Privacy and Model Releases

A ridiculously long, meandering post but first, the disclaimer:

I’m not a lawyer and one look at my bank account will confirm that. You’d be foolish to take my advice without further thought. Although laws are written in black and white, they are anything but. No matter what the situation, there will always be a lawyer who will argue the opposite. Remember that civil laws can vary from province to province.

The short version of this post: Do you need a model release? Yes, no, maybe.

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Privacy laws and model releases go hand in hand. The federal government and most provinces have privacy laws.

The Privacy Act regulates “the privacy of individuals with respect to personal information about themselves held by a government institution.” The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to personal information held by private sector organizations and businesses. You, the photographer, are a business and should already have a privacy policy published on your web site.

PIPEDA is federal law and most provinces have their own law regarding the protection of personal information. As a business, you have to know what these laws say and mean. It’s not an option. Personal information isn’t just the obvious name, address, phone number, credit card number, etc. The law says that a photograph of someone is a form of personal information.

Most governments and many businesses tend to err on the side of over-protecting privacy. This can be good and bad. The Supreme Court of Canada, in general, tends to favour the right to privacy over freedom of expression (more on this later).

Examples of over-protecting privacy:

• Some schools require a signed release to put a student’s name on a trophy or award if that trophy or award is going to be on public display.

• Some schools need a release to take a student’s photo and then include that photo in the school yearbook.

• Some daycares don’t allow parents to take pictures of their own children taking part in daycare activities.

• The city of Toronto no longer allows anyone without a permit to take any pictures inside any city community centre. This means parents can’t photograph their children (of any age) playing hockey, figure skating, taking part in swimming competitions, doing any arts and crafts, etc.

In Canada, you don’t need a model release to take a photo but you may need a release to use that picture. You don’t need a release if the picture is only for personal use. Posting the photo on your Facebook page or on Twitter isn’t necessarily personal use. Putting something on the Internet is often considered “publishing to the world.”

A model release might be required even if the person’s face is not shown, for example, if the person has a recognizable tattoo or a unique profile or silhouette.

Property releases can apply to some well-known buildings as well as custom cars, custom motorcycles, pets, zoo animals and other unique property. Releases can also apply to trademarks and, of course, copyright.

Here’s a case in the USA where a property release was not required for commercial use of a photo of a well-known and unique house.

For the rest of this post, I’m going to talk only about model releases.

Due to privacy laws, you usually need a release when photographing school kids, hospital patients and employees of some businesses, while on their premises. The public body (school, hospital, etc.) and business employer are responsible for protecting the privacy of its people. These organizations often have their own release forms available.

You can’t go wrong by having a model release. In general, editorial uses don’t require a release but sometimes they do. In general, commercial uses do require a model release but sometimes they don’t. Clear enough?

What is editorial and what is commercial? What about “advertorial”?

Generally, editorial is about information whereas commercial is about selling a product or service. The 1996 case of Gould Estate v. Stoddart Publishing helped set a standard definition.

As for advertorial use, note that most advertorial content is put together by a publication’s ad department. That should be a good hint.

Editorial Uses:

Someone who is in the public eye or involved in a newsworthy event, and is in a location where there’s no reasonable expectation of privacy, may be photographed and the picture used in an editorial context without a model release. But not if the picture is libellous, defamatory or humiliating. This latter exception can apply even if a release form was signed. Do you always know when a photo might be embarrassing or humiliating to the person in the picture?

• A man dances naked on the roof of his car parked on a city street. Can you publish a photo of him? If he causes a disturbance or is arrested by police, then yes. But if he simply dances for a few minutes and then leaves, it’s not newsworthy. But many newspapers will try to create some sort of newsworthiness in order to run the picture. You could use the picture if the man is not identifiable in the photo.

• Although US law doesn’t apply in Canada, there was a 1970s(?) or 1980s(?) case in the US where a teenaged girl was photographed in a bathing suit while standing amongst a crowd of other people, all of whom were in the nearby background of a news event at a public swimming pool. When the photo was published in black-and-white in the next day’s newspaper, the grey tone of the girl’s swimsuit matched the grey tone of her skin making it appear as if she had nothing on. She felt humiliated so she sued the paper and won.

