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model release for fine art

Kevin B. , Jan 28, 2010; 10:50 a.m.

I am going to a rodeo here in a few weeks, and i want to shoot some photos. I hope to put some in my collection and perhaps even sell them as fine art. My question do I need a model release? I will not sell them to a company for commericial reasons / stock. Also if the rider's face isn't distinguishable is it even needed then? Say his back is turned to the camera or is farther away. I just want to be able to sell / display the print as an fine art photographer.

Responses


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Kevin Delson , Jan 28, 2010; 04:23 p.m.

I just want to be able to sell / display the print as an fine art photographer.

Selling and displaying constitute two separate and distinct (uses).

Displaying for purposes of self promotion, art galleries rarely require a release.

Selling (MAY) require a release. With the information given, my opinion is that you are safe to sell as a rodeo is a public event with no expectation of privacy.

"Associating" the images to forward an idea, endorse a product or attributing statements could create a problem. (i.e) If your photo of a rider being thrown from the horse had the caption " Fraud in the rodeo"...you might have a problem. Placing the photo with a photo of a bottle of coke, inferring rodeo riders like coke, would get you in trouble with coke and the model.

Check with the rodeo organizers..a simple question will often yield your answer.

No identifiable face?..No, no release will be needed.

Not selling to agencies or publishers? Just on your own?
I see no problem.

Creating a calandar for sale in mass production? I see a problem. :)

Craig Gillette , Jan 28, 2010; 08:49 p.m.

Art is expressive use and protected under the 1st Amendment, as is editorial use. An image can be used to sell itself without a release. Where a release could be needed would be if the image was used to promote either the gallery or yourself. It can be a bit of a fuzzy edge and some states have somewhat different limitations when it comes to advertising. For example, one state (apparently from forum comments, don't recall which one) allows placement of images in a photographer's studio display windows, others might find that to be an advertising use.

I'd not suggest asking the rodeo promoters about releases. One reason is I don't expect them to be up to speed on intellectual property legal issues. However, there may be some advantages to asking about access, etc. It's possible that they will already have a professional on contract so shooting "commercially" (if you expect to sell the images) may be a problem. OTOH, having advance permission/access may reduce the concerns they have about negative issues with animal rights types.

Stephen Penland , Jan 28, 2010; 11:27 p.m.

Do you already have permission to take photos at the rodeo? I've found rodeos are extremely sensitive about photographs being taken, as some are worried that photos may be used against them by animal-rights advocates.

John H. , Jan 28, 2010; 11:41 p.m.

"Associating" the images to forward an idea, endorse a product... ...Placing the photo with a photo of a bottle of coke, inferring rodeo riders like coke, would get you in trouble with coke and the model... ...Not selling to agencies or publishers? Just on your own? I see no problem... ...No identifiable face?..No, no release will be needed.

1) Forwarding ideas? That describes pretty much every photograph that ever existed. We might want to narrow the field here a wee bit.

2) Coke, whether a beverage or a corporation, is not a human being and has no right to privacy which is the issue model releases address.

3) While Coke a/k/a Coca Cola has trademark rights, that doesn't give them authority to forbid every use of a photo that happens to have the trademark in it.

4) Drinking soda is a commonly accepted normal activity. Being associated with enjoying coke is not an activity expected to generate scorn or ridicule which is an element the model would need to prove when asserting a legal action for the use of his likeness unless the use was to promote the product (which is not mentioned in the description above). Now suggesting falsely that someone is using the coke, as in cocaine, would present problems.

5) Selling an image is not a factor as to whether a model release is needed for the image unless the buyer won't buy it without one. That's a business issue as opposed to a legal issue.

6) How an image of a person is used determines whether a release is needed. The same analysis applies whether the use is by a lone person or a gigantic conglomerate.

7) The issue is whether the person is recognizable, not whether the face is shown. Sometimes people can be recognized while facing away from the viewer especially sports figures bearing numbers and/or their names.

Selling and displaying constitute two separate and distinct (uses).

The distinctions are irrelevant. See nos. 5 & 6 above.

I just want to be able to sell / display the print as an fine art

Fine art is part of so-called editorial use and outside the scope of the invasion of privacy tort of misappropriation (which involves commercial, promotional. endorsement use) and does not require a release unless the use satisfies the legal requirements in any of the three other invasion of privacy torts, namely, false light, intrusion and. disclosure of private facts.

See http://www.rcfp.org/photoguide

Kevin Delson , Jan 29, 2010; 07:27 a.m.

3) While Coke a/k/a Coca Cola has trademark rights, that doesn't give them
authority to forbid every use of a photo that happens to have a the trademark
in it.

I didn't say that John.
I said a photo of a person (inferring) that person likes to drink Coke (association) would leave the publisher of said image exposed legally.

A photo with merely Coke in the background with no forwarding of an idea or endorsement by the person in the photo is not a problem.

John H. , Jan 29, 2010; 08:33 a.m.

