Best Business Practices for Photographers [171]
Figure 18.8
The page with the infringed images can no longer be found.
You must be extremely vigilant in protecting your copyright. Unfortunately, sending out DMCA takedown notices will have to happen more often, not less.
Chapter 19 Releases: Model, Property, and Others
What is a release? A release, whether model, property, trademark, or any other type, is a legal instrument (whether written, audio, or video) that, once executed, terminates or transfers liability between the parties involved in the document, to the extent documented in the release. For the purposes of photography, we call the photographer the releasee and the subject photographed the releasor. But, is it that simple?
In cases of children, they are not allowed to engage in legal contracts such as releases, so a parent or legal guardian must sign a minor release. In instances where the subject being photographed is an item that is property—whether a house, a particularly unique tree on private property, a custom car, or even an animal—a different release called a property release is the legal instrument that applies.
Next to no one will believe a verbal release, and its standing in court is highly suspect because of the biased nature of the releasor. While I could swear on a stack of Bibles, "That man said I could take his picture and he didn't care what I did with it, and he gave me his permission to use it for X," I have an incentive to lie, and if "that man" came forth later and said, "I never said that," it would be his word against mine. However, if I have several people who are unrelated to me and do not have an incentive to lie, and they heard the statement of "that man," these witnesses could serve to validate my (potentially) biased statement. In a few states—California, Florida, Nebraska, Oklahoma, Tennessee, Utah, and Washington (state)—a verbal granting of permission is permissible, but in my opinion, it is something to strongly avoid.
Other legal instruments could be an audio or video recorded statement, such as, "My name is Jane Doe, and I hereby waive all right to review the photographs that are about to be taken of me, and I grant John Harrington the full and complete right to license, sell, or otherwise use photographs of me, or which I may appear in, without restriction, in perpetuity."
I have seen variations of this sample language used on nationally syndicated radio programs. Usually, the release is read by the guest before the program. However, on television broadcasts, a production assistant usually comes into the green room beforehand, clipboard in hand, presents the document, and says, "We need you to sign this before you go on air." That is smart, because if the interview doesn't go well, and the assistant tries to get the release signed afterward, the person may refuse.
Types of Releases
There are a few different types of releases; following are the three most common.
Adult release. This is the most common type of release, and it is executed by anyone over the age of 18. Or, in rare cases, the person signing the release could be deemed to be a legal guardian if the subject is considered not capable of executing a release (say, unconscious, incapacitated, or with a diminished capacity). I've included an example of an adult model release that we used on an assignment; see Figure 19.1.
Minor release. In instances where the subject being photographed is under the age of 18, a minor model release is required. The language is very similar to that of the adult release; however, in the minor release, the person is certifying that they are the parent or legal guardian of the minor, and they have the right to release the releasor. When a minor model release is executed, once the child turns 18, there is no legal precedent I am aware of that would allow that child to rescind the contract/release that his or her parent engaged in on his or her behalf, nor am I aware of any requirement that you secure an adult release from the subject at that time. In a best-case scenario,