• A photo of a very overweight person carrying six ice cream cones, (to six nearby kids who aren’t in the photo), on a hot summer day may land you in hot water. If the person gave you permission, you’re probably okay. But that person could come back later saying they suffered unexpected humiliation and ridicule after the photo was published. The person was expecting a fun picture of themselves delivering ice cream to some children, but the photo somehow implied that the overweight person was about to eat all that ice cream themselves.

Unexpected humiliation was the cause of the 1998 Quebec case of Aubry v. Editions Vice-Versa. In 1988, then 17-year-old photographer Gilbert Duclos shot a few candid street photos including one of a young woman sitting on the steps of a Montreal building. After this photo was published in 1989 [link to 19-MB PDF. Scroll to page 20 -“Inside and Outside the Glass House”], the woman in the photo, 17-year-old Pascale Aubry, sued the photographer and magazine for $10,000. Aubry claimed her school friends teased her about the photo and she felt humiliated.

Although the court said there was nothing about the photo that could cause embarrassment, ridicule or defamation, it still awarded her $2,000 because her privacy was invaded. The photographer and magazine appealed up to the Supreme Court of Canada but they finally lost in 1998. Ironically, once the story about the lawsuit broke, the picture became newsworthy. After the picture was entered into court evidence, it became public record.

What this landmark court case means is that in Quebec, a non-news picture with recognizable people can’t be published without consent. Note that Quebec’s Charter of Human Rights and Freedoms is different from the Canadian Charter. Quebec’s Charter contains the notion of the right to anonymity.

In the Aubry case, the photographer had the right to free expression and person in the photo had the right to privacy. Which was more important? The Supreme Court of Canada, using Quebec’s Charter, ruled unanimously in favour of the right to privacy over free expression:

The artistic expression of the photograph cannot justify the infringement of the right to privacy it entails. An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work.

The court said that it would have ruled in favour of the photographer if any of the following held true:

• the woman in the photo was a public figure
• the woman was (intentionally or otherwise) involved in a newsworthy event
• the woman was part of a crowd
• the woman appeared in an incidental manner in the photo.

The Chief Justice of Canada said this photo was not in the public’s interest (i.e. not newsworthy) and that the photographer could’ve easily obtained the woman’s consent but didn’t.

American law allows for publication of a photo without a release if the picture serves a “socially useful” purpose (e.g. has artistic, cultural, political or other value). The Canadian Supreme Court noted, “In the United States, freedom of expression and public information prevail over the right to privacy except where the information’s sole purpose is commercial.”

The Aubry case has “inspired” other lawsuits in Quebec:

• Thomas v. Les Publications Photo-Police, 2001: A woman was accompanying her husband to his court appearance for public mischief charges. While leaving the courthouse, the couple was photographed together and a picture ran in a newspaper. The woman was not named in the paper. The woman sued and won $24,900. Everything about the photo was honest and truthful and the couple was in a public place. But the court ruled that her privacy was violated because she was not newsworthy and the paper should have cropped her out.

• I don’t know the outcome of this case but a woman who attended the 2000 funeral for Pierre Trudeau filed suit against several media outlets which photographed her sitting in the front row of the church.

• A $30,000 lawsuit was filed by a businessman in 2003 against The Globe and Mail and Le Devoir, after each published a photo of the man to accompany a SARS story. The businessman claimed that the front-page photo, published without his consent, led people to believe he had SARS which damaged his business. I believe the man was photographed while he was just walking past a SARS sign at a hotel or some other venue. (I don’t know the outcome of this.)

• Goulet v. The Gazette: In 2010, a correctional officer at a federal prison in Quebec sued the Montreal Gazette for running a photo of him at work. He was awarded $10,000. The guard, who was unaware he was being photographed while standing outside the prison, claimed he was ridiculed by colleagues after the photo was published six months later.

• Sourour v. Clavet [link to PDF], 2009: A Quebec provincial politician attended a Christmas party where he had his picture taken with the organizer of the event. The picture was later published in the politician’s campaign brochure. The event organizer sued and won because she did not consent to help promote the politician.

