Here's a variation on the portrait portfolio model release question. Let's suppose I'm exhibiting some of my photos at a local gallery, cafe, or place of business. Now among those photos are a few street shots sans model releases. Could I exhibit these photos but not offer them for sell *while* I offer other photos for sale - or is this some suble form of advertising? By the way, I live in California.

-- Christopher Hargens (ldmr@cruzio.com), January 06, 2000

Answers

My understanding on something like you describe is you can hang the photos up anywhere to be looked at but when a release comes into consideration is when you sell the photo as art. Photos of people, except the crowd scene thing, sold as art need releases. Published photos used for information, news or editorial purposes do not need a release.

-- Joe Cole (jcole@apha.com), January 06, 2000.

I've been doing a bit more searching on the Web and I've seen some posts that state that if a candid street shot is taken in a public place and does not a violate the "shootee's" privacy, then it can be sold as "fine art" (i.e., "limited edition prints") or used for editorial purposes. I also recall having read this somewhere else in a book on stock photography. If this were the case, then such photos could not be used for stock without a release (which isn't what I'd be aiming for in any case). I should point out that I *will* consult a book to get a final answer to this question, but it surprises me how much disagreement there is on this issue.

-- Christopher Hargens (ldmr@cruzio.com), January 06, 2000.

Hi Christopher,

The disagreement on this issue is because laws are different between countries or even states of the US. For example, Joe Coles's posting above, while perhaps true for where he lives is very different from the Australian position. People on this forum chime in with their understanding of the issue as if it were absolute. Unfortunately it is not. If you really want to be certain about when a release is required you should talk to someone who can research Californian or US federal law.

I've been trying to do some research this morning but for some reason the legal search engine I use is down. If you want to search, I think there is an American service called FindLaw. I think.

Unfortunately you won't get a definite answer from the postings here, unless someone knows your law. I've done my own research on the Australian position and can be reasonably satisfied as to the pitfalls here. My only advantage is that I know where to look.

Getting back to privacy - in some places you can breach the right to privacy without any proof of damage. The right is absolute. But look, you'll only get sued if you have money, so transfer your assets into your partner's name, file for bankruptcy and shoot away with impunity!

I don't think that putting pictures up in a cafe is advertising. I am not sure why there should be a distinction between offering photos for sale and just displaying them.

But before everyone gets paranoid and goes out armed with a batch of model releases (and remember, you might even need a property release!), it might be worthwile to see if there has been any litigation on the matter in your place. If you find a dozen cases over the last 20 years, be careful. I know of no such litigation in Australia or elsewhere apart from a particularly nasty, weighty and vindictive Canadian case.

Tim

-- Tim Bolotnikoff (Timothy_Bolotnikoff@justice.qld.gov.au), January 06, 2000.

In the context of model releases, 'advertising' means 'using the photograph to advertise a product, service, etc', such as selling a photo of a person drinking a soft drink for the purpose of advertising that soft drink. It doesn't mean using the photograph to advertise the fact that it (or another photo) is for sale.

In many contries, including the UK, you are allowed to do anything that isn't disallowed. Of course, this also allows anyone to sue you over anything, but the question is always: would they succeed?

In the UK, I have never heard of a successful case of anyone being successfully sued by the subject for merely showing or selling prints, or even publishing photos in an editorial context, that weren't libellous/defamatory/whatever. That isn't to say that it has never happened, or that it couldn't happen.

When you publish a photo, the publisher may require you to produce a model release. This isn't because there is a legal need for a release, but to give the publisher an indication that he/she can't be sued by the subject. In other words, it is often the publisher, rather than the law, that requires a release. You might find that the gallery owner will require a release.

As always: I am not a lawyer, in the UK or anywhere else. My free advice is worth what you pay for it.

-- Alan Gibson (Alan.Gibson@technologist.com), January 06, 2000.

I agree with Alan - it is often the publisher who requires a release. I remember seeing US magazines soliciting photographs with specific instructions to provide a release. No such thing appears in Australian or NZ publications. And yes, anyone can get sued but insane litigation occurs when there's a whiff of money and lawyers act on spec. Not here, thank God, not here.

UK position is probably similar to Australia's (a guess only!). The massive UK encyclopaedia of legal forms and precedents has standard model releases in it - but only for advertising.

-- Tim (Timothy_Bolotnikoff@justice.qld.gov.au), January 06, 2000.

I recall a case in the U.S. about ten years ago in which Newsweek wanted to run an article on African-Americans moving up in the business and economic world. They had a photographer go out and shoot a well-dressed black businessman, briefcase in hand, on the streets of New York City, and they ran the shot on the cover. Both Newsweek and the photographer were successfully sued by the businessman on the basis that they used the photograph without his permission to illustrate an article that he particularly disagreed with. He was not aware that he was being photographed, and the photographer did not get a release from him, assuming that since he was in a public place there would be no need.

-- (edbuffaloe@unblinkingeye.com), January 07, 2000.

Hello Ed,

I believe the case you are referring to is a good example of where the text that accompanies a photo either directly or indirectly attributes something to the person in the photo without that person's authorization.

-- Chirstopher Hargens (ldmr@cruzio.com), January 07, 2000.