Michael Fryd wrote:
...but if you are going to use the image to promote goods and/or services (i.e. your photography business), then you likely need the model's permission.

It's like you think if you write this enough times over the years, it will become true. 90+ percent of the time, using images you shot to promote your photography (regardless of whether it's technically a business entity) is NOT commercial usage.

J O H N  A L L A N wrote:
It's like you think if you write this enough times over the years, it will become true. 90+ percent of the time, using images you shot to promote your photography (regardless of whether it's technically a business entity) is NOT commercial usage.

Mr. Allan.   There is no need for you bring your personal feelings about me into these discussions. 

My statement was that in many states you need a release in order to use someone's likeness to promote a business.   State law tends to be very clear on this.  Generally, photography businesses are not exempted.  Use a model's likeness in a newspaper ad for your photography business, and a release is in order.

There are many who have suggested that use in an online "portfolio" may not require a release.   This is an interesting question.  I don't believe that the courts have given us definitive guidance on this issue for all 50 states.

Whether or not a particular use requires a release is an issue that a court would need to decide.   If a court does decide that you are using the image to promote your photography business, then you likely would need a release.

tcphoto wrote:
I use the same model release whether it's a paid test or TFP, they can use the images in their book, compcard and agency promos. I do not authorize use or trading out for goods or services from Third Parties. I only proof images that I think represent myself and the model well and a predetermined number of edited images.

+1  first photo I take is of model signing release and holding valid photo id, it helps you never know.

Michael Fryd wrote:
Mr. Allan.   There is no need for you bring your personal feelings about me into these discussions. 

My statement was that in many states you need a release in order to use someone's likeness to promote a business.   State law tends to be very clear on this.  Generally, photography businesses are not exempted.  Use a model's likeness in a newspaper ad for your photography business, and a release is in order.

There are many who have suggested that use in an online "portfolio" may not require a release.   This is an interesting question.  I don't believe that the courts have given us definitive guidance on this issue for all 50 states.

Whether or not a particular use requires a release is an issue that a court would need to decide.   If a court does decide that you are using the image to promote your photography business, then you likely would need a release.

What "personal feelings about you" are you possibly inferring or could reasonably infer from my post.

You're reading "to promote a business" much to broadly. I can use unreleased images in my portfolio and photography collateral all day long without a release (although one could certainly say, that the images are actually limited-released due to the standard long-standing definition of agency testing, where the images are "released" for self-promotion) - the form of the self promotion nor the fact that a professional photographer is generally "wrapped" in some sort of business entity, doesn't change that.

Now, I couldn't "lend" my photographs to you to promote your photographic business without a release. I also doubt I could pass legal scrutiny if I owned a portrait studio with multiple photographers and I wanted to use unreleased images I took to promote that business.

There's also miles of legal precedent where statute/precedent(whatever) is upheld where only the technology changes but the base facts stay the same. Online portfolios versus printed portfolios would be an example of that.

P.S. There's also a lot of types of images by Internet photographers, where a model could probably easily argue that the images hold him/her up to ridicule. If I was taking those kinds of images, I'd probably want them released no matter what - but that's kind of a side discussion.

tcphoto wrote:
I use the same model release whether it's a paid test or TFP, they can use the images in their book, compcard and agency promos.

Really??! It's doubtful any legitimate fashion agency is going to permit their girls to sign a general release for tests.

Michael Fryd wrote:
...but if you are going to use the image to promote goods and/or services (i.e. your photography business), then you likely need the model's permission.

J O H N  A L L A N wrote:
It's like you think if you write this enough times over the years, it will become true. 90+ percent of the time, using images you shot to promote your photography (regardless of whether it's technically a business entity) is NOT commercial usage.

It just so happens that the OP is in Mass. and Mass and NY law are nearly word for word identical on the subject of the need, or not, for consents. It is equally true that both state's courts have interpreted the nearly exactly same law differently.

There is some evidence that in NY, because of the specific language that is used in the law, a photographer CAN display, AT THEIR ESTABLISHED PLACE OF BUSINESS, without explicit advance consent, someone's image as an example of their photographic work. In effect promoting their business and that equates, in respect of the relevant law, to a commercial use.That permissible use, that is to say an exception to what the law would otherwise require, is further qualified, however, in that where there is no such explicit consent the person whose image is so used has the absolute right to demand, at any time, that any such use be terminated and that it not be used. What is unclear, still, for lack of any specific case law, is whether any such display OUTSIDE OF the context of a bricks and mortar business premises, say on the Internet, is inclusive in the meaning of "place of business." There was a NY state case in a different area that sort of hints at the possible answer applicable to at least that state. An insurance broker in NY, was issuing policies by communicating with clients via a remote electronic terminal. In insurance law in the state of NY policies can only be issued at the agent's place of business. When, during a dispute, the courts looked into such a claim against a broker they held that the remote computer terminal was NOT the broker's place of business. The broker was, in fact, breaking the law and the validity of the policies was in doubt. This obviously does not define the very similar question in respect of photographers and images by any means, but it does hint at how the the place of business question MIGHT be treated if a dispute arose over that place of business question in the photography field.

Again, as the OP is in Mass and the Mass courts have looked at the thing in different ways from the NY courts, even where the laws in both jurisdictions are virtually identical, it is impossible to predict, in either state for that matter, just how it would shake out.

