More on model releases…

A photographer has created a photo essay of dancers….children and teen dancers at a local dance studio. Now he wants to put them on display in a gallery. What can he do if he doesn't have model releases? Can he exhibit the images, and sell them? Can he even exhibit them?

There are several answers to this question, depending on whether you live in the USA, China or Iraq. I choose to be facetious because many American photographers, in these times, seem to forget that they still have First Amendment Rights. There are enough discussions exhibiting confusion about model releases in the Kracker Barrel Archives to fill several volumes. All of it, like all legal matters, is open to interpretation.

My comments on the subject of model releases are always directed to the use of photos in editorial situations.

Will it be used in a book, newspaper or magazine? How will it be used? Is it a sensitive subject or not?

Will the publisher be the entity who would be the target of a legal case?

A community art show or photo exhibit is not unlike your local newspaper publishing a feature photo in its Home Life section, or on its website. And in my forty years of observing editorial stock photography it's very rare that a parent (or the child) doesn't enjoy seeing their child's picture in an exhibit or published in a magazine or book. Another point, no attorney on a contingency basis would ever accept a case where real invasion of privacy is of concern.

YOUR PROTECTION

Our USA First Amendment covers this issue.

Frivolous lawsuits of this nature used to happen, it seems, more often back in the 70's and 80's. You'd think it would happen more now-- what with all the sensitivity and fear that's prevalent in our society these days. It may be that there are fewer instances -- that many stock photographers have become gun-shy. They believe that they will get some "grief" from parents if they photograph children in public, don't get model releases, and then exhibit the photos at a show.

What's the result if stock photographers, photographing in the area of child development, domestic violence, social issues, child abuse, child safety, child welfare, etc., don't feel free to capture poignant scenes of what's happening in their community?

What happens is, the other side wins. The pictures are not published and the corporate or governmental interests who would wish someone didn't expose their blemishes are happy.

Eugene Smith, Henri-Cartier Bresson, Margaret Bourke-White, never walked around with a model release pad in their pocket.

I repeat again, it's the publisher, not the photographer, who gets in trouble if an irresponsible art director uses a picture in an insensitive way in the magazine's layout, in a way that distorts or misrepresents the original nature of the picture. In other words, say a neighbor's child's picture is used in a story about teenage gambling. Then a parent should rightfully take that publisher to court, and win - if the implication indeed is not true.

THE GOLDEN RULE

This would usually hold true also at a neighborhood art show or photography exhibit. When in doubt, the Golden Rule should apply - - "does this picture embarrass a friend or neighbor?" If it does, the photographer might better choose not to exhibit it.

True, there are always extenuating circumstances, and different interpretations of the law in different parts of the country. You'll sometimes find security guards forbidding photographers to take pictures in their shopping mall. Well, it so happens that's where there's excellent subject matter on the subject of community life. For a security guard to attempt to take a photographer's camera, or even hassle a photographer unnecessarily, calls for a phone call to the police on the part of the photographer. The guard could be arrested for attempted theft if he tries to impound someone's camera..

But to be timid about photographing a child in public because of stories that a photographer could get in trouble, is to deprive the viewing public of important insights and information.

Editorial stock photography is not easy. If it were, everybody would be doing it. Photographers, Internet gossips, and my fellow photo columnists continually perpetuate the myth about model releases and all the trouble a photographer can get into when taking pictures in public. But when asked for follow-up documentation, it's never forthcoming.

Photographers should photograph in public freely. They should exhibit their work and sell their images in the spirit of "informing the public." No judge in a court of law is going to fault a photographer for that. It's a photographer's right. Even more, it's the duty of all of us to protect that right, by challenging those who would jeopardize it.

Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35^th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com.

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