As a photographer, can you really do what you like with the images you take that are of people? After all, because you took the photographs you own the copyright of them, therefore it’s up to you what you do with them, where they are published, and who you sell them to, right?
Naturally it’s not that simple! Generally speaking, there are a couple of misconceptions in this broad subject. The first is that you must have a model release signed when photographing people, the second is that the photographer owns the copyright of the image and can therefore do whatever he likes with them. These are both incorrect. A model release (or a consent form) is not a requirement in the UK, but it does makes sense to have some kind of signed written agreement. This is to protect the photographer, the person photographed and, if on a commercial shoot, the customer. It’s an agreement between all parties which confirms where the image can ultimately be used, and the conditions applied to that usage.
Quite often it’s as simple as receiving a signature where the subject basically releases all interest in the final images and gives the photographer the all clear to use them wherever he sees fit (within reason, but more on this later). Again, there’s no legal requirement for this, but if nothing else it clarifies to everyone what is expected. In other instances this document may be specific to the commercial job, and conditions of use may apply which only allow the work to be used in certain situations.
So, what of this concept that the copyright belongs to the photographer and he can do whatever he likes with it? Well, it’s half true, the copyright does belong to the photographer, but there are limitations to where an image can be used, especially if a model release or consent form has not been signed. Firstly, an individual who commissions a photograph for private or domestic use has a right to privacy. If I take a booking for a family photoshoot for example then the copyright of the images belongs to me, but this doesn’t give me the right to publish them in the public domain, unless I have express permission from my customer.
In commercial photography imagine an image of a model with a product. Because of the image the model now becomes connected with the product. There could be many reasons why in the future this connection could be deemed as inappropriate, and without evidence of the models signed permission for you to take the image this could infringe on their legal rights, leaving you open to legal action. The last thing you need is a court order to withdraw an image after your customer has paid for the photoshoot – and included the shot in their print run of 20,000 brochures!
Individuals have a right to identity, and this is where words such as ‘defamation’ and ‘recognisable’ crop up. Imagine somebody takes an image of me walking past a football stadium. I’m clearly identifiable in it, and it appears in a newspaper article about the stadium. I can’t really argue with that, because by being there in public I’ve waived my right to privacy. If however the newspaper article spoke about Nazi football hooligans then I would have grounds to sue, because I’m actually not a Nazi football hooligan! That’s defamation. The copyright of the image belongs to the photographer, he doesn’t need a model release, but there are restrictions of use within English law.
So it’s not as clear cut as you might think! A photographer actually can’t do what he likes with his images. There’s not a green light to use them anywhere, the photographer must be careful to stay within the law or risk facing the consequences. To sum it all up, what’s the easiest way to make sure everyone is happy? Simple – draw up a mutually beneficial agreement, put it all in writing, then find a pen.