When photographing people it is all too easy to see the situation purely from a photographer's perspective. However, experience soon shows that subjects' priorities are likely to lie elsewhere. Most will focus upon their appearance in the printed pictures, and the potential usage of their images. Unfortunately, photographers do not always know how images will be used at the time they are taken.
Release forms are an important element in a photographer's survival kit because they provide a convenient means of recording agreements made with subjects. They also serve as receipts and therefore eliminate disputes about payment. It is unfortunate that they are commonly known as "model release forms" because this gives the misleading impression that they are applicable only to professional models.
Release forms are not a legal requirement. There is no copyright in a person's features or body shape, and copyright in a photographer's work is automatically assigned to the photographer. Unfortunately that does not prevent the occurrence of disputes over the use of pictures. Photographers may find themselves sued for damages if subjects feel their images have been misused, perhaps as a consequence of publication, or that their privacy has been abused. Subjects may also object to images being used in particular ways, such as on certain websites or in an advertisement for a particular product. The legal situation is complicated because different laws apply in every country.
In many countries a photographer is permitted, in broad terms, to photograph people in public places without prior permission. However, it is important to remember that there is no legal protection from the acquisition of black eyes and broken cameras - just the possibility of redress at a later date. In private places it is generally necessary to obtain appropriate agreement before photographing people. The most significant factor is perhaps that of intent. Why did a photographer take particular images, and how are they to be used? Nevertheless, assuming decency and honourable intentions, images of people taken in private circumstances can be used at a personal level without the agreement of the subject.
When images are published or used commercially the situation is rather different. Photographs taken in public places can be published without permission provided there is no intention to mislead. A man can be photographed walking with his mistress, and the picture can be published provided the caption is not libellous. Newspapers and magazines use material of this nature all the time but are careful to report only the facts. However when photographs of people in public places are to be used in advertising, it is certainly advisable to seek formal release. Pictures taken in private, usually with the cooperation of the subjects, should not be published or used commercially without a written agreement. Cooperation will be based on an understanding between the subjects and the photographer. If someone later feels that an agreement has been broken they may be able to seek redress. Verbal contracts obviously increase the chances of a misunderstanding.
In other countries the situation may be quite different. France has particularly strict privacy laws and photographers have been prosecuted for nuisance, harassment, and even for publishing images taken in public places. Developing countries may have little or no relevant law, but the situation on the streets may be complicated by issues related to religion, culture, superstition, tradition and so on. Photographers must then feel their way and take the consequences. In many cases the best guide is simply whatever is reasonable.
Since the public display of images is a key factor in determining the proper use of release forms, the photographer must also understand what constitutes publication. According to the dictionary, publishing is the process of offering material for public scrutiny. Clearly the scope of publication is also a factor. The front page of the London Times is likely to be regarded in a different light to a local photographic exhibition. Nevertheless, including an image in a public exhibition or club newsletter constitutes limited publication. A club website potentially crosses every national boundary and therefore represents global publicity.
Prudently-worded and legally-binding release forms should therefore be signed wherever possible. In the case of private shoots undertaken with the cooperation of a subject, the use of release forms is certainly good practice. The signature of a parent or guardian is essential where anyone under 18 is involved. If any of the pictures might be displayed publicly, formal release is essential. Nude shots of anyone under 16 invite prosecution. For all other nudes it is good practice to sign a release form for each published image. Models may have strong views about how much of their bodies can be revealed and their consent will vary accordingly. In the case of images used for advertising the same strict principles apply. When people are photographed in public places it is clearly not possible to collect all their signatures and no one would expect this to be done. But if an image which is to be published includes a couple of dominant figures, it is worth seeking their release signatures.
Photographers who regard such precautions as unnecessary should bear in mind that it is not unusual for models to change their minds about the use of their images years after they are taken. This can happen even in cases where release forms have been signed. A typical situation arises when a young model acquires a husband or wife who finds previously taken images disagreeable. The couple then decide to make a legal challenge. This is arguably more prevalent in, but not exclusive to, the amateur world. The existence of a signed release does not entirely exclude the possibility of disputes, but it does render them less likely and easier to resolve.