Rachel Brenke is the lawyer & photographer owner of The Law Tog, a site is dedicated to providing legal, marketing and biz advice to photography businesses with maximum efficiency and results. Through business consulting services and her published book “The Laundry List: A Mother’s Guide to Balancing Family and Business,” Rachel provides guidance in practical ways for photography business owners to succeed. Check out Rachel’s Facebook page.
The phrase “the client is always right” just may be going out the window as more of society seeks to push the boundaries of what they can ‘get’ for their money. As business owners we have to balance customer service and standing-our-ground to protect our business.
This balancing act can be tiring and have detrimental results if not handled correctly. However, a major client concern that carries a legitimate argument revolves around the publication of minors on the Internet. In this digital age there is a very real worry for parents as photographs are placed on the World Wide Web with little to no control over who views or possesses these photographs. Despite photographers taking measures to watermark and right-click-disable their websites, intellectual property thieves and child predators possess tools to get around these precautions.
As a portrait photographer having a portfolio is a necessity but the question to ask is … at what cost? On the flipside, why shoot if you’re not going to be able to share that session and gain new clients? This situation puts photographers between a rock and a legal place.
Whenever a photography session takes place that is a private contractual relationship and the intention is to use the pictures on website, portfolio, studio samples or any other marketing avenues the photographer should obtain a signed model release. Unless it is otherwise written in the contract in similar language, if the photographer does not obtain a signed model release the photographer is unable to use the photographs for marketing or portfolio use until such release is obtained.
It is always best practice to get it before hand. In this case, with clients insisting on not publishing photographs of minor children on the Internet, it is important for the photographer to balance potential word of mouth against whether it is worth turning down the session due to the inability to use the photographs publicly.
#1 Eliminate Model Releases – No Questions Asked
Yes, photographers need portfolios, however, at what cost? This is a personal business decision each photographer will have to make. A good rule would be to err on the side of the client’s wishes, as they are legitimate concerns, honor the elimination of a model release to inspire future word of mouth clientele.
#2 Charge More For A Session Without A Model Release
An alternative would be too charge more for sessions that are not accompanied with a signed model release to compensate the photographer for potential lost marketing that could have occurred with the publication of the photographs.
#3 Written Agreement To Not Divulge Names, Faces Or A Combination Of Both Names & Faces
The last option is a middle-of-the-road that requires an amendment to the model release by agreeing in writing to not divulge identifiers such as names, faces, personal characteritistics or a combination of the above. This can be partnered with a discretionary fee to the client or not.
Bet you thought I’d give you the be-all and end-all answer, huh? Sorry.
This is something that each photography business owner has to weigh and determine what is best for their clients and business. These are just few of the options available to photographers that can respect the client’s wishes, photographer’s or both.
Feel free to leave in comments any other ways you have found to successfully navigate this precarious area of client management and the law!
“If the photographer does not obtain a signed model release the photographer is unable to use the photographs for marketing or portfolio use until such release is obtained.”
Learn more about the model releases Rachel offers on her website here.
Good read and I like the options you gave. I do something similar to the middle-of-the road approach and have a clause that clients can opt to have their online gallery remain password protected and then another on that says they do not want any publishing of photos online. I still have them sign a release for portfolio use during in person consultations and there are no names associated with the images. I have had clients take advantage of one or the other or both. It took a lot to come up with those and my policies may change in the future, but it seems to be working.
Donald Giannatti says
I left and deleted a message.
I do not agree with this article at all.
Photographers show work product as a necessary part of being in business. It has been upheld by several State Supreme courts (Fl and NY I believe) as being the right of the artist to show the work they create.
Third party endorsements are not allowed.
Editorial use IS allowed without a release (although many publishers require it because of the extreme over-lawyering these days) but many stock houses still do not ask for a release for editorial.
Work-Product, the work a photographer creates is covered as editorial as far as I know. I have had several articles printed by major magazines running photographs of mine to show my work… none needed releases.
I am quite skeptical of the information here, but since I am not a lawyer, will not challenge the attorney. After all, interpretations and all.
But my question is this…
With all the out of work attorneys out there, how come no one is going after the billions of non-model released photographs on Flickr/500PIX/G+? Seems to be easy to do a radio ad…. “does your photograph appear on Flickr and you have not signed a release? Call 1 800 234 4567 and get compensated for this crime.”
Seems to be a slam dunk.
Rachel Brenke says
Thanks for leaving a comment! Without going into an entire hornbook on privacy and copyright law we can look at this in separate buckets. One bucket is the use of photographs (which triggers privacy of client) and the other is the creation of the product (which triggers copyright). A release isn’t needed to create the photograph but it is best practice to have it. Note that I did say you should obtain- since you are correct- photographers end game is to have a portfolio. However, the two buckets are separate and a photography business owner can have one bucket (copyright) upon creation but can electively decide to sway away from the second bucket for customer service. The great thing is- a release isn’t required to create. Only to release or use. If they were required to create then this article would be completely moot and leave us photographers up a creek with many private individuals who refuse to have web presence- whether due to personal choice or occupational hazard.
I hope that clears it up a little and I appreciate your comment in case there were others that were confused. No release needed to create but release needed for use.
The best way I always advise photos is to consider the detriment of forcing the hand of a client (or using photos against permission) versus the potential word of mouth than can open streams of referrals. Of course as photos we don’t want to publicize that we CAN not publish them electively but always to reserve that as an option to use as customer service to preserve clientele and word of mouth!
Rachel Brenke, Esq.
Rachel Brenke says
So glad you’re finding a middle of the road option! Great one to add to the list!