The only law, and how it is interpreted, that matters to the OP is the statute and it's interpretation in the OP's own state. The OP can not make any kind of valid assumptions based on CA law, or Illinois law [also very broad rights and protections to individuals] or even NY's view of it. None of those matter. Only the law, and how it is interpreted by the courts in Mass does.

Studio36

J O H N  A L L A N wrote:
...
You're reading "to promote a business" much to broadly.
...

Let me be clear.

If a usage falls under the "promoting a business" clause, then permission is needed from the model (typically in the form of a release).

Whether or not a particular usage falls under this clause is an entirely different question. 

In the US, as a general rule, it does not hurt to have a release in situations where one is not required.  It can be a problem to lack a release in situations where you are required to have one.  Some photographers prefer to always get a release and not worry about whether or not a specific usage requires a release.

Michael Fryd wrote:
In the US, as a general rule, it does not hurt to have a release in situations where one is not required.  It can be a problem to lack a release in situations where you are required to have one.  Some photographers prefer to always get a release and not worry about whether or not a specific usage requires a release.

You know - it's fine to spout this in relation to hobbyist shooters, where they're primarily interacting with hobbyist models - all making up their own rules, but the minute you step out into the real world, replete with agencies and clients and such - the paradigm you suggest falls apart abruptly.

J O H N  A L L A N wrote:

You know - it's fine to spout this in relation to hobbyist shooters, where they're primarily interacting with hobbyist models - all making up their own rules, but the minute you step out into the real world, replete with agencies and clients and such - the paradigm you suggest falls apart abruptly.

I think it's fair to say that there is a lot of variation in the world of professional photography.   Some very successful photographers rarely work with agency represented models, and other photographers wouldn't think of shooting anyone but an agency model. 

I could easily be wrong, but I assumed the OP was asking about a TFP shoot with a non-agency model.

Michael Fryd wrote:
I think it's fair to say that there is a lot of variation in the world of professional photography.

Agreed. What I continue to have problems understanding is the insistence by the Internet photography community, to not take advantage of long standing best practices within the industry, in favor of re-inventing their own as some kind of badge.
For instance as a hobbyist, if one simply "in writing" says this is an agency-style test (not tfp - test). And explains the long-standing parameters/obligations/terms of a standard test to the other party if need be. Then one doesn't need to be quite so concerned about some adhoc lawyer challenging usage in their photographer collateral. Because the images have a limited release (so to speak). But noooooooo. The hobbyists insist on developing their own individual rules/world, leaving a 10 foot doorway for lawyers to walk through.

I remember when I was first starting out around 1990 and I didn't like the quality of what I was getting from color print film. I found out that the pros were using Kodachrome/transparency and although I didn't quite understand why at that time, I switched. Over the next few years I began to find out the why of my decision and the industry standard. The agencies wanted my images delivered on transparency, so did publications (or scanned transparency later on). Glad I adhered to industry standard, as it made my life for the next 10 years or so, so much easier - even if I didn't fully understand why at the time of initial adoption.

J O H N  A L L A N wrote:
Agreed. What I continue to have problems understanding is the insistence by the Internet photography community, to not take advantage of long standing best practices within the industry, in favor of re-inventing their own as some kind of badge.
For instance as a hobbyist, if one simply "in writing" says this is an agency-style test (not tfp - test). And explains the long-standing parameters/obligations/terms of a standard test to the other party if need be. Then one doesn't need to be quite so concerned about some adhoc lawyer challenging usage in their photographer collateral. Because the images have a limited release (so to speak). But noooooooo. The hobbyists insist on developing their own individual rules/world, leaving a 10 foot doorway for lawyers to walk through.

When working with an agency model you have the reputation of the agency and the model on the line.   Failing to abide by industry standards can have negative effects on the model and/or agency.

When working with a non agency model who does this as a hobby, there is little to ensure that she will abide by (or even be aware of) industry standards.

Michael Fryd wrote:

When working with an agency model you have the reputation of the agency and the model on the line.   Failing to abide by industry standards can have negative effects on the model and/or agency.

When working with a non agency model who does this as a hobby, there is little to ensure that she will abide by (or even be aware of) industry standards.

The standards don't just benefit the agency, they benefit the photographer also. What, one can't explain to the model what test means? - If one was to misrepresent the meaning there's no benefit, as if it every got to court, they'd just compare what you said with someone that actually knew, and busted.

J O H N  A L L A N wrote:
The standards don't just benefit the agency, they benefit the photographer also. What, one can't explain to the model what test means? - If one was to misrepresent the meaning there's no benefit, as if it every got to court, they'd just compare what you said with someone that actually knew, and busted.

These issues vary by state.

In some states permission can be implied.  In these states it can be reasonably argued in court that by participating in an "industry standard test" the model was granting implied permission.

In some states, permission must be in writing.  In these states the law requires an explicit written document.   If it ends up in court, common practice maybe not be relevant.  In these states one is relying on the model/agency behaving nicely.   

If you don't have an agency model, it's easy to have an issue.  It can be difficult to prove in court that you explained to the model that she was providing implied permission.  In a state that requires written permission, your explanations might not even be relevant.


But let's get back to the real world.   Legal actions cost money.  People generally don't sue unless there is something to be gained.  Generally, there is no law suit unless at least one of the parties has a lot of money.  With a small time photographer shooting TFP with a small time non-agency model, neither party likely has the resources or motivation to sue.

On the other hand, if the photographer is married to someone rich, then there may be assets to go after.  I would suggest that someone with assets be very careful to stay within the law.  While some states limit awards to actual damages, some states allow statutory damages.

