getting permission from divers

I often take a grab shot here or there while I am diving and one of our groups goes by. A lot of times if I am with a student or diver I will let him/her know that I might take some shots with the intent of maybe using them in our advertising, on my web page or for other purposes. If I haven't talked about it before the dive, I do on the boat and always say something like "If I like the shot is it OK for me to use it on my site or for our ads or other things?" So far everyone has been fine with that and it's never really been an issue. I don't have many diver shots that are great as I don't try to get divers in my shots (yet, it's on my list of things to learn!) so it's not something I've given a lot of thought to before.

But I've been reading again - not enough time underwater! - and think perhaps I should have a standard model release so when I know I have an image with a diver on a dive I can get him/her to sign it.

1) do you think this is necessary? I'm guessing yes

2) is there a quick easy form I can use? Or is something like:

I, DIVER's NAME, allow PHOTOGs NAME to use my likeness without compensation, credit or other recognition. Signed this date....

Appreciate the help!

Did you lose the one i sent you before?!

If you are not sure, get a release.

If you are sure, get a release.

Especially if its for advertising.

Did you lose the one i sent you before?! 

<{POST_SNAPBACK}>

Mike - Yup, when my computer crashed it took everything with it...I couldn't remember if you had sent one of those, too! If you don't mind, could you forward it again maybe?

kristin@OceansByAnderson.com

Thanks again!

Will do...tomorrow from the other computer...

Mike, while you are at it, please send it to me too! luiz at luizrocha.com

Thanks,

Luiz

If Mike's sending you a release, all well and good... Something to be aware of (and again with the IANAL disclaimer), a model release is a contract, and a contract requires that one party "pays something". So your wording:

I, DIVER's NAME, allow PHOTOGs NAME to use my likeness without compensation, credit or other recognition.

Actually invalidates the model release.

Mine say:

"For good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, I (Model Name) hereby grant to (Photographer name)" and so on and so on.

Note that by signing this release they are saying that they have received "good and valuable consideration", even if they haven't. And note that there is no actual definition of what "good and valuable consideration" consititutes in the form. Sending a file by email at low res if enough, and by giving some consideration you make people happier to work with you in the future.

Yup, absolutely, get a release every time! And do the model a favor, be nice to them. It can seriously tick off a diver who becomes an "accidental model" to find out that a divemaster/friend/buddy/whatever has photographed you, sold a photo where you are the element that "makes the photo" for profit without even asking for your consent. Of course, if you are not able/willing to pay the model, at least print a nice copy for the model or provide them with a picture in some other format. Besides the legal issues, common courtesy should apply same way as it does in above water photography.

Also, in general, a model release is not required if the person is not recognizeable (to the etent anyone is with a mask over their face and a reg in their mouth.....). So that shot of a diver in full silhouette against the sun doesn't need a release (unless there is something so distinctive about their body shape that people know who it is......)

Not legal advice in response to a specific legal question, just a comment for educational purposes

Good pt Chris - I was going to point this out too, but I'm glad someone w/ more legal experience than me jumped in...:-)

And Craig's certainly holding his own for a Vet. eh? :-)

Cheers

James

OH NO! Not release forms underwater! From my viewpoint, the obsession with model releases is most unfortunate. It has already made some kinds of photography almost impossible, the classic street photography made famous by the likes of Cartier Bresson for example. Because the perception is that everybody needs to be asked before a picture is taken, no matter what. Frankly, unless you are really up close and personal, I cannot see how anybody can claim they are (unwillingly) exposed/identified whilst wearing mask, reg and sometimes a hood.

Think back to the last time you went diving, how do you recognise the people you dive with? If you look for your buddy, you don't look for his/her face, you look for those yellow fins and the red stripe on the BCD or whatever.

So when people aren't identifiable (in a picture) by the general public, or even their relatives (as a non-diving relative to pick you out from a group of diver!), there is no reason why they or the photographer need to be protected by legal (or other) forms.

That doesn't exclude being curteous, be nice and ask people before sticking a camera in their face. And we all appreciate a good picture of ourselves. But leave the paperwork for the office, no need to take it on the boat.

I agree with you Fredrik, but the problem is that many magazines request the signed forms in order to publish the pictures, even when the divers are not easily recognizable.

Hi Fredrik, I am a scandinavian too, so I can completely relate what you are expressing. I was not used to the "get everything on paper" until I moved to the US. However, in the US things are a bit different... here it is really good, both for model and photographer, to have an agreement on paper. But in principle I completely agree that it would be a much nicer world if we could all just be polite rather than needing legal agreements. And in any situation, if someone does not want to be photographed or find themselves published, we as photographers should of course respect that.

If you're not aiming to sell the images for further commercial use, then you don't need a model release. If you do want to sell the images, the release protects the photographer and end user.

