I seem to be the answer man lately. A few days ago, somebody asked me how to fight an eminent domain action, and now someone is asking me about modeling releases for photography:

Hi Mark,

I'm relatively new to photography and have a quick question that I'm hoping you might be able to help me with..

I have been using the istockphoto model release form for every photoshoot that I've done because the wording on it seemed very good. I haven't put all of my photos on istockphoto, especially not the better ones which brings me to my question.

A buyer from istockphoto liked a series of photos that I had up and asked if I had any more. I have a few more that are not on istockphoto and would love to sell them but I don't know if I'd be able to do that with an istockphoto model release form. I called a few of the other stock agencies and they say that they do not accept istockphoto release forms.. I dont' get it! Just because there's the istockphoto logo and address at the top of the form? So does this mean that I can't sell my photo privately because of the release form template that I used? :(

Thanks so much,

Felipe

Caveat: There's a lot of bad information out there about model releases, and this might be some more of it. I've tried my best here, but I'm not a lawyer, and this is not legal advice.

Photography law is surprisingly complicated for something that so many people are doing these days. It touches on several major legal topics, including copyright, trademark, privacy, and defamation, each with its own logical structure and case law.

I suggest that if you can't afford to get advice from an actual lawyer, you at least buy a good book on the subject. I've found Bert Krages' Legal Handbook for Photographers: The Rights and Liabilities of Making Images to be a pretty useful source of basic information. There's also a link to his website in the Photography section of my blogroll.

If you're a photographer shooting a model, the photography itself is pretty simple (legally). Most of the legal issues arise later on when someone wants to publish the photo. The model has certain inherent rights to control the use of her image, and anyone who wants to use the image for commercial purposes will need her permission to do so. You get that permission in the form of a model release.

For a stock photo sale, the end user doesn't want to have to find the model to get her permission, so usually the photographer gets the model to sign a release that gives him the right to make further grants of rights to other people. People who buy the photos will be planning to use them in a certain way, and they will want to make sure that the photographer has a release that grants the rights they need.

So, Felipe, the short answer to your question is that you can sell your photos privately if the buyer is satisfied that the release covers his intended use.

Of course, just because you complete the sale doesn't mean you're legally in the clear. Strange things can happen.

For example, suppose you take a photo of a thoughtful young lady in business attire sitting at desk. You then sell this photo to a stock service which re-sells it to an ad agency putting together a billboard for a drug rehabilition service. The ad agency uses the picture with the headline "Not all heroin addicts look like heroin addicts."

One of the billboards ends up across the street from a bookstore that has just hired your model to read stories to children. Parents don't want to leave their children with someone who might be a heroin addict, so they stop bringing their children to the store, which no longer needs her services and lays her off.

Does your model release cover this? If not, the model may be able to sue the end user for defamation, and for all I know, she can sue the photographer as well. I made up this example, and these kinds of things happen pretty rarely, but if you sell enough pictures, it could happen to you.

When a stock photo service is involved, they may want to assure purchasers that they will not face these kinds of problems, so they require the models to grant extensive rights, reeling off long lists of specific examples that end with catch-all language like "any media for any purpose" and "irrevocable, worldwide, and perpetual."

So, Felipe, the longer answer to your question is that you need to make sure that you're protected, and it's good business to help your customers protect themselves.

My guess is that iStockphoto's release probably does cover the hypothetical horror story I described. They'd be one of the deepest pockets in any lawsuit, so they're probably pretty careful. But that doesn't mean the release protects you or the end user as well.

As for other companies' acceptance of the iStockphoto release, I doubt the presence of iStockphoto branding has anything to do with it. My guess is that the release doesn't have the protective language their legal department has decided they need, or it doesn't have the language they've promised to their customers.

(Actually, I just took a look at the iStockphoto standard model release and I noticed that it says the release will be "governed by the laws of Alberta, Canada." That might be deal-killer for anybody not located in Canada.)

Just because stock services like Getty or Corbis or Comstock don't like the release, however, doesn't mean your private buyer won't find it satisfactory.

Don't forget, you can always go back to the models and ask them to sign another release for the same photos. It's a pain, and you'll have to pay them at least a token amount, but it might be worth it to expand your photo market.