The Wordsmiths Project Journal

My friend Gail Sisolak recently emailed me with a question about model releases. A fellow journalist, she is designing a Website about weddings, which she plans to launch for Valentine’s Day. She wants to include her photographs of weddings, but she also wants to make sure everything is done correctly. Her question was, if she takes the pictures in a public place, does she need model releases. On the one hand, Gail understands that releases are generally needed. However, a number of photographers she knows doesn’t bother with them.

My response to her was that, yes, she does need model releases. In this litigious age, people file suits for some of the most trivial reasons. But this isn’t really a trivial matter. The most personal possession anyone has is their image, who they are. Both ethically and legally, every individual has the right to decide how and where his or her image is used and by whom. If a person is identifiable (and that doesn’t just mean that their face can be seen, but any particular attribute, clothing or characteristic that his wife or mother or boss might recognize), you shouldn’t publish the picture without permission. Putting a photograph up on a Website is, by definition, publishing that picture so that anyone and everyone can see it. After all, that woman he’s with might not be his wife, or maybe he was supposed to be on a business trip in another city, or, perhaps, there’s nothing wrong with him being there, with those people, but he has the right to not have it broadcast all over the Internet.

What’s more, a hotel or similar venue isn’t a public place, even if she photographs it while standing on a public street. To be on the up and up (which is why Gail was asking the question, to be sure that she was doing everything correctly), she should also get a signed property release from the management or owner of the property where the wedding is taking place.

I’m not sure what photographers she was talking to about needing written permission. But most of Gail’s writing is in newspapers, so I wouldn’t be surprised if they were news photographers, who work with a different set of rules. If a picture is news, then the freedom of the press, guaranteed by the First Amendment of the U.S. Constitution, generally applies. Given the intricacies of our legal system, I’m not one to advise where the First Amendment leaves off, and the right to privacy and freedom from defamation picks up. I do have a feeling, however, that while a Website published by an individual might have a tenuous (perhaps, flimsy) claim to be about the news, that individual usually wouldn’t have the resources or desire to spend years arguing the matter in court. I certainly don’t. 

A part of me rebels against this. After all, one of my favorite artists, Henri Cartier-Bresson, created such memorable photographs by simply walking along the street, snapping at whatever inspired him. I love doing the same, and I resent the fact that I often censor myself when the photograph I want to capture includes a person. Do I stop and ask permission first, thereby disrupting the composition that I see at that moment? Do I just shoot away, without asking, risking their ire, and hoping that they might be willing to sign a release after the fact?  Sometimes, I’m just too weary to bother with all the words of explanation of why I want a release. Yet, if I take the picture without getting a release, what is the purpose? As a professional photographer, I wouldn’t be able to use it. I can become quite disheartened when I see a great image that I let get away, when I have no hope of obtaining a signed release. That’s when I shoot anyway, for my own memories, my own artistic expression, even if no one will ever see it.

Even if we didn’t have legalities hamstringing us, sometimes it just isn’t nice to steal an image. I’m embarrassed to say that I overstepped that barrier last week. All my friends are used to seeing me with a camera. It’s as much a part of my everyday wardrobe as my shoes. They are also used to me taking their pictures. When I was speaking at a conference last week, I saw my friend and fellow writer Lawrence Schoen talking on his phone. The expression on his face was quite warm and appealing. Without thought, I took his picture. I did it so instinctively that I didn’t register the slight shake of his head until afterwards. He didn’t want his photograph taken just then. As I walked away, I felt guilty that I had stolen that moment from him. I have deleted the picture and, when I saw him next, I apologized.

Of course, I do take pictures of strangers, and I do get model and property releases from them. Often, if the person is standing some distance from me, I gesture with the camera, and give them a chance to nod yes or no. Then, I show them the picture on the camera’s LCD, and explain that I am a professional photographer, and that I may want to use the photo in a book, exhibit, lecture or other ways. But that I can’t, unless I have their written permission. I then show them a model release, and say that I would appreciate it if they would consider signing it. It’s done conversationally and respectfully, with my hope for their approval quite evident. I almost always get a signature, and I give them a copy, so they know what they have signed.

I keep my model and property releases simple and short (Wordsmiths model release, Wordsmiths property release, general property and model release). You will notice that the Wordsmiths releases are more limited than my general photography release. That’s because it would be inappropriate to ask editors, critics, agents and others whom I’m photographing for this project, to give me permission to use their images commercially or in stock photography. But for my general photography, I need a wider range of rights to use the pictures. Of course, I’m not an attorney, and I can’t say that the releases I use cover all bases or are correctly worded. Check out the American Society of Magazine Photographers’ Website for legal guidelines on model and property releases.