At its heart, every release says the same things:
Along with the subject’s signature and a date, these two statements would be enough to constitute a bare-bones, but entirely legal contract. Law students are taught that a contract records a “meeting of the minds” and, to be complete, must contain three elements: an offer, an acceptance and a consideration.
Offer. Often, the subject is offering to give you permission, along with a promise not to complain about things later on. Most of the words in the release are there to describe exactly what the subject is willing to permit and not complain about.
In some cases, e.g. where you are working with professional models, you are offering to pay the model for his services, and granting the permissions in the release is one of the conditions that must be met before you will make payment.
Acceptance. Where you are using unpaid subjects, your behavior (your making or using the photos, or accepting the signed release) indicates your acceptance. Where you are paying your subjects, their signatures show that the offer was accepted.
Our recommended releases have space to write the subject’s address and to place a witness’s name. These are not legal requirements, however. If there are no witnesses and the subject declines to give an address (or gives you only an email address — it has happened), the signed release is still a contract.
It is always good to have witnesses, of course. And it is useful to get the subject’s address. For one thing, you may want to contact the subject later on. For another, you want to make it clear that the John Smith who signed your release is the same John Smith whose photo you took.
Consideration. A contract is complete only if value is exchanged. Consideration is the legal term for whatever your subject has gotten in return for the permission. It could be money; it could be tangible goods; it could be a promise to do something in the future, such as use your best efforts to get the photo published and thus increase your subject’s renown. But it has to be something that has value, at least in your subject’s eyes.
None of our releases say what the consideration actually is, but they all say that it exists and has value. Again, the subject’s signature is an acknowledgment of the value.
When you are shooting in the field, it can be awkward to approach people and ask them to sign a release. But it becomes less awkward if you offer something tangible, yet tasteful — we often recommend handing out business cards and offering to mail a print from the shoot. Not only might this engender some good will, but it could lead to future business.
Formal language. The releases that we recommend are a bit longer and more formal-sounding than the bare-bones statements above. There are a couple of reasons why.
By spelling out the nature of the permission in great detail, the release makes it harder for the subject to claim that he didn’t intend to grant quite so much permission.
The use of formal language alerts your subject that this is serious stuff and can’t be lightly repudiated. In court, this would help reinforce the fact that the subject really did intend to give consent.
On the other hand, too much legalistic wording might scare your subject into refusing to sign. You have to strike a balance. That’s why we offer four general-purpose releases, ranging from the Adult and Child versions, which detail everything in formal language, to the Pocket version that summarizes the deal in less than a hundred words.
Our releases are designed to be all-purpose, and so they call for a very broad grant of permission. If your subject raises an objection to signing a release with broad language, you can counter by offering to write a restriction into the document. Adding a restriction actually makes the release stronger, legally speaking, than a general release; the addition shows that your subject understood the document well enough to want a change, and that a real negotiation of terms took place. Besides, in practical terms, your subject’s cooperation is always your best defense against lawsuits.
Using plain language. There are no magic formulas; the words in a contract mean what they say. If you add a restriction to a standard release, it’s best not to get fancy with the language. Just write, in plain English and as exactly as you can, what you and your subject have agreed.
Competence. Not everyone is legally able to make a contract. Signers have to be able to understand the consequences of their acts. That means they must be of legal age and of sound mind. A minor who signs a release can repudiate it when he becomes an adult, or his parent can repudiate it for him. In general, the legal age for entering into valid contracts is 18, though younger persons can, in certain circumstances, get a court order that makes them legal adults.
The “sound mind” requirement can be tricky. Crazy people can seem quite sane, and neither senility nor mental retardation are necessarily obvious in a brief conversation. Just as you need a parent’s signature on a minor’s model release, you need a guardian’s or conservator’s signature on a release for a legally incompetent person.
Illegality. The courts won’t enforce a contract for illegal activity, or one that is contrary to public purpose. For instance, in some circles, a few dollars’ worth of hashish might be welcomed as the “consideration” element of your release — but a court of law isn’t likely to see it that way. And if your pictures are used for blackmail, a model release is likely to be treated as evidence of conspiracy, not permission.
On a more practical level, there are plenty of gray areas and “iffy” situations. If you are in doubt, stop reading web sites and consult a lawyer!
A release is only useful if you can get the subject to sign it. This can sometimes be difficult (to say the least), but we have gathered a few suggestions that might help.