• “A” and “B” v. Sun Media [link to PDF], 2009. A and B sued Sun Media after the news organization did a nine-month, undercover, investigative report in 2003 about the Raelian Movement, in which A and B were members. The court ruled in favour of A and B saying that there was no consent to publish any photos of them even though the pictures were shot in public locations.

• A Quebec woman in 2014 successfully sued (English here) Google after her image appeared on Google’s Street View maps. In Pia Grillo v. Google, the woman was sitting on the front steps of her home in full public view. Her face was blurred in the published Street View photo but the woman’s friends and colleagues easily recognized her. The issue was that she was wearing a tank-top dress and happened to be leaning forward, checking e-mail on her cell phone, when the 2009 Google picture was taken. She was teased and ridiculed for her revealing appearance in the photo. The Quebec court used Aubry v. Editions Vice-Versa to conclude that the woman’s photo was not in the public interest.

Outside of Quebec, the Aubry ruling doesn’t apply but it has been referenced in other Canadian cases. Nevertheless, similar conditions apply in other provinces (i.e. release not needed for public figure, newsworthy event, etc.). Remember that newsworthiness often fades with time.

Generally, photographs taken in a public place of private matters do not constitute an invasion of privacy if they are newsworthy. For example: a photo of a murder victim’s grieving family in public view.

Privacy laws outside of Quebec have an exemption for journalism. But Quebec does not distinguish artistic expression from journalistic reporting. This means that photographers in other provinces can publish photos of people without their consent if the photo serves the public (has a journalistic function). But you’re still restricted by libel laws and some other privacy laws (e.g. reasonable expectation of privacy).

Journalism is not limited to the large news organizations. Anyone can practice journalism. But on the other hand, not every photo you make is journalism.

Commercial uses:

In addition to the right to privacy, there’s also the right to publicity or the appropriation of personality. There have been several cases in Canada which dealt with commercial use of photos without a model release:

Salé v. Barr: In 2003, well-known Olympic figure skaters Jamie Salé and David Pelletier sued Alberta photographer Stephen Barr to stop him from selling framed prints of them as well as a collage print of them and a pair of Russian figure skaters.

Deschamps v. Renault Canada: A 1970s case in which a publicity photo of two actors posing next to a car was used by the car manufacturer to promote that car.

Corlett-Lockyer v. Stephens: A 1996 case which involved the unauthorized use of photographs in a newspaper ad. (This link has a few other examples).

Crowd Releases:

A “crowd release form” might be used by a filmmaker, TV producer, a conference, a pro sports game or any other event where crowds of people will attend, or somehow be visible in the background, and photography of some sort will occur.

Since it’s impractical to get a release from each person, the event will post signage or, if applicable, print on the back of the admission tickets, something like:

A motion picture is being filmed in this area. Your presence in this area constitutes your agreement to being filmed, videotaped, photographed or recorded… You consent that your image, likeness or voice may be used in perpetuity in all media for… If you do not agree, please leave the area immediately…

By participating in this marathon, you agree that you may be filmed, photographed or recorded in any media…

This concert is being recorded by XYZ Productions. By entering this venue, you irrevocably consent to being recorded by XYZ Productions and that said recordings may used in perpetuity in any media for any purposes . . . If you do not agree to the foregoing, do not enter this venue.

A crowd release has about the same legal weight as the sign at a dry cleaner that says the store isn’t responsible for loss or damage to your clothes or the sign at a paid coat check that says it’s not responsible if your coat gets stolen.

This isn’t so much a legal release form but rather it’s an attempt to act as a deterrent against any potential lawsuit or nuisance suit. A crowd release form is really just a “cover-your-butt form” for filmmakers, producers and photographers.

In general:

You do not need a model release if the picture is for personal use and it’s not publicly displayed or published.

Selling the pictures as art, commercial stock, etc., usually requires a release.

You do not need a release if the person is newsworthy, in the public eye, or involved in a newsworthy event, and it’s shot in a public place (or a place where you were invited), and the photo is for editorial use. You are always governed by libel, defamation and trespass laws.

