Releases: When Are They Required?

A subscriber asked recently, “What is the best way to find out all the legal compliance issues associated with selling stock images of individuals and/or groups?”
 
The issue is very simple. If the image is used for any type of commercial use you need a release. If it is being used for editorial use to illustrate a magazine or newspaper story of something that actually happened, and was taken in a public place, then a release is usually not required. However, it can get a little fuzzy if a picture of someone is used to “illustrate” an editorial story that has nothing to do with the subject of the photograph’s lifestyle.  

For example, lets say a magazine editor doing a story on homosexuality finds one of your pictures of two men working together in a kitchen. The publication uses the picture. As it turns out the two men are heterosexual. One is married (to a woman), the other is single. The two live separately. They just happened to be working together preparing a dinner party for friends. If the men see this use of your picture – even though it is an editorial use – they will probably sue – and win.



If you think about it there are countless editorial stories where the person(s) in a stock photo used to “illustrate” the story may not totally agree with the editorial content of the story. In such cases if the person feels strongly that the story misrepresents who they are they may choose to sue.

The first thing for you to do if you don’t have releases is to make sure that anyone marketing you images marks them for “Editorial Use Only.” That tells editors that the image is not released and that they should not use the image in any way that might be construed to misrepresent the individual(s) photographed. Of course, not all editors, or people who are grabbing images off the Internet, pay attention and there are a lot of images used in ways that might misrepresent the lifestyle or philosophy of the subject(s).



One of the big problem areas are illustration for a medical or psychological stories. In these cases editors will often only want to use released images even when they are reasonably sure the story accurately represents the people in the photographs.

You mentioned photographs of Bedouins. Such images will probably be used in travel stories, which are usually up-beat and positive. If the Bedouin sees the actual story (which is unlikely) and if it shows him in a positive light he will probably be happy about it and unlikely to complain. On the other hand, as the world gets smaller, that Bedouin may have a cousin attending Columbia University Law School. If the story misrepresents Bedouins in any way, or puts them in a bad light, then you may find yourself facing a suit.

The big problem for stock photographers is that we usually have no idea of the context in which our pictures will be used. We may think that the photograph we took is a very positive and up-beat characterization of an individual, but if someone chooses to use it in a way that has negative connotations the photographer may become involved in a law suit.



In the recent case against Getty (http://www.selling-stock.com/Article/woman-sues-getty-falsely-labeled-as-hiv-posit) I believe the image was available in the Editorial section of Gettyimages.com. Images on that section of Getty’s site are generally unreleased. As I understand it, this image was originally shot to illustrate a magazine story that had nothing to do with AIDS or any other type of medical condition.

The big problem was that when the New York State Division of Human Rights decided to do a promotion (ad) for their cause they assumed that because their cause is so righteous they could use any image they found anywhere to promote it. It is my understanding that they purchased the image from Getty, but did not carefully read the license that indicated it was unreleased. The fact that the image appeared in a newspaper does not make it editorial. This was advertising and the NYSDHR should have looked for an image that was released. If they had looked on the “Creative” section of the Getty site they would have found lots of released images, but it is my understanding this is not where they got the image they used.

Now, even if Ms. Nolan had signed a release she still would have been very unhappy when her image was used in this way. She might have had very little recourse depending on how tightly the release was written. The photographer would probably have been protected. Getty would have been protected. But that doesn’t make it right to use her image in an ad with a headline that implies she has AIDS.

When it comes to groups or crowds there is no clear definition of what is acceptable. If you’re doing a wide shot of a football stadium with hundreds of people in the picture and no one easily identifiable there will probably be no problem. On the other hand customers often need closer shots that show peoples expressions. I know stock photographers who have hired 30 or 40 models and set up shots so it looks like the people are part of a larger crowd at a sports event or concert.

A few years ago there was a photographer who wanted to create a shot of people watching a theater performance. He convinced an acting group of over 50 people to come to a theater and play the role of theater attendees for his shot. They all signed releases and were willing to do it without compensation.

Some agencies operate on the principle that, if there are more than 5 people in a group and no focus on any particular individual in the group then a release may not be required. But that’s no guarantee there won’t be legal problems if the image is used in a negative context.

Most of this assumes that professionals will be licensing rights to use your pictures. But we’re rapidly moving into an environment where anyone can grab your picture off the Internet and use it anyway they want. When this happens there is no telling what kind of misrepresentations there will be of the people you photographed. Since you did not authorize and received no compensation for such uses you may not be legally liable, but you may still be required to hire a lawyer to defend yourself.