Do I need model releases for this?

I'm a member (and founder) of our local Miata club. I've shot a LOT of images of members and their Miatas over the years. Yesterday, our current club president was contacted by Mazda's ad agency. They referenced one of my photos that's displayed at the club's website. They said they are potentially interested in commercial use of the photo and they wanted my contact information. This is the photo:

I'm not a professional photographer, but I did once stay in a Holiday Inn. That, plus reading countless threads here about releases for commercial use, would lead me to guess that Mazda, not you, would need releases from everyone in the photo who is even remotely recognizable if they wanted to use the photo for commercialization.

Mazda, in fact does need the release, not you. Unless you are using it for commercial purposes. However, Mazda may decide not to use the image unless you have model releases.

It doesn't matter if the people can be identified by me or my wife, or by their friends. If they can be recognized, a release is needed.

I'm not an attorney and only think I know what I've read, here and on other sites, about the subject contained in the post. This opinion doesn't really matter, and may be completely wrong, despite the apparent supreme confidence with which it was posted.

Yes. For commercial use, a model release is needed from each person in the photograph that can be recognized.

I have a secondary question. What about if they can only be recognized because of the vehicle? ie, the image may not show a recognizable rendidtion of his face, but - "I don't know what John looks like because I never met him, but I know he drives a yellow Miata and is a member of this club, so that must be him."

This shouldn't be the case. Another thing is other unique identifiers, like scars, birthmarks, tattoos, etc.
But they have to be truly unique.

Personally, I wouldn't worry about a model release for that shot. If it was going to be a web size image or in print like in a magazine or brochure....I wouldn't worry. You cant recognize anyone in that image. That could be my mom or dad or my wife and I couldn't tell from those faces.

If your blowing it up larger then I would say you need one because you will be able to see the faces better......Mazda's ad agency might want model releases regardless.

How about this:

"Hey guys and ladies, there is a chance you and your car could make it into official Mazda marketing materials. This will only happen if I can manage to get a signed release from each of you, and I have to do it pretty quick. I will be in touch shortly! Thanks, Joe Photo"

Otherwise, the value proposition to Mazda is not so strong if it reads: "Here's a photo I will sell you, and here are the names of all the individuals YOU will have to contact to get model releases from and they MAY or MAY NOT sign them for you meaning the photo could actually be worthless"

Kronie wrote in post #15869699
Personally, I wouldn't worry about a model release for that shot.

It is not about the ability to recognize people. By getting permission in form of a release you protect yourself from legal actions.

There are laws that protect people's privacy (name, likeness, etc) and which require the subject's consent to use the image commercially.

Thanks, everyone! Getting a release from most of the people wouldn't be terribly difficult. We hang out with a number of them even outside of club activities. In fact, a few of them will be in our home tomorrow night. But there are several people that I don't know, including a few that, frankly, I can't recognize because they are so far in the back.

I'll wait and see what Mazda's ad agency has to say. I think how they plan to use the image is important.

Mark

push process wrote in post #15869755
How about this:

Usually the photographers have to provide releases for their own photos, so I doubt Mazda will be collecting them.

I think sending the message is a good idea, maybe attaching a release form can help facilitate the process, since people will be able to familiarize themselves with the document before they sign it.

Dmitriy wrote in post #15869852
It is not about the ability to recognize people. By getting permission in form of a release you protect yourself from legal actions.

There are laws that protect people's privacy (name, likeness, etc) and which require the subject's consent to use the image commercially.

I think it is about the ability to recognize someone. If you cant recognize the face then a judge wont either.

Also if the OP sells this image to Mazda (or their ad agency) and a year from now someone sees themselves in an ad in car and driver, and they are sure its them and they are upset and are going to sue....

....who are they going to sue? The photographer? If they can even find his name somewhere....Or the multimillion dollar company? The Lawyer is going to chase the money and that is the larger company, every time.

Its moot anyway because the ad agency will want releases from everyone.....but if they didn't ask then I would sell.

You're right, it is one possibility.

But it is not the face only. If someone claims he is depicted in the photo and can prove it (which is very easy in this case), the company used the images may be liable for all legal costs for the use of his/her likeness — and then can sue the photographer.

P.S. Multimillion dollar companies get sued quite offen.

If it were me, I wouldn't make it an issue. I would give them the photo and tell them that I do not have model releases for the people in the shot. That's the extent of your responsibility. You are not a lawyer for Mazda. Let them decide. They may come back to you and ask for releases. You have the convenience of the club in finding the subjects.

Otherwise, no judge or jury is going to be able to make a connection between any of the tiny images of people in the photo and the actual person even if he or she were standing right in front of them. That's my judgment, which doesn't count of course.

I had a similar experience some time ago. I was contacted by a graphic artist on behalf of a large corporation. There was identifiable property as well as a person in the shot. I got a model release and a property release. The graphic artist thanked me and said that they weren't necessary. In the end, they processed the shot in such a way that the subject and property were generic and could have been anybody. Got my 70-200 f/2.8 because of that deal. The owner got an 8x10 of himself on his ice boat.

Dmitriy wrote in post #15870012
You're right, it is one possibility.

If someone claims he is depicted in the photo and can prove it (which is very easy in this case), the company used the images may be liable for all legal costs for the use of his/her likeness — and then can sue the photographer.

Can they? Think about it. An ad agency bought an image from a photographer without a model release. The ad agency then used the image anyway. The ad agency was then sued by the person in the picture, lost and had to pay out "X" amount of dollars.

Then the ad agency went after the photographer to recoup the losses from their own mistake? I mean sure you can sue anyone but any judge is going to laugh that right out of the courtroom.