So at the risk of stating the obvious, as photographers we take photos of all kinds of things. Friends, relatives, immediate family and pets I guess are the obvious ones. But many of us also photograph landscapes, urban scenes, static products and of course clients.
Now – from the get-go I want to let you know that I am simply repeating information found by doing a simple Google search, I will make a few references to a couple of great resources at the end of this blog post.
Anyway, back to my story, I was talking to a photographer a couple of weeks ago about what kind of model release form they use when they want to publish images on their website; for display purposes or otherwise. “A ‘model release’, what’s that? I don’t need one of them do I, it’s not like I am selling the images or anything…”
Well, sadly it is a sign of the times but in this litigious age we live in, a model release or some form of consent from your clients or models – paying customers or freebie shoots – is essential. Myself, I have been using a couple of different model release forms for years now. I have a generic one for when I shoot a model portfolio as a “freebie”, and a couple of more specific ones if the nature of the images are a little more, um, sensitive. I make no secret of the fact to every client that will need to sign one, and they are made well aware of it long before they step foot into our studio. In fact, why don’t you have a quick look here on my website to see the wording involved in the release form.
I guess they best way to explain all this is to repeat a couple of Q&A forums I found on Australian Copyright Laws.
Do I need permission to photograph a building?
Generally, no. Although a building is protected by copyright, a special exception in the Copyright Act allows buildings to be photographed without permission. Be aware though, that the owner of a property may impose restrictions regarding entry onto the property. It may sometimes be the case, as with photographs of people, that certain unauthorised uses of a photograph of a particular building may raise issues under other laws, such as trade practices legislation.
A client has not paid me. Who owns copyright in the photographs?
The photographer generally owns copyright unless there is an agreement to the contrary. However, if the photograph was commissioned for a private or domestic purpose, the client owns copyright unless there was an agreement to the contrary.
If the client owns the copyright, the photographer is entitled to recover the debt, but not to prevent the client using the photograph for the purposes for which it was taken.
Your solicitor should be able to draft a contract in such a way as to give you rights under copyright law as well as under the contract. Such a contract may assist you in the event that a client uses a photograph before paying you.
Do I need permission from people I photograph?
A person’s image is not protected by copyright. However, in some cases, using a person’s image without permission may be prevented under other laws, such as the law of passing off, the Trade Practices Act 1974 and State and Territory fair trading laws. These areas of law concern conduct which may mislead or deceive the public and may particularly come into play if the photograph you are taking is of a well-known person, and is to be used, for example, as a poster or as a postcard or in advertising. In some cases, uses of photographs may be defamatory of people in them.
If you are commissioned to take photographs, it should not generally be your job to check these issues. However, it may be a good idea to alert clients to the fact that they may need to seek advice from a solicitor with the relevant expertise (note that the Copyright Council does not advise on these other areas of law).
Generally, if you have asked somebody to sit for you, it’s a good idea to get a “model release” from that person so you won’t have to worry later about whether or not your use of resulting photos will raise issues under areas of law such as passing off or the Trade Practices Act. (For a sample photographer's model release, with explanatory notes, see the Arts Law Centre of Australia website.
In other cases, photographers may take more casual shots—for example, photographs of people in the street or at markets, or playing sports. If you know that you might later be using such a photograph commercially, it’s generally a good idea to get a model release from the people you have photographed. If it’s impractical to get the people in your shots to sign model releases, or if they refuse to do so, your ability to use or license the use of the photograph in certain ways might be limited because of the laws discussed above.
It is generally not an invasion of privacy to take another person’s photograph. However, in some circumstances, you may be required to comply with the National Privacy Principles in the Privacy Act 1992 (Cth).
For more on this boring but oh-so-important subject, have a look at http://www.copyright.org.au/. I guess the purpose of this post is to help shed a little more light on this topic that doesn’t seem to get discussed all that much – which I quite frankly find surprising. Remember, in the eyes of the law ignorance is not an excuse to break the law. Enough said.