What about publishing a book of your work or having a gallery exhibit of your photos? It’s a grey area in Canada. You’d be wise to have a written release form, although verbal releases can be binding. If the photos aren’t embarrassing or defamatory to the subject, you might be okay if you’re feeling lucky. US law differs here in that a release is often not needed if the work has artistic merit.

In most provinces, you probably need a model release even if the person is dead. In Quebec, you do need a release. In Alberta, you need a release if the person has been dead for less than 25 years. In other provinces, the time period may not be defined. Just for comparison, remember that copyright lasts for life of the author plus 50 years.

If a model release is necessary, it would be required only if the person in the photo is somehow recognizable and a main part of the photo. If the person is in silhouette, their back is turned, their face is covered, they are part of a crowd, they’re blurred, etc., you don’t need a release. See Joseph v. Daniels, about a bodybuilder whose torso was used on a poster. See Krouse v. Chrsyler Canada about a CFL football player whose image was only incidental in a promotional photo.

Exceptions to this are if their profile is easily recognized even in silhouette, if they have a special tattoo, or if they have something unique that would make them recognizable.

How do you determine if someone in a photo is incidental or recognizable? Either you’re lucky or a court has to decide.

As mentioned earlier, you can’t use a photo in any way that is defamatory, libellous or humiliating to your subject. The exception is when the release form includes a specific clause that allows for “sensitive uses.” This means the release form specifically states that the photo will be used in a way that might cause ridicule and embarrassment. For example, if a photo of someone will be used to promote a diarrhea treatment or will be used in an editorial story about sexually transmitted diseases, the release form should state that information so the model will be absolutely aware of it:

I understand that the photographs of me will be used to promote awareness of sexually transmitted diseases. Knowing that such use may intentionally or unintentionally create the impression that I suffer from such diseases, I nevertheless consent to this use.

Any photo where the subject will be shown in a bad light (not referring to your lighting technique) should be released. And, to go the extra kilometre, the photo caption should include a disclaimer like “professional model” and/or “photo illustration.”

Some generic model releases have a clause that say the pictures may be used in any way even if the model is held up to ridicule and embarrassment. I wouldn’t bet my cameras on that release holding up in court should the model later claim to be humiliated by a picture used in an embarrassing way.

You cannot mislead the model on a release form. If the release form says the pictures will be used editorially then you can’t used them commercially. If the release form says the pictures will be used to promote XYZ, then they can’t be used to promote ABC.

Some release forms are intentionally vague and all-encompassing so that the pictures can be used for almost anything. Often this type of release is required for stock photos. Let me point out that just as most photographers hate to sign away all rights to their photos, many models may be reluctant to sign away all rights to their image. Don’t expect professional models to sign away all rights without a hefty fee.

It used to be that getting a person’s name for your photo caption constituted a common-law type of release. This might still be true today, and verbal releases are binding, but you have to make sure the person knows what you’re planning to do with the pictures. If you walk up to someone and ask, “Okay if I take a picture of you?” and they agree, that’s not a model release. And good luck proving a verbal release in court.

Professional models sometimes have their own model release that you, the photographer, have to sign.

Some model releases use a phrase such as “…for good and valuable consideration hereby acknowledged as received…”. This means the photographer must give something of value to the model. It can be one dollar, a print, a digital file, a sandwich, etc. It’s commonly thought that such a phrase is required to make the contract legally binding (i.e. both parties trade something of value).

But some releases do not use such a phrase. For what it’s worth, I’ve used releases supplied by a university and two governments, (Ontario and federal), none of which used the “valuable consideration” statement.

To make a release form less threatening either use a mobile app version or print your form on yellow or pink paper. With paper release forms, the intimidation factor is proportional to the size of the sheet of paper and the number of words on it. If you do use paper release forms, be sure to take a close-up photo of the model holding the signed release next to their face.

Children under legal age must have a parent or legal guardian sign. Anyone who may not be mentally competent requires a guardian or other legal representative to sign.

If you ask a company president, CEO, or senior executive to sign your release form so you can use the executive’s picture as commercial stock, there’s a good chance they will never hire you again. In most cases, corporate executives are not allowed to sign anything without their legal department’s approval. If executives need to sign a release prior to pictures being used in their own marketing, their company will most likely look after it.