The laws requiring model releases vary from state to state.   In situations where the model is from just over the state line, the photographer is marketing himself nationally, and/or the photographer's web server is in a third state, it isn't always clear which state laws are applicable.  If you did end up in court, it might be difficult to prove that industry practices that started long before the Internet are applicable to Internet situations. 

The TV/movie industry has had similar technology issues.  A TV show may have licensed music for an episode.  At the time, the only envisioned use was broadcast TV.  Subsequently, DVD's and home video tapes get invented.  Does the prevailing "industry practice" allow them to release the shows on DVD, or do they need to relicense the music?   New technology can be disruptive.  Sometimes it is not clear how common industry practices apply when new technology is introduced.   

Traditionally, a "portfolio" was a physical book of printed photos that the photographer carried around.  He could individually show this book to potential clients.  By its very physical nature, the potential audience for the portfolio was limited.  Is there a legal difference between this traditional use and an online "portfolio" that is visible by billions of people around the world?  Keep in mind that when it comes to the law, logic is not what counts, it is the rulings of the courts.

With modern technology in the mix, many photographers prefer to be conservative and get a release, particularly when the model is not agency represented.

Some photographers don't get a release.  I suspect the majority of these will not have a problem. 

I also suspect that the majority of people who don't wear seat belts will not have a problem.  If you don't get into a crash, it doesn't matter that you aren't wearing a seat belt.  If you do get into a crash, that seat belt might save your life.  Conservative drivers wear seat belts.  Many drivers who don't wear seat belts won't have an issue.

I tend to be conservative.  My policy is to get a release before I use a model's likeness on my web site, and I aways wear a seat belt.  Other photographers have different policies.

J O H N  A L L A N wrote:

It's like you think if you write this enough times over the years, it will become true. 90+ percent of the time, using images you shot to promote your photography (regardless of whether it's technically a business entity) is NOT commercial usage.

An advertisement is commercial. A portfolio is not.

Michael Fryd wrote:
In some states permission can be implied.  In these states it can be reasonably argued in court that by participating in an "industry standard test" the model was granting implied permission.

In some states, permission must be in writing.  In these states the law requires an explicit written document.   If it ends up in court, common practice maybe not be relevant.  In these states one is relying on the model/agency behaving nicely.   

If you don't have an agency model, it's easy to have an issue.  It can be difficult to prove in court that you explained to the model that she was providing implied permission.  In a state that requires written permission, your explanations might not even be relevant.

Except the problem with your argument is that we're NOT talking about "implied permission" any more than we would label a written statement of "I'll meet you at your house", as implied because it didn't include the specific definition of "meet".

This is again the advantage of using standardized terms. One doesn't have to explicitly define them every time a written agreement uses the term.

Michael Fryd wrote:

Mr. Allan.   There is no need for you bring your personal feelings about me into these discussions. 

My statement was that in many states you need a release in order to use someone's likeness to promote a business.   State law tends to be very clear on this.  Generally, photography businesses are not exempted.  Use a model's likeness in a newspaper ad for your photography business, and a release is in order.

There are many who have suggested that use in an online "portfolio" may not require a release.   This is an interesting question.  I don't believe that the courts have given us definitive guidance on this issue for all 50 states.

Whether or not a particular use requires a release is an issue that a court would need to decide.   If a court does decide that you are using the image to promote your photography business, then you likely would need a release.

The problem is your choice of the word promote. It's never clear what you mean by it.

If you mean advertising, then that's a better word choice. If you mean other forms of generating business, then it's not advertising, so it's not a commercial use.

A biographical use is a statement of fact. Journalism is also a statement of fact.

One reason you're not going to find a precedent in all 50 states is because there's not a question about certain uses and they'll never make it to court.


Do you think the subjects of "unauthorized biographies" are signing releases for the authors/publishers? And those covers are used for "promotion" and they're used in advertisements and sold in all 50 states.

Mikey McMichaels wrote:

An advertisement is commercial. A portfolio is not.

Well, neither is when I post images from a test on social media, neither is when I use them for my business card. It's not commercial usage either when the agency prints them on the model's comp card. Nor is it commercial usage when I display them on my website. It's not just a "portfolio".
So, one has to basically differentiate between marketing collateral for self-promotion and advertising. Even if a lawyer might choose to argue commercial use, doesn't make it so - they make their money on redefining terms/statute/etc to suit their immediate purpose. Doesn't mean they would get anywhere.

Mikey McMichaels wrote:

The problem is your choice of the word promote. It's never clear what you mean by it.

If you mean advertising, then that's a better word choice. If you mean other forms of generating business, then it's not advertising, so it's not a commercial use.

A biographical use is a statement of fact. Journalism is also a statement of fact.

One reason you're not going to find a precedent in all 50 states is because there's not a question about certain uses and they'll never make it to court.


Do you think the subjects of "unauthorized biographies" are signing releases for the authors/publishers? And those covers are used for "promotion" and they're used in advertisements and sold in all 50 states.

I used the word "promote" because that's the verbiage used for permissible use of test images since I started testing with agencies in the early 90s. "self-promotion".

J O H N  A L L A N wrote:

Except the problem with your argument is that we're NOT talking about "implied permission" any more than we would label a written statement of "I'll meet you at your house", as implied because it didn't include the specific definition of "meet".

This is again the advantage of using standardized terms. One doesn't have to explicitly define them every time a written agreement uses the term.

