Who's responsible for model release - photographer or agency?

I got a request from an ad agency to use some photos for web ads/banners to run for one month nationally with multiple partners (they're still working on final buy details).

This is new territory for me...I've had photos used for editorial use and have had athlete sponsors contact me for usage but never this. Considering they're photos of athletes, I assume the burden would be on me to get a commercial release or do agencies handle that?

Brian

Legally, the advertiser needs the release in hand to use the model's likeness for commercial purposes. The photographer doesn't need the release, as they're not the one using the image commercially.

However, since the photographer is often the one who's directly interfacing with the model, it's usually just simpler for everyone for the photographer to get the release from the model. In this case, the photographer should make sure the release allows the advertiser (not the photographer) to use the image, OR the release is worded in such a way that it's transferable from the photographer to the advertiser.

If the model already has a relationship with the advertiser, then the advertiser can get the release directly from the model. But this isn't always the case - often, the photographer is the middleman, and the advertiser doesn't have any direct relationship with the model.


Source: Internet Armchair Lawyer, Esquire

Thanks for the response. I guess the first step is to see if they have a release. Hopefully so but I doubt it which would mean time to hunt people down on Facebook!

Kim Johnson Images wrote in post #16994272
It would appear to me that unless you explictly waived all your rights and ownership to the Agency, the copyright would rest with you and you should get the release.

Copyright and the release are separate issues.

The agency may not want the image unless you have the release. While they are the ones that must have it, you are likely going to be the one that has to get it. Just make sure it's clearly laid out in your agreement.

Fernando wrote in post #16995038
Copyright and the release are separate issues.

+1 to this.

Thanks all. I informed them that I don't have releases so we'll see what happens.

You informed them that you don't have releases on hand, but if they're interested in licensing the photo ($$$) then you'll attempt to track down the models and get releases? right?

Definitely! Thank goodness for Facebook

It's our responsibility to get the releases.. kind of a CYA; I know some photographers who just plain don't do it and they sell ads. Technically, legally, you need em.. and to be keeping a copy for your own records, and archiving it but, in the super fast paced publishing and ad agency environments it's an afterthought and generally assumed. I get the feeling this agency is small, or just super meticulous. Which is good they ask, because you really should be in the habit of doing it.

I just printed 20 model releases for July alone; I frequently work with ad agencies. Most of them, they don't ask they just assume because it's so routine for us. A few do ask, and confirm.

TLDR: yes, it's our responsibility.

Karl - I think I disagree. I think that agencies usually require the photographer to get a release, but the law seems to require the release of the one actually using the ad (the agency).

Its foolish of them to assume because they (or rather their clients) are the ones that legally require the release as they are using the image. That means they should have a copy in their files. Not doing so is risking a law suit and substantial settlement.