- You should refrain from using free photos in general to avoid copyright issues, but especially if the photos depict people: Every person owns the copyright for their likeness, and for the photo to be legal to use, every person included in it need to release their copyright with a Model Release document.
- The legal responsibility for using a photo in a WordPress online publication –or any other online publication– and any copyright infringement associated to it, always falls on the publisher, regardless of them being unaware of said infringement.
- To use a photo for commercial purposes, all models included must always sign a Model Release granting their permission to use their image for with such intention.
- You can use pictures you take yourself, as long as you understand the implications of taking pictures of models, landmarks and brands/designs and the responsibilities you automatically assume when doing so.
Don’t wanna be sued for improper use of a free photo? Read this! We explain what you need to look out for when using stock photos, free photos, or your own photos with recognizable people, in your WordPress blog or media.
You’ll be able to avoid your online content to become a ticking time bomb and continue being a WordPress Rockstar without worries.
Basic concepts you ought to know when using free photos in your publications
I guess you have used a free photo on your WordPress website before, right? Maybe one under a Creative Common license, maybe from Flickr or a similar site? Guess what: most people using free photo resources are not aware of the implications in using images that include models, or recognizable people. Even photos with recognizable parts of their bodies, like a tattoo for example, can potentially cause you legal trouble.
Here’s the thing: when you use a photo in your online publication, you and only you are responsible for that usage. From the very moment the image goes live on your website or online publication, you are responsible for any copyright or privacy rights infringed. Not the photographer who created the picture, nor the resource which gave you access to the image file. But you.
And equally important: the image of a person –or a recognizable part of their body– is copyrighted, the person owns the rights over their own likeness. This means that every time you want to use a photo including one or more people (models), you need to make sure the copyright owners have consented to your usage. The same applies to private property, landmarks and trademarks –logos and designs–.
The model’s consent to have their image used is legally expressed in a Model Release (MR). A Model Release is a document that states the person’s agreement to have their likeness included in the photo, and defines how this photo can be used and what the compensation is, among other details. By signing this document, the model is officially permitting the use of their image. Below you’ll learn all the details about Model Releases.
As you see, when using stock photography & free photo resources, it’s better to be aware of these requirements. Particularly when you feature a real human in the picture, to back you up legally.
Let’s jump right in and list the things you need to look out for when using stock photos, free photos or your own photos with people, to gain legal confidence.
Should you worry when using photos with models from stock photo agencies?
We said every image that you use in your online content that includes one or more recognizable people require you to have a Model Release signed from each of the individuals appearing in it.
All professional stock photography suppliers will always ensure they have all correspondent Model Releases, and arrange all relevant legal documents before selling photos to you, so you can be confident the images you buy from them are legally safe to use.
Some companies like PixelRockstar include double safety by adding a $10.000 USD insurance in the very unlikely event there is a problem.
What about people appearing in free image services?
It’s very unlikely for a free photo service to be checking any legal documents for the images they offer. And this is potentially very dangerous.
Even when images or photos are covered by a Public Domain, a Creative Commons CC0 or a GNU license (read our full Creative Commons and Public Domain licenses guide for more details), if the models included have not signed a Model Release, you could easily be infringing their rights with your usage.
Often times publishers and bloggers use images with people from these free photo services, thinking they are safe to use thanks to the CC0 or similar license, and are completely unaware of the possible infringement they might be doing.
You could assume that the norm for people sharing these photos in “FREE” photo services is that they are not aware of the legal implications in offering those photos under these kind of licenses without proper Model Releases, and that they do not intend to do any harm to the models.
But remember: you will be held responsible for any privacy infringement from using the image in your publication, regardless of what the intention of the person who shared the photo was, and despite you being unaware of the potential harm to the models.
If you happen to incur in copyright or privacy right infringement, the consequences can be dangerous, depending on your jurisdiction and on whether the model decides to legally pursue the infringement.
Because of the global differences in legislation regarding usage of photos depicting people, the safest option is to use paid stock photography for your online publication, avoiding free services in general, but especially when people and models appear in the images. Simply because the risk for your online business or publication is way higher than the few dollars you can save by not buying a legally safe photo.
Can I Ever Use photos with people without a Model Release?
