Please be advised that while I am a licensed and experienced intellectual property attorney I may or may not be licensed to practice in any jurisdiction where the reader may reside or have business, and nothing herein is meant to constitute specific legal advice. Always consult a lawyer licensed in your jurisdiction and familiar with the relevant law and your particular situation before making legal decisions.
There are two sets of rights which may attach to any photograph showing a recognizable human being. The first we will collectively refer to as the "right of publicity", although in some jurisdictions it is also referred to as the "right of privacy," even though technically they are two different things. For purposes of our discussion, the right of publicity (or, for brevity, the RoP) is the right to control the use of your own likeness. (This article will not address actual privacy rights issues.) This right belongs to the recognizable human being depicted, to whom we shall refer as the "model." It is governed by state law.
The other right which may attach to the photograph is copyright. Copyright attaches to the photograph the moment is fixed in tangible form (including either a film negative or an electronic image file in a digital camera's memory.) It is granted by the Copyright Act in the United States, and by similar laws in other countries. In the US, the copyright belongs to the creator of the work. For a photograph, that's the person who pushed the shutter release, whom we shall call the "photographer." It is governed by Federal law.
Copyright is the first of the four IP issues when dealing with the question of who may and may not use a photograph. Copyright trumps all other rights: if the holder of the copyright has not granted permission to make any particular use of the photograph, it is almost certainly unlawful to make such use. The oft-misunderstood doctrine of "Fair Use" will almost never apply to any matter relevant to our discussion. If a professional photographer took a picture of a professional model, almost no use the model could want to make of it is a Fair Use. These rules vary hugely: in Canada, for instance, if a model hires and pays a photographer to take pictures, the model owns the copyright.In the US, the photographer owns the copyright, even if the model is paying the photographer. The only exception would be if the photograph was a "work for hire," which requires far more than that the photographer is being paid. It is very unlikely that a "casual" interaction, even if money changes hands, will produce a work for hire.
So. The photographer has a copyright. The model has a right of publicity. They wish to allow each other to make various uses of photographs subject to these mutual rights. What to do? If the photographer wants to use the model's likeness, he needs a Likeness Release. A Likeness Release is just permission to use someone's likeness in a way which otherwise they might be able to prevent as a breach of their right of publicity. (A Likeness Release is a form of license, if you're interested in which area of the law we are discussing.)
Here is the text of the release that Norma Jeane Mortenson, later known as Marilyn Monroe, signed at her first session with the incomparable Bruno Bernard, greatest of the Hollywood glamour photographers: "Release 7/24/46 I hereby permit Bernard of Hollywood to use the pictures he has taken of me for exhibition and commercial use. Signature: /Norma Jeane Mortenson/" With one minor exception, that release would stand up in court in any jurisdiction of which I am aware. You will note, however, that it does not say anything about payment, nor does Bernard's signature or any obligation or promise by Bernard appear. Why? Because a release is not a contract. A release is a release. A release can be consideration for a contract. A release can be included in a contract. But a release is not a contract, nor must a model receive any payment whatsoever for a release in the vast majority of cases. You give the permission, the permission is given.
It should also be noted that unless the release contains limiting terms it is generally held as unlimited in time and space. Releases need to be written in many jurisdictions, but not all. When in doubt, releases should always be written. Similarly, the photographer may give the model the right to use the copyrighted image for any particular purpose by granting the model a license.
Here is the text I use to grant models a license to use photographs for their portfolios: "I, Marc Whipple, by my signature below grant [MODEL] a license to use the copyrighted photographs I have provided for them on [DISC, EMAIL, ETC] for the purpose of self-promotion. The photographs may not be used for any commercial purpose other than promoting [MODEL]. This license shall be perpetual and throughout the world, but is not transferable. Signature: /Marc Whipple/"
Again, no mention of money, nor any promise from the model. Why? Because a license is not a contract. A license is a license. A license may be consideration for a contract. A license may be included in the text of a contract. But a license is not a contract, nor must a photographer receive any payment whatsoever for a license in the vast majority of cases. You give the permission, the permission is given. (Note, however, that while whether a release has to be written, and what format it requires, varies widely by jurisdiction, the requirements for a copyright license are standard throughout the US.)
Like releases, licenses must contain any limiting terms at the moment they are granted: limits cannot be imposed later. You will note that my license does not allow the model to commercially exploit the images or to allow others to do so.
So again. The photographer can grant a copyright license. The model can grant a release of RoP. But what if the parties have more complex concerns? Suppose the model is concerned they will not get the photographs they were promised by the photographer in consideration for posing? What if the photographer is worried the model will not pay for the photographs after they review them? The parties, wishing to bind each other, must now enter into a contract.
A contract is simply a mutual exchange of promises. For a contract to exist, both parties must make a promise, either to do something they are not otherwise obliged to do, or not to do something they would otherwise be entitled to do. Contracts generally do not have to be written (in some cases the copyright law does require written documents,) although of course it can be difficult to prove the terms of a contract that was never written down. An oral contract which contains a promise to later execute a written document (such as a license or release) is perfectly enforceable, if the party seeking to enforce it can prove it existed at all.
Interestingly, it's that latter formulation (the parties promise not to do something that they would otherwise be entitled to do) that governs contractual use of both releases and licenses. The model could use a promise not to sue a photographer for infringement of the model's RoP as consideration for something they want from the photographer (like prints or digital image files.) The photographer could likewise promise not to sue a model for infringement of copyright in exchange for something they want from the model (such as posing time, or a RoP release.)
Suppose a model is trading posing time for images they can use to promote their modeling career. The parties should, of course, discuss what they expect (how many images, when they will be delivered, limits on usage by both parties) before the shooting even begins. When the session is over, the model usually signs a release. When the photographer delivers the images, they usually include a license. But if they have concerns that problems may ensue, they should enter into a contract.
For instance, here is a short example of a contract which would govern the above sort of exchange: "Marc Whipple (hereafter, "Photographer") and Jane Doe (hereafter, "Model,") by their signatures below, hereby enter into this Agreement for Photographic Services: 1) Photographer agrees to provide Model with six good-quality digital image files within thirty days of the signing of this Agreement. These files shall be suitable for use on Model's Internet portfolio site and comparable to the other images located there. Photographer also agrees to provide Model a reasonable copyright license allowing her to use the image files for reasonable self-promotional purposes. 2) Model agrees to provide Photographer with a reasonable likeness release which will allow him to make commercial usage of any and all photographs of Model which Photographer has produced. Signatures: /Marc Whipple/, /Jane Doe/"
Now, this is a highly simplified contract. But it ties back in to our earlier examples. The photographer has to give the model her images as he's agreed, and a license to use them. If he does neither of these things, he's in breach of contract, and the model is not obliged to sign a release. In fact, she can sue him for her photographs, or for damages! Similarly, the model has to sign the release, if the photographer lives up to his end of the bargain. If she doesn't, she's in breach, and the photographer can sue her to get damages or even specific performance.
In other words, the court could order her to sign the release, and find her in contempt if she refuses. If she were to try to sue him for breach of her RoP, he could use the unfulfilled contract as a defense, and her suit would likely fail. A "real world" contract of this sort might have both the release and the license "built in," so that the terms are specified in advance, and just make them conditional upon everybody doing what they're supposed to do. In fact, that's usually how it's done in commercial photography. But this example shows the process as a series of discrete parts.
I hope those interested in the subject find this a useful and hopefully not too-intense introduction to these topics. Interested parties are invited to email me at [email protected] with questions or comments.