I said a photo of a person (inferring) that person likes to drink Coke (association) would leave the publisher of said image exposed legally. A photo with merely Coke in the background with no forwarding of an idea or endorsement by the person in the photo is not a problem.

I don't know why you would say this since 'forwarding an idea' via a photo is not a cause of action. If it were, just about every image with a person in it would require permission form the person in it to be shown as some sort of idea or interpretation can be found from what someone is doing, wearing or whatever when seen in a photo. Also, it is not a cause of action to display a picture of someone tending to show or even clearly showing they enjoy or even endorse something. If your theory were true, a musician would need to grant permission for any photo to be shown playing their beloved Gibson Les Paul. All those publishers who showed sports figures, or any person walking down the street, wearing a Nike swoosh, would be in great legal peril. No one could be shown doing anything they enjoy and certainly not involving a product or some trademarked symbol and that's just nonsense. Now if the SODA COMPANY showed the image of somebody enjoying their soda in order to promote the sale of their product, then there is liability on part of the soda company. Moreover, a photographer selling the image does not make them liable for misappropriation, its the person or entity that uses it that is exposed. Trademarks issue fall under a separate analysis.

See an attorney for legal advice and not us online.

Kevin Delson , Jan 29, 2010; 09:54 a.m.

Errrrrrr!

OK, John....If you insist nit picking every one of MY assertions, please allow me to cite a specific example with this rodeo theme in mind. I was really hoping YOU could infer my meaning..but I suppose that is why we have judges; right?

Ex:
I am a rodeo rider. I compete at a national competition. Some photographer snaps a photo of me sipping a Coke while I am in the chute.

6 weeks later I see an advertisement in some magazine of me, drinking a Coke.
Under the photo is the caption "Rodeo riders everywhere are switching to Coke"

I didn't sign a model release.
I now have legal recourse to sue the publisher, the photographer and probably the Coca-Cola company since Coke (probably) endorsed and permitted the ad.

Further; if the rodeo is a legal entity such as the NFL, with entrants members of a rodeo association they too can sue.

Grey area: Same scenario but this time no caption. The photo shows the rider giving a thumbs up and his other hand holding a bottle of coke. It could be argued he is endorsing Coke. (Association) This one would no doubt have to go to the judge for a decision. How about he's giving the thumbs down? Same problem.

The OP (probably) has no problem doing what they want to do.
My posting was nothing more than pointing out "possible" problems along the way. (i.e) USE.
The chances of the OP being sued? Slim to none in real world practices.

..and yes; selling and displaying are separate (USE) issues. Hanging in a museum or in a gallery is not held to the same standard as me (selling) or publishing in mass quantities, nor am I equally exposed to a law suit claiming damage to a individual for defamatory depiction etc...

When I use the terms (Forward an idea) (Associate) (Endorse), I am speaking of glaring if not obvious scenarios as in the example above.

As this is not a legal forum per se', I will desist further commentary, but am happy to give you the last word.

Craig Gillette , Jan 29, 2010; 02:51 p.m.

The OP has a limited set of uses. Since displaying or selling in a gallery would not require a release, that should answer his questions. Should he or the gallery move into "self promotion," then it's quite likely that a release would be required.

Since he isn't going to sell for commercial uses or stock uses, as long as he doesn't state that there are releases available, he's unlikely to be liable for downstream users actions. That's not to say he wouldn't be caught in a broadly cast net if a suit develops at some point but being sued and losing the case are two different things.

John H. , Jan 29, 2010; 06:20 p.m.

happy to give you the last word.

OK.

The example just given adds new game-changing facts & circumstances so its not really applicable to the earlier version which I commented on.

selling and displaying are separate (USE) issues. Hanging in a museum or in a gallery is not held to the same standard as me (selling) or publishing in mass quantities

To the extent that they are issues, usage is not one of them. Neither selling or not selling an image is an element in any invasion of privacy action. An image could be used in an offending way whether it is sold or not. Therefore, selling is irrelevant.

Displaying is only relevant in that invasion of privacy actions are only viable when the subject image is displayed to others. Therefore, displaying an image is not relevant to discerning if a use of an image amounts to an invasion of privacy or not. It is relevant only IF that question is decided because someone will have to have seen it for the action to exist.

While non promotional museum and art gallery display is editorial use and prevents a claim of commercial use/misappropriation, art displays can still amount to one or more of the three other invasion of privacy torts if the elements of those are satisfied. The elements of those torts are the same whether the subject image observed in one location or in millions of places. Therefore, museum use is held to the same standard when commercial/editorial determination use is not involved.

nor am I equally exposed to a law suit claiming damage

This is true as to how likely one will discover their likeness being used, whether the person involved will feel less harmed by the use and how much damage can reasonably be proved. All of these go to the odds of a claim being made and/or how much can be recovered as opposed to the legal merit so I agree with you on that.

I hope this has been helpful.


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