Release question.

[timmyquest]

I'm thinking starting this next sports season, highschool football, girls vollyball/swimming etc. Maybe i want to start doing the whole sell pictures of your children thing.

I want to photoshop myself some sort of ad that i can email, post online, print out and staple in places etc. I want to use some pictures i've taken of some kids playing sports. I'm wondering if i'll need a release for these. These arnt the photos i'll be selling, but (hopefully) they'll aid me in getting photographs that make me money.

It's not a matter of a willingness of the parties it's just a matter of tracking them all down and getting them to actually sign it.

[SoCal69]

You will need a release for that use, assuming the persons are recognizeable.

[maderito]

You will need a release for that use, assuming the persons are recognizeable.
Why? if the pictures aren't actually being sold for commercial purposes other than to the individual and/or their parents?

[robertwgross]

Why? if the pictures aren't actually being sold for commercial purposes other than to the individual and/or their parents?

If the pictures are being used for commercial purposes, then a model release is important. Use would include advertising, which is what was asked.

---Bob Gross---

[meow]

That is commercial purposes and all parents aren't all the kids' parents. Uhm, something's wrong with that sentence. :? :P

Dunno about U.S. laws but I think they are harder than ours concerning this. Here a release would be needed to play safe.

[SoCal69]

Why? if the pictures aren't actually being sold for commercial purposes other than to the individual and/or their parents?

If the pictures are being used for commercial purposes, then a model release is important. Use would include advertising, which is what was asked.

---Bob Gross---

Yup... using a photo in advertising constitutes using a photo for commercial purposes. i.e., it is being used in commerce. For example, Pepsi couldn't use a picture of Kobe Bryant in a Pepsi ad without his release (which would cost a fortune). Even though they are not selling the photo, they are using it for a commercial purpose... to promote a product or a service, which is exactly what TQ proposes to do.

[maderito]

Why? if the pictures aren't actually being sold for commercial purposes other than to the individual and/or their parents?

If the pictures are being used for commercial purposes, then a model release is important. Use would include advertising, which is what was asked.

---Bob Gross---

Yup... using a photo in advertising constitutes using a photo for commercial purposes. i.e., it is being used in commerce. For example, Pepsi couldn't use a picture of Kobe Bryant in a Pepsi ad without his release (which would cost a fortune). Even though they are not selling the photo, they are using it for a commercial purpose... to promote a product or a service, which is exactly what TQ proposes to do.

So, if you post pics without releases on, say PBase.com, and get offers from someone to do business because they "like your work", and you accept the offer, are you liable?

[IndyJeff]

So, if you post pics without releases on, say PBase.com, and get offers from someone to do business because they "like your work", and you accept the offer, are you liable?


Absolutely. You are selling that image which constitutes a commercial use and a release would be needed. Lets say it was a kid with a big bright white smile and you sell it to a dentist who hangs it in his office. One day the kids aunt happens to go to that dentist. You are in trouble because you sold that image without a release. If the dentist used the image for a ad that was mailed out to 50,000 homes you are in even more trouble because you exploited that image for commercial advertising use without a release.
A local ad agency called me wanting to know if I had any images of the F-1 race here in Indy. I told them, sorry but none I could sell to you. I missed out on a good paycheck but saved myself a big lawsuit judgement bill.

[maderito]

So, if you post pics without releases on, say PBase.com, and get offers from someone to do business because they "like your work", and you accept the offer, are you liable?


Absolutely. You are selling that image which constitutes a commercial use and a release would be needed.

I readily understand that.

The question I raised concerned "advertising." Do website photos constitute advertising (and thus require releases) if the pics on the website (intentionally or not) generate business - even though the pics you eventually sell are not specifically on the site?

[SoCal69]

If the photos are used in an advertisement then you will need a release. In other words, your site in some way promotes a service or product. If, as many of us do here, you are simply posting pictures to illustrate some idea, technique, shooting style, subject, etc... then you may not necessarily need a model release (although legally you might still need one). The mere fact that someone likes your work and asks about prints for sale does not mean you are advertising. Of course, any print you sell better have a release.

I'm sure others could provide better information, but this is how I see it.

[IndyJeff]

Maderito, good question and it would be a grey area, I think. My initial answer would be if a certain image was used, how was it used on the web?
If it was in a gallery along with other images and was for sale, then no a release wouldn't be needed until the photo was actually sold. Now if it was used to intice viewers to open the gallery or solicit business then I would say it was being used as advertising.
Do you have a specific example? That would make it easier for me to give you an answer. Of course you should consult with an attorney not take the advice of some nut on the internet as "the law".


Hypothetical situation here,

You have a picture of a kid playing baseball, actually making a diving catch. You think it is a great shot and have it as a lead photo on your youth sports gallery page. The headline reads, "Maderito's youth sports photograhy, capturing the most exciting moments in youth sports."
Then below it tells about contacting you to schedule coverage of youth sports and other information a buyer might be interested in. That image would clearly be an advertising use and a release would be highly suggested.

Now the same image is the clickable link to view a gallery within your site of the Braves vs Cubs little league game from Springfiled Little League. That may not be considered as an advertising use but as a lead photo for that gallery. Since obviously you would have had permission from the league to shoot the game, and it was a public event that was going to be made available for sale to the general public that image would be considered as a identifing lead to the gallery not advertising.


