John Mackay

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all well and good if you live in a country that actually has a bill of rights …ohhh for a revolution [...sighs wistfully]

The myth I’m writing about today has undoubtedly caused thousands of excellent, award-winning photos never to be taken. It’s the myth of the model release for editorial use.

Photography columnists, unaware of their First Amendment rights, have been fanning the fires of this issue for years. A wall of mythology has built up around the subject, and I’ll make the first move to break it down for you:

No, editorial stock photographers: you do not need model releases.

To Inform and to Educate

About two million dollars a day are spent in the publishing of editorial stock photography, where the essential use is to inform and to educate.

Photo buyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. These are rare cases involving highly charged subjects, such as drug abuse or certain medical issues.

A good rule of thumb would be to ask yourself, “Would a newspaper photographer ask for a model release in this situation?”

Whatever the answer, take the picture anyway. The photo editor will be the one to determine if the image can be used.

Wearing Two Hats

You might now be asking, “So why was I under the impression that model releases are always required?”

Part of the reason is that most teaching and training for working photographers in the United States is slanted to commercial photography, where you do need a model release.

As stock photography has grown and become more prevalent, commercial photographers have expanded into media photography, and brought with them the assumption that a model release is always required.

Some editorial stock photographers like to get model releases so they have the flexibility to use their photos for commercial purposes, such as advertisements or endorsements.

As my friend Jim Cook, creator of METAMachine, says, “My accountant loves me for getting model releases; so does my wife.”

Some photographers can wear two hats, commercial and editorial. Try it. You might be built for it.

Personally, I’m not. I stick to the editorial side of selling stock.

A Powerful Ally

You — as an editorial stock photographer operating a business in a free society — have a powerful ally on your side. It’s the First Amendment of the U.S. Constitution.

The First Amendment, in effect, says you can take photographs in public (no model releases needed) as long as you are not breaking any local laws, such as trespassing.

It would be a bureaucrat’s dream for officials to be able to say, “You can’t photograph in my school, my police precinct, my park.” In reality, these people (school principals, police officers, etc.) work for you. They are your civil servants. Your taxes pay for their buildings, equipment, and salaries.

As long as you are not interrupting their normal course of duties, you can photograph them.

Deep Pockets

From time to time, there are lawsuits challenging the rights of photographers. But if you examine each case, the plaintiff almost always goes after the publisher with deep pockets, not the photographer. And the plaintiff rarely wins.

Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment rights, and in so doing, they protect your First Amendment Rights.

So go out and photograph freely in public. You’ll be in the good company of Margaret Bourke-White, Henri Cartier-Bresson, Dorothea Lange, Arthur Rothstein, and others. And the world will be a better informed and educated place for your efforts.