Sorry. Bad choice of words on my part.  By "implied permission", I was trying to describe a situation where the permission did not take the form of an explicit written document executed by the model or someone with authority to sign on the model's behalf.

If you are in a state that requires written permission, then you need explicit written permission.   Standard Industry Practice would not be acceptable.

At least that's what the law says...


In situations like this the law is only an issue if the parties involved fight, and the fight escalates to a court battle.

In the real world, this likely would never make it to court, as the the agency would not file a complaint and the photographer would restrict his usage to agreed upon usages.


If the issue does make it to court (perhaps you are not dealing with an agency model), then the law, not industry practice is the important factor.  If your state requires a written release, then industry practice, or understandings between the parties are not relevant.

As I have mentioned before, these things rarely make it court.

Mikey McMichaels wrote:
The problem is your choice of the word promote. It's never clear what you mean by it.

If you mean advertising, then that's a better word choice. If you mean other forms of generating business, then it's not advertising, so it's not a commercial use.

A biographical use is a statement of fact. Journalism is also a statement of fact.

One reason you're not going to find a precedent in all 50 states is because there's not a question about certain uses and they'll never make it to court.


Do you think the subjects of "unauthorized biographies" are signing releases for the authors/publishers? And those covers are used for "promotion" and they're used in advertisements and sold in all 50 states.

Yes, the word "promote" is not clear.    However, some state laws actually use this term.  Illinois 765 ILCS 1075/1 includes "advertising or promoting products, merchandise, goods, or services" as one of the uses which require a release.  Florida statute 540.08 says: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent

Both states add various exceptions for news, etc.

There is no simple phrase that definitively describes all the situations where a release is needed.  There are many phrases that give the general idea ("advertising", "commercial use", "promote goods and/or services") but one should not rely on these phrases as being definitive.  If the law was simple and obvious, we wouldn't need so many lawyers.

One needs to look at that state's laws, and the relevant court opinions.  These need to be interpreted in a legal context, not a common sense one.

Michael Fryd wrote:
Yes, the word "promote" is not clear.    However, some state laws actually use this term.  Illinois 765 ILCS 1075/1 includes "advertising or promoting products, merchandise, goods, or services" as one of the uses which require a release.  Florida statute 540.08 says: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent

Both states add various exceptions for news, etc.

There is no simple phrase that definitively describes all the situations where a release is needed.  There are many phrases that give the general idea ("advertising", "commercial use", "promote goods and/or services") but one should not rely on these phrases as being definitive.  If the law was simple and obvious, we wouldn't need so many lawyers.

One needs to look at that state's laws, and the relevant court opinions.  These need to be interpreted in a legal context, not a common sense one.

And added to the mix you mention is California's right of publicity statute known as "Cal. Civil Code §3344"

Section 3344 is violated where a person "knowingly uses another's name, voice, signature, photograph, or likeness, . . . for purposes of advertising or selling, . . . without such person's prior consent.

"To sustain a cause of action for commercial misappropriation under Cal.Civ. Code § 3344, a plaintiff must prove: (1) the defendant's use of the plaintiff's identity, (2) the appropriation of the plaintiff's name or likeness to the defendant's advantage, commercially or otherwise, (3) lack of consent, and (4) resulting injury.If a plaintiff prevails on a Section 3344 claim,[/i] he may be able to recover significant damages." [emphasis is mine - S36]

Specifically, the statute provides that "the person who violated the section shall be liable ... in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.... Punitive damages may also be awarded [and the] prevailing party ... shall also be entitled to attorney's fees and costs ."Cal. Civil Code § 3344(a) (emphasis added).These remedies are cumulative and in addition to any other remedies provided for by law.Cal. Civil Code § 3344(g).

And a photographer using an un- consented [un- released] image to promote his own business however indirectly - say, on a website, on flyers, on his business card, and so forth, should pay particular attention to this phrasing: ... the appropriation of the plaintiff's name or likeness to the defendant's advantage, commercially or otherwise,

For a lesson in the practical application of §3344 see:

Russell Christoff v. Nestle USA, Inc. 47 Cal. 4th 468 (2009)
- - - the plaintiff [Christoff] was eventually awarded US$15.1 MILLION!

It seems the agency v non-agency model, and the "industry standard practices," questions are moot. Christoff was at the time a "professional" model; an agency represented model; he was paid as such what amounted to a testing fee getting $250 for the initial sitting but under an agreement that would pay him an additional $2000 commercial use [uplift] fee + his agency fees if, but only if, his image was used [on a product]; Nestle failed to pay the agreed uplift fees. Under §3344 a NON-agency model, paid or even shot TF*, WITHOUT SIGNING A RELEASE / CONSENT, and where their image was then used in the "stream of commerce", e.g. by the photographer for their own advantage in the marketplace, would be in the very, exact, same position to sue as Christoff vis a vis §3344, AT LEAST TO THE EXTENT that the statute provides for minimum statutory damages in the amount of $750.

It seems it does not matter if Nestle did it or you do it as the photographer. If the use of someone's image is one for the purpose of obtaining a commercial advantage even if that use is not strictly a "commercial use" as most seem to be using that term, then the image should be associated with a release / consent to do so. The only seeming difference is in the amount that is at risk. In Nestle' case it was $15.1 million, in your case it might only be $750 - but still beyond pocket change to most photographers. AND, if you are using multiple images of different models where more than one of them wants to "take a bite of yo' azz" that could get really expensive really fast.