On my gallery, indysportphotos.com (http://indysportphotos.com), of the 3 rotating photos, the 2 baseball ones are of my nephews and were used with permission, the one of the guys on bikes I do have signed releases for. The one of the kid sliding into 2nd base may not need a release because neither kid is "easily identifyable". I got the releases because I wanted to cover myself incase any legal matters would arise. Even tho the guys on the bikes said they thought it would be cool to use their images for the rotators on my site, I got a signed release. If later down the road one of their mothers saw it and wanted to sue me for using their babies images without compensation, even tho both were over 18, I have a signed release. Sorry mom, try again.

In legal matters, it is always better to do what you think you may not have to do now because you never know what may happen down the road, so protect yourself now.
The way I get people to sign a release, I tell them if a magazine would ever be interested in the image they may not use it without a signed release. The thought of their picture being in a magazine doesn't even allow them to think about asking for money for using it. Altho I do tell them if it is ever used I will notify them so they can get a copy of it.

[maderito]

Chuck - Thanks. I was (and still am) thinking like you are -- with that little bit of concern and doubt.

IndyJeff - A very thoughtful and helpful reply. Needs a bookmark. BTW - love your work! Can I hire you to take some pics of the kids?? :) :)

[IndyJeff]

Maderito, thanks for the compliment on my work. Yes you could hire me to shoot your kids but, the distance traveled may make it a little expensive LOL But what the hey, you can't take all that money with you when you die right?

[SoCal69]

If it was in a gallery along with other images and was for sale, then no a release wouldn't be needed until the photo was actually sold. Now if it was used to intice viewers to open the gallery or solicit business then I would say it was being used as advertising.

I'm not sure I agree with the first part of this. I believe that the mere act of publishing it in a gallery where it can be viewed while it is being offered for sale constitutes a commercial use of the photograph and would require a release.

Now the same image is the clickable link to view a gallery within your site of the Braves vs Cubs little league game from Springfiled Little League. That may not be considered as an advertising use but as a lead photo for that gallery. Since obviously you would have had permission from the league to shoot the game, and it was a public event that was going to be made available for sale to the general public that image would be considered as a identifing lead to the gallery not advertising.

Again, I believe that if you are using the image as a lead-in to a gallery where images are for sale, that constitutes a commercial use and would require a release.

[maderito]

SoCal69 -- Didn't you have an earthquake in your neighborhood a few years ago? :shock: That would make me cautious about everything too.

[SoCal69]

SoCal69 -- Didn't you have an earthquake in your neighborhood a few years ago? :shock: That would make me cautious about everything too.

Absolutely... BUT, I have seen way too many frivolous lawsuits. Whether you have the legal right to do something or not does not mean you won't end up in court over it. I would rather just have the release just in case over vindicating myself and my principles in court (after tens of thousands of dollars in fees and costs). If you are in a gray area, play it safe and get the release!

[IndyJeff]

SoCal I don't think a court could find the image as commercial use unless it had been sold, if no finacial transaction had taken place to display the image. Of course there is no definitive answer that covers all the bases. Maybe a case search thru some law library might shed light on that.

Think about all the event photographers that display hundreds, if not thousands, of images on their website that are all for sale. Is a release required for each and every person in all of those images? I think the court may find that would place an undue burden on the photographer and restrict his trade. Since the prints are mainly sold to the subjects of the images I don't think a release would be neccessary as the images, while accessable and for sale to the general public, are not intended nor advertised to the general public for sale.
If the court found against the photographer, I think the demand to remove the image from the gallery would be the decision without monetary compensation.

On the second part about the lead in to the gallery, I guess I didn't make it clear as to how I intended it to read. The image wouldn't necessarily be a lead in for the entire gallery of all events displayed but, just the one particular gallery where that image was displayed along with others from that event. Instaed of just words to describe the gallery a picture along with words would let the shopper know what was contained within the link.

On my site, I have 3 photos which rotate. that would be considered as a commercial use since it is giving a sample of all galleries displayed on the site and would be considered as advertising. However none of those images are for sale.

[SoCal69]

Jeff:

I can see the point you are making. It just seems to me that if the photos are being used for for commercial use (i.e. a website which is intended to promote the sale of such photos), the law would require a release. On the other hand, I see your point that the mere presence of a photo for sale should not require a release until that photo is sold. It just seems to me that having a photo on a website designed for purposes of selling photos constitutes a commercial use. It seems like a pretty gray area to me.

On the other hand, since you are in the business, and I am not, you likely know more on the subject than I do. Secondly, the laws may be different where you are. In the end, I am just stating an opinion which is based only on my interpretation of the laws as I understand them. As is often the case, I could very well be wrong :P

[IndyJeff]

SoCal it is my understanding that the sale constitues a commercial use. So if no sale, no commercial use. Just merely offering it wouldn't constitue a sale would it? Or would intentions come into factor?
With the web being in play much more than it was years ago, my thinking may be outdated and unfounded, as it were.

[stopbath]

SoCal it is my understanding that the sale constitues a commercial use. So if no sale, no commercial use. Just merely offering it wouldn't constitue a sale would it? Or would intentions come into factor?
With the web being in play much more than it was years ago, my thinking may be outdated and unfounded, as it were.
If you are offering it on the net, you are in fact publishing it. A release (if needed) should be obtained prior to publishing (preferably at the time of shooting the images.)