Do wedding guests need to sign a photography model release form?

You publish an awesome wedding feature for one of your favorite couples of the wedding season.  It was a dream with the details, engagement of the wedding party and the venue was to die for. 

The feedback from your audience is amazing with raves and likes. 

Then you get an inbox message from a guest demanding pictures of them to be taken down because <insert their reason here>.

You start to think to yourself – I thought the bride and groom signed the model release so all is fine right? Wrong.  The Bride and Groom can’t sign for their guests.  So you spiral into these questions: “How do I know when you will need a model release for a certain photograph? What about when there are lots of people that could potentially be in the photograph? Do I have to get a release for each one?”

 

Let’s start at the beginning picking this through!

 

What is a Model Release?

A model release is a legal document in which the person in the photograph and the photographer agree to how the image will be used in the future. Releases can be crafted to include a wide variety of information, such as what purposes the photograph can be used for, in what medium it can be used, and even how long the photograph can be used in this way. This agreement allows both the photographer and the person in the photograph protection.

 

Need a model release – snag a lawyer/photographer drafted on here!

 

When is a Model Release Required?

So, when is a model release required? The answer to this question changes based on your unique set of circumstances. In order to determine whether you will need one for your protection you can ask yourself some easy questions:

  1. Where? Where will the photograph be taken? Where will others view the photograph (i.e., Will you only be giving the photograph to the client or will you be using it in advertising for your business?)?
  2. Who? Who is recognizable in the photograph?
  3. What? What are you planning to do with the photograph?

 

Where?

The first thing to consider is the law of the jurisdiction where the photograph will be taken. Laws regarding a person’s privacy can vary jurisdiction to jurisdiction and can affect whether you will need a model release. It is also important to consider the laws of the jurisdictions where your photograph will be viewed. For example, if you are using a photograph for an advertising campaign and it will be printed in a magazine in a neighboring state, the privacy laws there will matter as well.

 

The next ‘where’ consideration is whether the photograph is taken in a ‘public’ or ‘private’ place. A public place is somewhere where people do not expect to have privacy, such as a public street. A private place is somewhere where people do expect to have privacy, such as a person’s home. For general use of a photograph, consent of your subject is required when a photograph is taken in a private place, but not a public place. However, this can change if you want to use the photograph for commercial purposes. Meaning, using the photograph solely for an advertising purpose. For example, if you look at photograph and you instinctively believe it is promoting a good that means it is being used in a commercial manner.

 

Who?

When you are determining whether you will need model releases, you only need to consider those people that are recognizable in the photograph to be used for commercial purposes. In general, if a person in a photograph can’t be recognized there is not need for a release.

 

What?

What will you be using your photograph for? A photograph intended for commercial use will likely require a model release, where a photograph used only for editorial purposes may not. Commercial use of a photograph can include any use intended to sell or promote.

 

Why Do These Restrictions Exist?

These restrictions are meant to protect a person’s privacy. Most states recognize some level of privacy rights. This means that a person in a private space generally has the expectation that they won’t be photographed, and therefore a model release would be needed, no matter what purpose you intend for the photograph.

 

So Are Model Releases Needed From All Guests at a Wedding if You Want to Use an Image for Commercial Purposes?

Let’s start with where, who, and what:

  1. Where: The jurisdiction where you take the photograph and any jurisdiction in which the image will be seen will determine the privacy rights of the wedding guests. Next, where is the wedding being held? Is it a private home? Is it a public park?
  2. Who: Only those guests that are recognizable in the photograph will need model releases when used for commercial purposes. This would not be the case if you are using the photograph for a non-commercial purpose.
  3. What: As you are intending to use the photograph for commercial purposes, model releases will likely be required for any recognizable guest, no matter what type of space (public or private) the wedding is being held.

 

Looking at that, it’s going to boil down to the use of the images.  Generally speaking, as we’ve just seen, people do not have an expectation of privacy in a public place. They know that they are going to have their picture taken at a wedding. The problem is that certain uses of an image can violate publicity rights (depends on jurisdiction – as mentioned before).  The reality is, the majority of guests accept that the wedding photography will occur.  

 
Here is an example of looking at a jurisdiction’s statute (Virginia) for application of these principles.
 
“Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.”
 
However, there is an exception to the statute for uses that are incidental to the purpose of the work, and according to this exception, a publisher will be liable for the publication of an unauthorized picture only if there is a direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work.  It is reasonable to believe that background guests would fall under the incidental exception in this state. 
 

So as you see though, there are seemingly endless considerations for determining when you will need a model release. Make sure you consult an attorney to help make this determination for your situation as each vary – but you have a good idea now!

Do wedding guests need to sign a photography model release form?

 

 







About the author

Rachel Brenke is a lawyer, photographer and business consultant for photographers. She is currently helping creative industry professionals all over the world initiate, strategize and implement strategic business and marketing plans through various mediums of consulting resources and legal direction. Disclaimer: I am a lawyer but I'm not your lawyer! View my entire disclaimer here

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