And for indirect commercial gain and Internet use see:
Louder and Crowder-Starks v. Compuserve, Inc, et al.., No. BC153274 (Cal. Super. Ct., L.A. County, July 5,1996)

This was a class action. Result? ca. one million bucks in damages!

* The Class settled with defendant CompuServe Inc. for $20,000
* The Class settled with defendant Go Graphics Inc. for $650,000 following mediation.
* The Class obtained Summary Judgment against defendant Schwartz in the amount of $329,250 plus attorney's fees and costs.
* The Class members received a net of approximately $790. per photograph, a recovery above the statutory penalty.

Studio36

Michael Fryd wrote:

Yes, the word "promote" is not clear.    However, some state laws actually use this term.  Illinois 765 ILCS 1075/1 includes "advertising or promoting products, merchandise, goods, or services" as one of the uses which require a release.  Florida statute 540.08 says: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent

Both states add various exceptions for news, etc.

There is no simple phrase that definitively describes all the situations where a release is needed.  There are many phrases that give the general idea ("advertising", "commercial use", "promote goods and/or services") but one should not rely on these phrases as being definitive.  If the law was simple and obvious, we wouldn't need so many lawyers.

One needs to look at that state's laws, and the relevant court opinions.  These need to be interpreted in a legal context, not a common sense one.

Maybe your conflating "photography services" with "photographer".

Taking your Illinois example we can pull out "promote" and "services" and say that requires a release.

A photographer can use a photo to communicate different messages. One can be an objective fact "I shot this photo" or "these are all photos I've shot".

Another is "This person endorses the service I provide. You know their reputation, and they are telling you that you will be happy with the services I provide if you hire me." Services are far more than photos. Someone being in a photo, or consenting to being in a photo doesn't indicate their opinion of the photographer's skill or the resulting photo. When you co-opt the trust people have in the subjects reputation you're putting words in their mouth and that's what you need the release for.

Think of the release as proof of a yes answer. "Are you saying that you think this person is a good photographer?" "Are you saying that I should hire them?" If the photo is being used in a way to imply the subject would answer yes, then you need a release. That's using google the subject of the photo to be a promoter of the service. They're the one's doing the promotion, not the photographer. The release means you've consulted with the subject to their satisfaction on whatever you my imply and use their reputation to as a form of insurance for the customer.

We don't need a release to know the answer to the question "Is this you in the photo?" If a photographer is saying using the photo to say "I'm a good photographer, you should hire me" then the person who is the subject of the photo is not doing the promotion, it's the photographer doing the promotion. You're not putting words in their mouth. You're not risking their reputation on their behalf. People consent to being in photos for far more reasons than thei belief in the photographer's skill so someone being in a photo is not proof of any form for endorsement of the photo or the photography service. The subject of the photo is not being put in a promotional role. The object - the photo itself is used by the photogroaher for promotion, but not the subject.

Mikey McMichaels wrote:
Maybe your conflating "photography services" with "photographer".

Taking your Illinois example we can pull out "promote" and "services" and say that requires a release.

A photographer can use a photo to communicate different messages. One can be an objective fact "I shot this photo" or "these are all photos I've shot".

Another is "This person endorses the service I provide. You know their reputation, and they are telling you that you will be happy with the services I provide if you hire me." Services are far more than photos. Someone being in a photo, or consenting to being in a photo doesn't indicate their opinion of the photographer's skill or the resulting photo. When you co-opt the trust people have in the subjects reputation you're putting words in their mouth and that's what you need the release for.

Think of the release as proof of a yes answer. "Are you saying that you think this person is a good photographer?" "Are you saying that I should hire them?" If the photo is being used in a way to imply the subject would answer yes, then you need a release. That's using google the subject of the photo to be a promoter of the service. They're the one's doing the promotion, not the photographer. The release means you've consulted with the subject to their satisfaction on whatever you my imply and use their reputation to as a form of insurance for the customer.

We don't need a release to know the answer to the question "Is this you in the photo?" If a photographer is saying using the photo to say "I'm a good photographer, you should hire me" then the person who is the subject of the photo is not doing the promotion, it's the photographer doing the promotion. You're not putting words in their mouth. You're not risking their reputation on their behalf. People consent to being in photos for far more reasons than thei belief in the photographer's skill so someone being in a photo is not proof of any form for endorsement of the photo or the photography service. The subject of the photo is not being put in a promotional role. The object - the photo itself is used by the photogroaher for promotion, but not the subject.

Let's step back.

When this thread started, I said that a release is generally needed when using someone's likeness to promote goods and/or services.  I did not comment on whether "portfolio use" triggers this need.

The reason I avoided commenting is that the rules vary by state, and there are many areas of the law that have yet to be worked out by the courts.


Now let's get to your position.  You have presented a rational and reasoned criteria for determining when a release should be used.  Unfortunately, you have based your reasoning on what you believe are the goals of the law, and not the letter of the law.

The need for a release is based on the letter of the law, not the spirit of the law.

For instance, you might decide to hire me to take a family portrait (you, your wife and kids).  Assume we end up with a fabulous family portrait.  It's so good, that I decide to take out a half page ad in the Sunday paper containing that image along with the text "Michael's Family Portraits - Get yours today.  Bring this ad in for a 20% discount".

I am presenting your image as a sample of my work.  I don't explicitly state that you endorse my services, but the implication is that you thought enough of me to hire me.

Do I need a release?  I could make the argument that this the image is presented merely as a "sample" of the work I produce.

The answer is that state law prevails.  In many states I would absolutely need your permission as the image appeared in an "advertisement" for my business.