Say I was to sell as stock some wedding photographs I shot at my rather rubenesque friend's wedding, and she has not given me a release. Her friend then calls her up and tells her that her photograph is part of an ad for a diet pill that says "Don't be a hippo on your big day... Fatsucker 3000". I'm screwed. The release says (amongst other things) that an image can be resold and repurposed, and that the model does not have a right to veto over the finished product.

I don't get model releases from everyone I shoot, but I also have some shots that I would really like to have in my stock portfolio that aren't released, and I regret not getting a release at the time.

On the Cartier-Bresson issue, he was a "fine art" street shooter. No need for releases there, even now, unless you want to sell your shot as part of someone's gritty-realist advertising campaign for mass reproduction. Sale of limited editions of fine art prints generally falls outside the area where people get really bent out of shape if there is not a release. But the photographer may get bent out of shape if Benetton comes knocking with a multithousand dollar check in their hand, then walks away because of the lack of valid releases.

Very good points Craig. I guess if you do fine art print, much fewer people are likely to see the image anyway, but whe n you sell for advertising, magazines and such, the audience is much larger.

But the photographer may get bent out of shape if Benetton comes knocking with a multithousand dollar check in their hand

Wish I had that problem... I would HAVE the release!

I don't get model releases from everyone I shoot, but I also have some shots that I would really like to have in my stock portfolio that aren't released, and I regret not getting a release at the time.

Is it possible to contact them after the fact and get a release or do you have to do it at that time?

Taking it further, what if you took a shot, used it in a low key manner - such as limited edition fine art maybe, but then decided to use it or try to use it for advertising or magazine or something else? Can you get a retroactive release? All assuming you have any clue who the person it, of course...

...ahh, such an interesting topic.

All assuming you have any clue who the person it, of course...

That, in fact, is my primary trouble. I have taken some u/w photographs involving divers in which I can not for the likes of me identify the person. Absolutely no idea who they are. How is one supposed to account for that? As I don't take a good look at it until it's back on the computer, I can't expect to be able to check everyone's gear/wetsuits/etc on the diveboat to match said person up with the photograph. I suppose this is why dedicated models are used

~Matt Segal

As far as i know it is not a problem for editorial work, ie magazines, newspapers etc. That is why big crowds of people that appear in newspapers are there, would be impossible to get all those releases.

However, if the photo is going to be used in advertising, then it needs a release....

But, just get a release....mind you, saying that, i am bad at getting them....

As far as i know it is not a problem for editorial work, ie magazines, newspapers etc.  ...

However, if the photo is going to be used in advertising, then it needs a release....

<{POST_SNAPBACK}>

Yes it is important to distinguish between editorial and advertising. Advertising is all about selling stuff, contracts, and all parties getting as much money as they can out of the deal, including the person being photographed. But, it is not only "art" that should be release free, also editorial pictures must be kept "form-free" in my opinion.

Photographers should in genereal resist the introduction of forms and restrictions left and right. The whole consept of photography, above or belove the surface, as a way of documenting our world is being undermined by the introduction of various legisaltion and practice.

There are so many restrictions being introduced these days, mainly in the dry world, that I often contamplate changing my proffession. Intentions may be good (though often misguided) such as security or protection of privacy, or they are commercial (like artists, fotball clubs or whoever) to get more money for whoever they represent. If anyone of you live in New York you may be aware of the many photographers that has been manhandled by police for snapping a building etc, the suggestend ban on photography on the subway etc. etc. Photography is deemed something threahtening, something that need to be regulated.

Thus, photography is something we photographers should present as someting positive, hassle free, important for the society as an instrument for recording history, non-threathening, source of pleasure and fun, inspiration and all the other good things you can come up with.

Introducing realese forms to every person we meet and photograph, because we may someday get a call from Bennetton one day (yeah right!), is counterproductive. It only cements the feeling that having your picture taken is something you really must think about, check with your laywer, consult your wife and the dog....

And it would also eat away at your (certainly mine) creativity, all that paperwork, and explaining and discussing...just in case one day. No i don't think thats for me.

If you wanna be ready for that Benneton call, make sure you get the name and adress of the people you photograph, send them a picture, and contact them about the legal forms AFTER Bennetton has called!

Are the people recognisable?

Are they doing something that they would be doing normally or did you ask them to do it?

Will the picture be used in conjunction with wording that makes for further implication?

Are the people concerned you might be stealing their souls? (on some parts of PNG for example).

Will they suffer any material loss due to the publication of such a photograph?

Were they willing and co-operative subjects for your camera?

The human face is not a work of art (in the legal sense).

Model releases MAY be very occasionally necessary - I'd only use one if the shot has real advertising potential. You also need to differentiate between 'professional' and none 'professional models' - the latter category should be offered no more than a nominal fee (~£/$ 1) for signing a form. They have then had something but not enough to involve tax/insurance/third party liability insurers, etc. The paperwork isn't all the problem of the photographer!

And if the shot really is so good its going to sell to a major advertising client get a proper model's face pasted over anyone recognisable if you haven't got a model release form!!! Where there's a will there's a way.