prove invaluable should you find yourself making pictures in a different locality. A consultation with your attorney will help ensure your images have the right permissions from the right people.
There are several standard types of releases commonly employed by creative services. Having such forms signed and filed is vital to ensuring your wonderful, creative images have long and happy lives being used and repurposed. This rings true for image use well beyond that initially licensed by your commissioning client. It’s also important when shooting for an editorial outlet, as having a release allows you to license the picture in the future for a commercial purpose.
There are many types of releases, and each has a specific use. We will focus on the two key types that photographers typically encounter: model releases and minor releases for children under age 18. For pictures depicting private property, particularly unique buildings, you may also need property releases.
Leslie Burns (https://www.burnstheattorney.com/), a licensed attorney and former photographers’ agent in California whose practice focuses on professional photographers, says releases should be part of your workflow. Leslie has these points to consider when thinking about releases:
“Model/talent releases are often misunderstood. Technically, to make a photo, you never need a release. I know you’re thinking I’m nuts, but that is actually what the law says. See, a release has nothing to do with the creation of the photograph. It’s about the use of the photo, and more specifically, the use of the likeness of the person(s) in the photo. If the photo is going to be used commercially, then the person or entity using the image will need a release.
“For example,” Burns continues, “the photographer makes a photo of a and licenses it to Bob’s Mufflers to use on its website. The person in the photo could successfully sue Bob’s Mufflers for using their likeness to promote the business. The trouble is the person could also sue the photographer for the same thing, and even though they would not have a legitimate claim against the photographer, who wants to go through that? A release would function very much like a get-out-of-jail-free card in that situation. So I encourage photographers to get their own releases signed by anyone they shoot, just to cover their butts. That same release will also help Bob’s Mufflers, by the way, and that is good client relations.
“One thing that photographers should include in their releases today is a copyright assignment clause,” Burns says, “especially if they shoot motion. Although it is unlikely, it is possible that a model will try to make a claim of co-authorship, and thus, co-ownership of the photos/video. Having the assignment of copyright clause, where the model/talent assigns any of their copyrights in the works produced to the photographer, will prevent any such claim.
“Property releases, luckily, can be mostly ignored as they are almost never needed.”
See Burns’ article on property releases here for more on those.
If you need a few examples of what a well-thought-out release form contains, ASMP has you covered. ASMP Academy is a new initiative launched in October and spearheaded by Thomas Maddrey, ASMP’s general counsel and head of national content and education. ASMP Academy features an incredible document library with six downloadable and customizable templates to help you understand a typical release. ASMP members have access to the full document library, a great resource for new and seasoned photographers.
So, when you head out the door for your next project, be sure to include a few release forms with your camera kit. Getting a release is not only a business best practice, doing so also allows all types of image use in the future.