What if instead of placing the ad in the Sunday paper, I put it on the home page of my web site?  Is it still in ad?  Does it still require a release?

There are many that have claimed that online portfolio use does not require a release.  What criteria should be used for determining if a use is "portfolio" or "advertising"?   Does it make a difference if my state does not limit releases to advertising or commercial use, but requires a release if my business is merely benefiting from the public use of the image?


The bottom line is that there can be a very large grey area between those uses that require a release, and those that don't.   The size and location of that grey area can vary by state. 

I don't think it's a good idea to rely on legal advice from the web, particularly if that person is in a different state.  Remember, should the advice being wrong, you are the responsible party, not the guy who posted online.

The law is complicated.  The rules are not always simple.

Some people like playing it safe, some like a good argument.   

Perhaps I'm just a boring guy.  I get a written release, and then I don't need to worry about whether or not my usage requires one.

Michael Fryd wrote:
Yes, the word "promote" is not clear.    However, some state laws actually use this term.  Illinois 765 ILCS 1075/1 includes "advertising or promoting products, merchandise, goods, or services" as one of the uses which require a release.  Florida statute 540.08 says: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent

Both states add various exceptions for news, etc.

There is no simple phrase that definitively describes all the situations where a release is needed.  There are many phrases that give the general idea ("advertising", "commercial use", "promote goods and/or services") but one should not rely on these phrases as being definitive.  If the law was simple and obvious, we wouldn't need so many lawyers.

One needs to look at that state's laws, and the relevant court opinions.  These need to be interpreted in a legal context, not a common sense one.

studio36uk wrote:
And added to the mix you mention is California's right of publicity statute known as "Cal. Civil Code §3344"

Section 3344 is violated where a person "knowingly uses another's name, voice, signature, photograph, or likeness, . . . for purposes of advertising or selling, . . . without such person's prior consent.
Specifically, the statute provides that "the person who violated the section shall be liable ... in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.... Punitive damages may also be awarded [and the] prevailing party ... shall also be entitled to attorney's fees and costs ."Cal. Civil Code § 3344(a) (emphasis added).These remedies are cumulative and in addition to any other remedies provided for by law.Cal. Civil Code § 3344(g).

And a photographer using an un- consented [un- released] image to promote his own business however indirectly - say, on a website, on flyers, on his business card, and so forth, should pay particular attention to this phrasing: ... the appropriation of the plaintiff's name or likeness to the defendant's advantage, commercially or otherwise,

For a lesson in the practical application of §3344 see:

Russell Christoff v. Nestle USA, Inc. 47 Cal. 4th 468 (2009)
- - - the plaintiff [Christoff] was eventually awarded US$15.1 MILLION!

It seems the agency v non-agency model, and the "industry standard practices," questions are moot. Christoff was at the time a "professional" model; an agency represented model; he was paid as such what amounted to a testing fee getting $250 for the initial sitting but under an agreement that would pay him an additional $2000 commercial use [uplift] fee + his agency fees if, but only if, his image was used [on a product]; Nestle failed to pay the agreed uplift fees. Under §3344 a NON-agency model, paid or even shot TF*, WITHOUT SIGNING A RELEASE / CONSENT, and where their image was then used in the "stream of commerce", e.g. by the photographer for their own advantage in the marketplace, would be in the very, exact, same position to sue as Christoff vis a vis §3344, AT LEAST TO THE EXTENT that the statute provides for minimum statutory damages in the amount of $750.

It seems it does not matter if Nestle did it or you do it as the photographer. If the use of someone's image is one for the purpose of obtaining a commercial advantage even if that use is not strictly a "commercial use" as most seem to be using that term, then the image should be associated with a release / consent to do so. The only seeming difference is in the amount that is at risk. In Nestle' case it was $15.1 million, in your case it might only be $750 - but still beyond pocket change to most photographers. AND, if you are using multiple images of different models where more than one of them wants to "take a bite of yo' azz" that could get really expensive really fast.

And for indirect commercial gain and Internet use see:
Louder and Crowder-Starks v. Compuserve, Inc, et al.., No. BC153274 (Cal. Super. Ct., L.A. County, July 5,1996)

This was a class action. Result? ca. one million bucks in damages!

* The Class settled with defendant CompuServe Inc. for $20,000
* The Class settled with defendant Go Graphics Inc. for $650,000 following mediation.
* The Class obtained Summary Judgment against defendant Schwartz in the amount of $329,250 plus attorney's fees and costs.
* The Class members received a net of approximately $790. per photograph, a recovery above the statutory penalty.

Studio36

This is SUCH a reach in relation to what I was referencing and that is the use of agency test images by a photographer for self promotional use not constituting commercial use. I don't know where to begin.

Michael Fryd wrote:

Let's step back.

When this thread started, I said that a release is generally needed when using someone's likeness to promote goods and/or services.  I did not comment on whether "portfolio use" triggers this need.

The reason I avoided commenting is that the rules vary by state, and there are many areas of the law that have yet to be worked out by the courts.


Now let's get to your position.  You have presented a rational and reasoned criteria for determining when a release should be used.  Unfortunately, you have based your reasoning on what you believe are the goals of the law, and not the letter of the law.

The need for a release is based on the letter of the law, not the spirit of the law.

For instance, you might decide to hire me to take a family portrait (you, your wife and kids).  Assume we end up with a fabulous family portrait.  It's so good, that I decide to take out a half page ad in the Sunday paper containing that image along with the text "Michael's Family Portraits - Get yours today.  Bring this ad in for a 20% discount".

