Legal Left, Meet Creative Right –Releases

    I’ll start this post off by saying something that has no basis in empirically proven fact: photographers feel guilty for enjoying their jobs and are therefore reluctant to ask for model releases because we feel like our subjects are already being generous enough by allowing us the opportunity do what we love.  This is just my opinion, but it’s something that I’d put money on if the bet ever came up (any takers?).  I think this is especially true the closer the work gets to pure documentary photojournalism because, at least in that setting, we’re asking for access with the idealistic front that the resulting pictures serve some sort of greater, editorial good.  Public education, moving people to act in a specific way, informing a particular issue, generating interest and empathy for a particular person, condition, movement, etc.  It lends itself to a strange sort of professional self-flagellation because the photographer is reluctant to admit that the food on their table is derived from the sale (or potential sale) of the pictures that are being shot.  In a perfect world, truth needs no ally and the photographer is rewarded in cherub kisses and adulation from the audience their work serves to educate.  

    I’m definitely not immune to this appeal to idealism and have personally struggled with the inherent taking that happens every time we press the shutter.  That said, I’m also open to the sentiment that, in a less-than-perfect world, truth sometimes needs help paying the mortgage and putting food on the table.

    With that sentiment in mind, I’d like to make the argument that when a photographer leaves their model releases at home, they’re serving a very short-sighted master.  The mistake of not bringing along your releases is, to me, not too much different from the crappy buyers and publications that ask their photographers to sign starvation-contracts: you get what you need in the short run, but there’s no long-term sustainability to it.  Because the photographer cannot sustain him or herself, their development and maturation as a shooter is undercut along with the greater value of their long-term contribution to Photography (capital P).  Or, said in a less wordy way, you can’t say you value photography and than do things to ensure that it is not a sustainable pursuit.

    That said, I’m getting a little bit ahead of myself by not explaining why model releases are important to the ability of a photographer to survive over time.  In short, a release serves two very important purposes:

    1. You’re offsetting your subject’s ability to successfully sue you.  

    2. You’re asking your subject to allow you to make a living using the images that you are shooting.  

    Both things are totally reasonable things to ask, right?  On the first count, the subject of your shoot is releasing you from various liabilities that arise under the structures of defamation and the recognized right to privacy.  (When I first started outlining this post, I had planned on breaking this stuff down but found that ASMP already has such a nice primer on all the different liabilities the release tries to offset that it’s just not worth it to reinvent that wheel.  Their series, along with the sample releases and the very relevant conversation about the relatively new idea of celebrity and the right to publicity, are available at the following link: http://asmp.org/tutorials/property-and-model-releases.html)  

    At any rate, these points are critical to the long-term survival of the photographer for some very simple reasons.  First, having the signed release in hand could be critical to giving you the means to defend a lawsuit or otherwise shut it down before it starts.  Second, and equally important, the ability to resell an image over and over again is the cornerstone of how photographers generate streams of revenue.  Without a release, an image is really only resalable for editorial use; with a release, the same image is a viable product in more profitable spectrum of commercial application.  And, having regular, long-term, sustainable sources of revenue is, without a doubt, how photographers support long-term projects, put food on their table, pay their mortgages, purchase insurance, and (if you’d ever want to put the camera down) support a retirement.

    Because I believe that being a photographer is a respectable profession, I treat the administrative aspects of my shoots with the same expectation that other professionals bring to their own practice.  Take a surgeon, for example.  Long before you make it to the surgical suite, the surgeon asks you to acknowledge the same two things that our releases ask of our subjects: the ability to make money from the procedure and a release from liability.  It’s a process that we’re so accustomed to that most of us would have trouble recalling the last release we signed or the content of the document; it’s part of our expectations from these kinds of transactions.  

    Building on the fact that releases are part of our social norm (how you feel about this is, of course, another question), my strategy for getting them signed is not rocket surgery.  I’ve got a clipboard with three kinds of release sorted into the stack.  Adult releases on the top, minor and property releases towards the bottom.  The clipboard goes on the car seat right under my camera.  With a few exceptions, I start my shoot by asking to get it filled out (for documentary work, it gives me the proper spelling of my subject’s name in their own handwriting).  Once I’ve got the completed form, I snap a photo of it for reference and start the shoot.  And, honestly, since I started doing that, I have felt so much more free as a photographer to approach my shoots without too much preliminary tiptoeing; after all, my subject has literally just acknowledged, with their signature, that it is ok to photograph them.  

    I’d love to hear other people’s thoughts on handling releases.  Particularly releases from subjects that are reluctant or stories about going back long after the fact to obtain a release.  Those two things are more of an art than anything and photographer’s personal approaches to this stuff is way more important than trying to figure out a hard and fast strategy.  Email or comments, your choice.  mattslaby@luceoimages.com


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    Matt Slaby is a Colorado-based attorney (and photographer). Matt attended the University of Denver College of Law on a full public interest scholarship. His experiences in law school include a PILG clerkship for ongoing civil work with El Centro Humanitario’s legal clinic as well as handling wage claims and contract issues for DU’s Civil Litigation Clinic. He is a founding member of Luceo and, in addition to his photography, brings his legal background to the organization. Questions, comments, and ideas for future posts are welcome. Please add them to the comments section or reach me here: mattslaby@luceoimages.com

     

    **DISCLAIMER: Luceo Images LLC and Matt Slaby assume no liability for the information provided above. This information may not be correct when applied to your specific situation. Moreover, the information provided is not intended to create an attorney/client relationship and shall not be construed as legal advice.