April 26, 2018
Ask an Agent is a regular monthly feature answering your questions about the business of photography – the photography industry’s first Agony Aunt!
If you have any questions you’d like to ask a photographers agent please send them to firstname.lastname@example.org. Questions can be on anything to do with the photography business, such as photoshoots, marketing, professional practice, pricing, contracts, legal stuff – anything.
Dear Ask an Agent,
I’m shooting a band next week and I wondered if I should get a model release signed. I was thinking, what if I shoot the band’s portraits, then in a year say, they hit the big-time and I get contacted about using the photos for an editorial publication, which I can then charge to use said images?
Thanks for your question. It’s a very interesting one actually as it raises a number of other points for consideration which I will now aim to tackle!
If an image is just being used editorially, the general industry guidelines are that you don’t need a model release. It’s only if you wanted to sell an image on for commercial use people usually get a release signed. When photographing people one needs to be aware of certain potential legal issues however. A person is protected by law if an image of them ends up being used in a defamatory way or in a false light. So for example if you use an image of a vegetarian to promote meat and they haven’t signed a model release agreeing to this, you could be in trouble. If the band hit the big time, it’s unlikely the images would be used in anything but a positive or true light, so it’s unlikely this will ever be an issue and I’m not suggesting it will for one moment, just explaining the main reason for model releases.
Having said this, there’s no harm in getting a release signed with the band agreeing that they give their consent for the images to be used editorially (worldwide, in perpetuity) plus also for your own self promotional use. Then, even though you wouldn’t be doing anything that isn’t the industry norm by selling the images to editorial publications, at least it’s all been agreed and clarified upfront, which is never a bad idea! I don’t think it’s necessary for the band to sign a release saying they will allow you to sell on the images for commercial/advertising use too, and I doubt that this is your intention. Anyway, if you did, I think it would be ethical for the band to be remunerated if a brand is using them for endorsement and I’m sure you’d agree.
What you should also bear in mind though – and we gave advice to a photographer on exactly this situation not that long ago – is that you need to be very clear with the band about what they themselves can and can’t use the images for. This photographer in question had taken some pictures of a band, they did indeed ‘hit the big time’ and used the images on their album cover and in all associated materials to promote the album plus a world tour! They assumed they could use the images for whatever they wanted, not understanding the photographer owned the copyright and needed to agree (and charge) for this usage.
So, in the light of this, it would be wise to prepare a mutual agreement in writing of the intended (and limited) usage of the images by both parties and include the fact that you ,as the photographer, retains the copyright and any usage above and beyond that which has been agreed, needs to be negotiated.
I would imagine the band might want to use the images for their own publicity at no extra cost, and I think this is reasonable, especially as I imagine, you will be using the images of them to promote your own photography. But using the images for, say, an album cover, merchandising or a world tour is a completely different matter. (Unless of course they paid you very handsomely and for this purpose specifically) It’s up to you to decide what you feel comfortable with. If the band aren’t paying you and are just doing the odd local gig, and it was your idea anyway I think it’s acceptable they can use the images to promote these gigs. But if they do become really successful and go on a world tour and make a fortune, then it’s only fair that they pay to use your images. You retain the copyright so it’s your call. People don’t generally set out to be exploitative but problems can often be avoided if intentions and expectations are communicated clearly initially.
Hope this helps and makes sense. As I say, your question has thrown up other things I felt worth mentioning for consideration aside from model release; especially copyright, usage licences, and also just getting agreements and expectations with third parties clarified in writing and upfront from the onset- whether that’s the people featured in your images, or clients, or others that you work with. Then you’ll always have something to refer back to should issues occur.
Whether you’re a creative director or a student, a photographer or a designer, an art buyer or an assistant, if you have any questions you’d like to ask a photographers agent please send them to email@example.com and we’ll answer as many as we can!
We reserve the right not to enter into ongoing correspondence.
We reserve the right not to answer all questions sent to Ask an Agent.
Please state whether you would like to remain anonymous.
This advice should be taken as a guide only.
Lisa Pritchard, LPA and guest bloggers take no responsibility for any omissions or errors.
The images used in this article are for illustrative purposes only and do not necessarily correlate with specific facts or examples cited in the text.
Please seek professional legal advice should you require it.