I am presenting your image as a sample of my work.  I don't explicitly state that you endorse my services, but the implication is that you thought enough of me to hire me.

Do I need a release?  I could make the argument that this the image is presented merely as a "sample" of the work I produce.

The answer is that state law prevails.  In many states I would absolutely need your permission as the image appeared in an "advertisement" for my business.

What if instead of placing the ad in the Sunday paper, I put it on the home page of my web site?  Is it still in ad?  Does it still require a release?

There are many that have claimed that online portfolio use does not require a release.  What criteria should be used for determining if a use is "portfolio" or "advertising"?   Does it make a difference if my state does not limit releases to advertising or commercial use, but requires a release if my business is merely benefiting from the public use of the image?


The bottom line is that there can be a very large grey area between those uses that require a release, and those that don't.   The size and location of that grey area can vary by state. 

I don't think it's a good idea to rely on legal advice from the web, particularly if that person is in a different state.  Remember, should the advice being wrong, you are the responsible party, not the guy who posted online.

The law is complicated.  The rules are not always simple.

Some people like playing it safe, some like a good argument.   

Perhaps I'm just a boring guy.  I get a written release, and then I don't need to worry about whether or not my usage requires one.

You're obfuscating a very real distinction in the way you talk about non-released images. There's a real difference between a photographer taking out an ad using images produced for a paying customer where there is no release or general agreement (verbal or otherwise) for any kind of usage by the photographer, and a photographer using images resulting from a test in social media or other promotional materials. They're both unreleased images, but the similarity stops there.

J O H N  A L L A N wrote:

You're obfuscating a very real distinction in the way you talk about non-released images. There's a real difference between a photographer taking out an ad using images produced for a paying customer where there is no release or general agreement (verbal or otherwise) for any kind of usage by the photographer, and a photographer using images resulting from a test in social media or other promotional materials. They're both unreleased images, but the similarity stops there.

No.

I was responding to the suggestion that using an image as an "example" of one's work, never requires a release.  My position is that there are uses that clearly require a release.


As the OP was not talking about hiring an agency model, a discussion of agency models is getting us off topic.

However, the agency model situation does bring up an important point.  People have a lot of flexibility in how they resolve an issue.  Generally, courts only get involved if people can't resolve the issues on their own.

For instance, my neighbor's kid used to have a habit of cutting through my yard when he delivered the morning papers.  Technically, this is trespassing.   Realistically, if I don't file a complaint, the courts won't take an interest. I was unlikely to file a complaint as it would have hurt my social status in the neighborhood. 

Hence he was in a situation where he was legally in the wrong (trespassing), but social conventions made it unlikely that the courts would ever address the issue.

When it comes to an agency model, the question is not just whether you are legally allowed to use her image, but also whether or not the model is likely to file a complaint.  Without a complaint, the courts won't care.  If it doesn't make it to the courts, then it doesn't matter what the court would decide. 


It seems clear that there are contexts where a photographer needs a release in order to use a photo to advertise his business.  There are also contexts where a photographer does not need a release.  There seems to be a lot of disagreement as to exactly where each state draws the line.  If the model doesn't file a complaint, it probably doesn't matter.

Michael Fryd wrote:

Let's step back.

When this thread started, I said that a release is generally needed when using someone's likeness to promote goods and/or services.  I did not comment on whether "portfolio use" triggers this need.

The reason I avoided commenting is that the rules vary by state, and there are many areas of the law that have yet to be worked out by the courts.


Now let's get to your position.  You have presented a rational and reasoned criteria for determining when a release should be used.  Unfortunately, you have based your reasoning on what you believe are the goals of the law, and not the letter of the law.

The need for a release is based on the letter of the law, not the spirit of the law.

For instance, you might decide to hire me to take a family portrait (you, your wife and kids).  Assume we end up with a fabulous family portrait.  It's so good, that I decide to take out a half page ad in the Sunday paper containing that image along with the text "Michael's Family Portraits - Get yours today.  Bring this ad in for a 20% discount".

I am presenting your image as a sample of my work.  I don't explicitly state that you endorse my services, but the implication is that you thought enough of me to hire me.

Do I need a release?  I could make the argument that this the image is presented merely as a "sample" of the work I produce.

The answer is that state law prevails.  In many states I would absolutely need your permission as the image appeared in an "advertisement" for my business.

What if instead of placing the ad in the Sunday paper, I put it on the home page of my web site?  Is it still in ad?  Does it still require a release?

There are many that have claimed that online portfolio use does not require a release.  What criteria should be used for determining if a use is "portfolio" or "advertising"?   Does it make a difference if my state does not limit releases to advertising or commercial use, but requires a release if my business is merely benefiting from the public use of the image?


The bottom line is that there can be a very large grey area between those uses that require a release, and those that don't.   The size and location of that grey area can vary by state. 

I don't think it's a good idea to rely on legal advice from the web, particularly if that person is in a different state.  Remember, should the advice being wrong, you are the responsible party, not the guy who posted online.

The law is complicated.  The rules are not always simple.

Some people like playing it safe, some like a good argument.   

Perhaps I'm just a boring guy.  I get a written release, and then I don't need to worry about whether or not my usage requires one.

I'm going off of a lawyer's explanation of biographical use and it was very clear about portfolio and web use.

