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Monday, December 9, 2013

Always Get A Model Release

A common thread in the photography community is that one should when photographing people, always get a model release. In the USA the photographer holds most of the important rights to a picture, but the model holds a small, specific, collection of rights unless those rights are given away. Thus, the normal process is to have the model sign those rights away in exchange for either nothing, or something trivial. This is the standard: That the model should not have any rights whatsoever to the picture.

The legal situation is part of the general collection of law surrounding copyright of photographs. Generally speaking, the default is that the photographer gets everything and nobody else gets anything. Since there are a few lacunae in this coverage, it is deemed necessary to fill those in with a model release.

This is, frankly, silly. It's wonderfully convenient for photographers, and since photographers are used to the situation they will of course create furor and outcry at the notion of taking away their undeserved free stuff. Still, this is a massive giveaway to photographers, for no particular reason. As far as I can make out, when copyright was being sorted out there was a notion in play that someone should get all the rights, and the decision mas made -- narrowly -- to make that someone be the photographer. And here we are.

This speaks to the problems of photojournalism.

W. Eugene Smith, certainly one of the luminaries, produced an astonishing photo essay about Minamata. He portrayed the ruined people of Minamata sympathetically, but with a profoundly revealing eye. Neither the viewer nor the subjects were spared much. In this project, he took from, he used, he exploited his subjects. The pictures belonged to Smith, and to nobody else. However, he kept up his end of the photojournalist's bargain by telling the story, telling truth. He did not hold these pictures closely, he spread them for the world to see. In doing so, he literally changed the world with those pictures, to better the lives of the people.

Ultimately, Smith's wife gave up the copyright to the most famous and intimate of those photos to the family of the (now deceased) subject. Smith's wife recognized that, legalities aside, the people in the picture have some moral rights, which ought to be respected. This, even after Smith had kept his side of the bargain of photojournalism. He had, in a sense, bought and paid for the rights according to custom, and still his wife reverted the rights to this picture to the subject.

We operate with a split personality, here. On the one hand, our society continues to hold on to vestigial ideas about the rights of the subject, we hold on to the idea that the photograph takes, that photographers do not get a free ride, do not deserve free rights to everything. If you don't believe me, go take pictures of strangers' kids for a while and see what happens. On the other hand, we simultaneously hold the bizarre notion that the photographer, properly, holds all the rights to every picture taken, regardless of subject, and that the photographer is rightly empowered to do anything whatever with those pictures.

Perhaps one should consider a more generous model release. Some people already use quite generous ones, by current standards.

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