Model release (or lack of) liability?

So I've been shooting a weekly concert series that is free to the public. One of those downtown, come out and have a couple of beers after work things.

Technically I work for an ad agency who in turn works for the property owners. The property owners sell beer on site but that is basically to just recoup the cost of the band etc. Their main goal is to increase foot traffic and awareness of the two nearby restaurants they also own.

I found out yesterday they are using my pics in advertisements. I'm okay with it, but going into this I though get they were mostly interested in band pics for social media. I saw the ad and the photos were probably 60-70 percent attendees.

Of course there are no model releases signed.

Now the guy at the ad agency has asked me to take pics of every hot chick (his words ladies, not mine ) at the concert.

I guess he doesn't know about commercial use.

Anyway, can I be held liable? Can he? The venue and promotors? Or is it a simple matter of possibly receiving a cease and desist and pulling the ad?

Rights of Privacy and Right of Publicity laws vary by state.

The rest is a general opinion, and I'm not a lawyer:

Legally, the responsibility almost always falls on the advertiser/publisher to have a model release in hand. However, practically speaking, the photographer usually obtains the release and passes it on to the advertiser.

If "this guy at the ad agency" really doesn't know about how Right of Publicity works for commercial use, he doesn't need to be in that job. However, my guess is that he's playing the "hope we don't get caught, or if we do get caught, they don't care" game. Sounds shady to me.

If you're still in NC, it seems that there aren't any state statutes, so you (he) might be able to get away with whatever you (he) want? Maybe your guy DOES know how this game is played after all.

http://www.dmlp.org …olina-right-publicity-law

Double checking with a lawyer in your area is probably your safest bet, however my understanding is that in most areas the photographer isn't liable for the issue unless they've misrepresented themselves in some way. (Such as falsely claiming the releases are all in order and that the end user can go ahead and use them without any problems. Kind of a can of worms as to whether the photo subject can go after you directly, or whether you're open to having the company do it after the fact, or even open to both parties going after you at the same time.)

Personally I would be rather tempted to get something in writing from their company rep you deal with stating that they are aware of the issue and will agree to handle any needed paperwork, or at least have a quick talk and make sure everyone is clear on the risks and potential liability, and the fact that you're not responsible for how they're using the images you're providing them.

The fact that the photographer normally collects the releases is mostly a logistical convenience thing, in that the photographer is the one actually face to face with the subject and is in a position to easily get a signature when the photo is taken rather than the end user running around trying to track the subject(s) down and get the paperwork in order.

When you actually need the release can also be murky in some cases. The laws aren't 100% uniform across the board, which is why it is always best to talk to someone who can give you informed local legal advice. What is the local/regional standard for whether someone is considered 'identifiable' and to be endorsing, along with whether an image is considered to be merely documenting an event or actively part of promotion. France for example apparently has some really awkward laws with regards to people showing up in photography, and it doesn't matter if it is promotional related or not.

thanks for the input guys, especially that link nathan. Kind of shocking to know that there is no legal provision for rights to publicity in NC. I used to buy advertising but it was on a regional or national scale, never crossed my mind that I might be able to get away with more within the state.

Hitting the road for the concert right now and will talk with the agency guy about this to see what he thinks. Actually, I know he doesn't think it's an issue, i just want to see if he knows why it apparently isn't an issue.

I would definitely bring this up with him as an issue and I would do it via email, just to make sure that if it goes bad he doesn't try and pass the blame on to you.

he said something to the effect that if 50 percent of the person isn't shown it doesn't matter, and followed that up by saying that it is the problem of the promoter.

I've worked with this guy a lot and know what he is up to. It just so happened that during and after the show I was able to talk with another person that does sub work for him. Pretty solid confirmation that playing fast and loose with the facts is SOP. fun times!

How in the world could you possibly be held liable? You are not the one publishing the images and using them commercially. You are the photographer, and you are allowed to take any photos you want without a model release. Model releases have nothing to do whatsoever with taking photos. They have everything to do with publishing photos and using them commercially.

Tom Reichner wrote in post #17593898
How in the world could you possibly be held liable? You are not the one publishing the images and using them commercially. You are the photographer, and you are allowed to take any photos you want without a model release. Model releases have nothing to do whatsoever with taking photos. They have everything to do with publishing photos and using them commercially.

Because - right or not - when someone files a suit, they name anybody, everybody, and anybody who everybody has ever been associated with.

Right or not, the promoter/publisher/use​r will try to pass the blame to the ad agency, who will try to pass the blame to the photographer. "The photographer told me he had all the proper releases on file" when the photographer never said any such thing.

nathancarter wrote in post #17594177
"The photographer told me he had all the proper releases on file" when the photographer never said any such thing.

But any and every photography contract worth the paper it's typed on has a line that says,

" ______. _________ Photography does not acquire model or property releases for any of its subjects, not does it determine if and when such releases are, or are not, necessary. It is the sole responsibility of the publisher to determine what releases are necessary, and to acquire all such releases."

I have sold (licensed for use) many images with this language in the contract/agreement, and it has saved me many hours and many hassles. Why would anyone license images without such language in place?

Left Handed Brisket wrote in post #17593027
I found out yesterday they are using my pics in advertisements.

This was a bad sign. Weren't the permitted uses specified in advance?

Now the guy at the ad agency has asked me to take pics of every hot chick (his words ladies, not mine ) at the concert.

So some hot chick's boyfriend sees an ad and notices that Chickie went out drinking without him--well, I guess that's her problem, not yours.

The agency guy said a release isn't needed if 50% of the person isn't shown? He seems to be making things up. You happen to know otherwise; why not tell him? I wouldn't want to work with him. It sounds unsafe.

I appreciate all the responses so far. All of this is right along the lines of what I have been thinking too.

This event is in it's first year (this was the 6th show) and is so loosely put together they have already about come apart at the seams. In fact they don't even have all the acts booked. Right now there is nothing on the calendar for most of July but they seem to be moving forward. I kind of go into it each week thinking this will be the last week they do it.

since our original agreement was for social media I only provide them images at 750 px on the long edge. These bands are not even regional touring bands, just super local folks, so much so that it is obvious that half the crowd are parents, family or kids of the musicians. I really don't care about usage rights on 750px images, and see this as more "work for hire"

Like i said above, the guy plays fast and loose with the facts. I've had issues come up working for him in the past and knew full well what I was getting myself into.


did anyone look at the link nathancarter posted above? I know that no one is going to give legal advice on the internet but it sure looks like we are kind of an oddball state when it comes to right of publicity.

http://www.dmlp.org …olina-right-publicity-law in part:

Some thoughts on your situation:

1) Only a lawyer can give you real protective legal advice. "I saw it on the internet" is not a valid legal defense.
2) You need a written agreement with every client that specifies usage. This new use should not be a surprise or cost the same.
3) Your written agreement should also confirm that your client removes you from liability for the use of the photos. Your client can always sue you to protect themselves.
4) A person appearing in an advertisement may still name you in a lawsuit and require you to invest in your own lawyer, even if they have no legal basis to win.
5) Even without a state privacy law, many magazines, newspapers, websites, and social media will remove advertising immediately if there are privacy complaints.
6) Asking permission to take people's photos at an event provides some evidence of consent, were sneaking unauthorized photos of pretty girls does not. In fact, sneaking photos of girls for unauthorized use in advertising is the most likely situation to bring a privacy claim.