For the most part, I'd assume that if you're paying to place the photo in someone else's entertainment content - magazine, newspaper, etc, that it's an ad and you'd need a release. But there are precedents where a release was not needed - the ad for the Philip-Lorca diCorcia's gallery show. So it's realistic that your example with the family portrait might not need a release.

On the other hand if the ad says "The Smith family used me and thinks you should too" there's no question that a release is needed.

Michael Fryd wrote:

No.

I was responding to the suggestion that using an image as an "example" of one's work, never requires a release.  My position is that there are uses that clearly require a release.


As the OP was not talking about hiring an agency model, a discussion of agency models is getting us off topic.

However, the agency model situation does bring up an important point.  People have a lot of flexibility in how they resolve an issue.  Generally, courts only get involved if people can't resolve the issues on their own.

For instance, my neighbor's kid used to have a habit of cutting through my yard when he delivered the morning papers.  Technically, this is trespassing.   Realistically, if I don't file a complaint, the courts won't take an interest. I was unlikely to file a complaint as it would have hurt my social status in the neighborhood. 

Hence he was in a situation where he was legally in the wrong (trespassing), but social conventions made it unlikely that the courts would ever address the issue.

When it comes to an agency model, the question is not just whether you are legally allowed to use her image, but also whether or not the model is likely to file a complaint.  Without a complaint, the courts won't care.  If it doesn't make it to the courts, then it doesn't matter what the court would decide. 


It seems clear that there are contexts where a photographer needs a release in order to use a photo to advertise his business.  There are also contexts where a photographer does not need a release.  There seems to be a lot of disagreement as to exactly where each state draws the line.  If the model doesn't file a complaint, it probably doesn't matter.

Biographical uses and uses that are statements of facts do not require a release.

If someone took a photo that I'd shot and licensed it to a magazine to use on their cover and then I took out a full page ad that showed the photo and had the text saying "I shot this photo and Mr Thief did not" that would not require a release.

Michael Fryd wrote:
However, the agency model situation does bring up an important point.  People have a lot of flexibility in how they resolve an issue.  Generally, courts only get involved if people can't resolve the issues on their own.

This is really the key.

If you're considerate of your subjects, you probably won't ever need a release unless a third party is making it a term of an agreement between you and the third party.

Mikey McMichaels wrote:
I'm going off of a lawyer's explanation of biographical use and it was very clear about portfolio and web use.

Which state's law was the lawyer describing?

Let's take a simple example.  In the waiting room of my studio I hang various photos as examples of my work.  Do I need a release?

The answer varies by state.

In some states I don't need prior permission, but should the model ask me to take down the image, I am legally obliged to do so.

Obviously, if it is a large print, that costs me a lot of money to make/frame, I might want to get a release prior to this "portfolio" use.

While there are general rules of thumb for what requires a release, the specifics do vary from state to state.

Mikey McMichaels wrote:
For the most part, I'd assume that if you're paying to place the photo in someone else's entertainment content - magazine, newspaper, etc, that it's an ad and you'd need a release. But there are precedents where a release was not needed - the ad for the Philip-Lorca diCorcia's gallery show. So it's realistic that your example with the family portrait might not need a release.

On the other hand if the ad says "The Smith family used me and thinks you should too" there's no question that a release is needed.

There are uses that require a release and ones that don't.   The trick is knowing what the courts will do in a particular case.

For instance, what if the ad just said "The Smith family uses me."   Is that enough to require a release?  Is the answer the same for every state?

Remember, the correct answer is not the one that logic predicts, but the one that the court decides.  This means that the outcome is rarely certain.  At best we can talk about likely decisions.

My position is that it is not always clear exactly where the line is.  Furthermore, should the issue end up in court, the court might not agree with you.  If you have a release, then there is no need to worry about this.

Mikey McMichaels wrote:
This is really the key.

If you're considerate of your subjects, you probably won't ever need a release unless a third party is making it a term of an agreement between you and the third party.

This is really important.  If your subjects don't mind you using their likeness, then the question of a release may never be an issue.

The key is that you need to consider not just how the model feels today, but how they will feel in the future.  Suppose you shoot a topless model TFP.  You post the images on your web site.   Your business takes off, and you start making a lot of money.   A few years down the road, the model marries an attorney.  She applies for her dream job, but gets turned down because her prospective employer find your topless photos of her online.  Her lawyer husband blames your unauthorized use of the images for his wife not getting her dream job.

I don't know about you, but I would feel much happier if I had a written release documenting that I was allowed to post the images online.

Let's make it a bit more interesting.  You take a sexy photo of a woman's back (her head is turned so you can see her face).  She is wearing only a string bikini.  You Photoshop out the bikini, so that it appears she was naked when the photo was taken.  Nothing shows, however it appears she was nude in the studio.  You post this to your online portfolio.  The pictures turn up, and the woman gets fired from her job as a school teacher because she posed nude. 

I don't know about you,  but I would feel more comfortable if I had a written release that allowed me to edit and alter the images.

I recently shot a model, and later found out that she has serious psychological issues.  Legally, she is competent to sign a contract, but on an emotional level she has severe mood swings.  She can think you are her best friend today, tomorrow she can hate you, and then she is back to best friends.

On days when she thinks I am the devil, I am glad I have a release.  On days when she thinks I'm her best friend, it doesn't matter whether I have release.



There are various issues here.  They are related to each other, but are separate questions:

1) Given the context of the usage, does your state require a release?  Is this something that's clearcut, or is it a grey area?

2) Can you get by without a release, even in those situations where the law says you need one?

3) Are you better off with a release or without a release?