Please feel welcome to use my model release form, or modify it to suit your own needs. Use it. Love it. Never forget to have the client or model sign it if you wish to use their images.
Now – from the get-go I want to let you know that I am simply repeating information found by doing a simple Google search, I will make a few references to a couple of great resources at the end of this blog post.
Anyway, back to my story, I was talking to a photographer a couple of weeks ago about what kind of model release form they use when they want to publish images on their website; for display purposes or otherwise. “A ‘model release’, what’s that? I don’t need one of them do I, it’s not like I am selling the images or anything…”
Well, sadly it is a sign of the times but in this litigious age we live in, a model release or some form of consent from your clients or models – paying customers or freebie shoots – is essential. Myself, I have been using a couple of different model release forms for years now. I have a generic one for when I shoot a model portfolio as a “freebie”, and a couple of more specific ones if the nature of the images are a little more, um, sensitive. I make no secret of the fact to every client that will need to sign one, and they are made well aware of it long before they step foot into our studio. In fact, why don’t you have a quick look here on my website to see the wording involved in the release form.
I guess they best way to explain all this is to repeat a couple of Q&A forums I found on Australian Copyright Laws.
Do I need permission to photograph a building?
Generally, no. Although a building is protected by copyright, a special exception in the Copyright Act allows buildings to be photographed without permission. Be aware though, that the owner of a property may impose restrictions regarding entry onto the property. It may sometimes be the case, as with photographs of people, that certain unauthorised uses of a photograph of a particular building may raise issues under other laws, such as trade practices legislation.
A client has not paid me. Who owns copyright in the photographs?
The photographer generally owns copyright unless there is an agreement to the contrary. However, if the photograph was commissioned for a private or domestic purpose, the client owns copyright unless there was an agreement to the contrary.
If the client owns the copyright, the photographer is entitled to recover the debt, but not to prevent the client using the photograph for the purposes for which it was taken.
Your solicitor should be able to draft a contract in such a way as to give you rights under copyright law as well as under the contract. Such a contract may assist you in the event that a client uses a photograph before paying you.
Do I need permission from people I photograph?
A person’s image is not protected by copyright. However, in some cases, using a person’s image without permission may be prevented under other laws, such as the law of passing off, the Trade Practices Act 1974 and State and Territory fair trading laws. These areas of law concern conduct which may mislead or deceive the public and may particularly come into play if the photograph you are taking is of a well-known person, and is to be used, for example, as a poster or as a postcard or in advertising. In some cases, uses of photographs may be defamatory of people in them.
If you are commissioned to take photographs, it should not generally be your job to check these issues. However, it may be a good idea to alert clients to the fact that they may need to seek advice from a solicitor with the relevant expertise (note that the Copyright Council does not advise on these other areas of law).
Generally, if you have asked somebody to sit for you, it’s a good idea to get a “model release” from that person so you won’t have to worry later about whether or not your use of resulting photos will raise issues under areas of law such as passing off or the Trade Practices Act. (For a sample photographer's model release, with explanatory notes, see the Arts Law Centre of Australia website.
In other cases, photographers may take more casual shots—for example, photographs of people in the street or at markets, or playing sports. If you know that you might later be using such a photograph commercially, it’s generally a good idea to get a model release from the people you have photographed. If it’s impractical to get the people in your shots to sign model releases, or if they refuse to do so, your ability to use or license the use of the photograph in certain ways might be limited because of the laws discussed above.
It is generally not an invasion of privacy to take another person’s photograph. However, in some circumstances, you may be required to comply with the National Privacy Principles in the Privacy Act 1992 (Cth).
For more on this boring but oh-so-important subject, have a look at http://www.copyright.org.au/. I guess the purpose of this post is to help shed a little more light on this topic that doesn’t seem to get discussed all that much – which I quite frankly find surprising. Remember, in the eyes of the law ignorance is not an excuse to break the law. Enough said.
Please feel welcome to use my model release form, or modify it to suit your own needs. Use it. Love it. Never forget to have the client or model sign it if you wish to use their images.
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