The act of taking a photo of someone in a public setting without a model release, and further viewing or non-commercially showing such a photo in private, generally does not create legal exposure, at least in the United States.
In many jurisdictions it is also legal to use photos from people without having a Model Release for editorial purposes because of Freedom of Speech rights (which vary by country). The majority of public news publications are exempt from needing Model Releases. As we said, this applies when the person is in a public place. Photojournalists almost never need to obtain Model Releases for images they shoot for news or qualified editorial publications, even if they depict people, but this is a very small and limited market.
The only photos you can use without Model Release –and without legal risk– are those you take yourself as long you take into account the above conditions, and Property Rights and Brand Rights which we will cover later in further articles.
Let’s suppose you take a picture in public of a man in a park, falling from a chair because it just broke. Even if nothing happened to the person, you are capturing the image of them while falling and looking desperate because of it. You could sell the photo to the local newspaper for them to use it in a story of the broken chairs in the park, and you probably don’t need a Model Release for it as it’ll be used with Editorial intentions (to illustrate the topic of an article). But if you try to sell the image so that someone can use it for advertising or commercial purposes you will need a release.
If you run a purely editorial blog or online publication, images like in the example above could be used without Model Release. But before going ahead and publishing, check with your attorney, since laws can be very different per jurisdiction.
Commercial and Editorial Usage Differences
You just learned that the main requirements for images to be OK to use without Model Releases are that they are taken in a public space, and that they are used for editorial purposes (non-commercial). But what is the difference in Editorial and Commercial use?
Simply put, Editorial purpose refers to using a photo or image to accompany or illustrate an editorial piece of work. This use excludes any kind of for-profit intention directly bound to the image. As said above, news publications are the clearest and most popular example of Editorial use.
On the other side, Commercial usage includes all uses that aim at generating profit, like marketing and advertising, promotion, etc.
Having said this, you should also be aware of the dangers in using free photo services for editorial purposes. As they usually don’t check the legal status of the images they offer, it’s impossible to know where every image was taken, not even if the person who uploaded it to the free photo site is the actual photographer who took it. Like this, you could still be sued by models or photographer for using the images without permission, even if it was for editorial purposes only.
If you plan to use the photos commercially, which can mean for your corporate blog, newsletter or the social media profiles of your company, you must always make sure your photos are legally covered. And the easiest way to do this is by using stock photography agencies.
But first, let’s learn about what a Model Release (MR) is in the photo world.
What is a Model Release?
A Model Release, also known as a liability waiver, is a legal release document signed by the model (the subject) of a photograph, granting permission to publish the photograph to be used commercially.
Model Release forms and liability waivers are a legal area related to privacy and is separate from copyright in most jurisdictions. The legal issues surrounding model releases are complex and can vary in your country.
A release is always required for publication of a photo taken of an identifiable person used for trade or direct commercial use, which is defined as promoting a product, service, or idea. Publication of a photo of an identifiable person, even if taken when the person is in a public place, that implies endorsement, without a Model Release signed by that person, can result in privacy right infringement with civil liability for whoever publishes the photograph.
An example Model Release Form (Please don’t use this model and check with your attorney what the correct model release is for your jurisdiction, needs and use):
In exchange for consideration received, I hereby give permission to [ your name here ] to use my name and photographic likeness in all forms and media for advertising, trade, and any other lawful purposes.
If Model is under 18:
I, [ your name here ] , am the parent/legal guardian of the individual named above, I have read this release and approve of its terms.
Photographer responsibilities when photographing people
Usually, no Model Release is needed for the act of taking a photograph. Rather the Model Release applies to the publication of the photograph. Liability rests solely with the publisher, except under special conditions.
The photographer is typically not the publisher of the photograph, as they commonly license the photograph to someone else to publish. It is typical for the photographer to obtain the Model Release at the moment of the shooting, not merely because he is present at the time and can get it, but also because it gives him more opportunity to license the photograph later to a party who wishes to publish it.
Any image or photo creator needs to take into account that the object (a person, building or brand) reflected in his/her photo or illustration also has a copyright, and who owns it needs to give its permission to have it included in the image for commercial use. They need to be aware that while they can release their creative process and resulting photo as Creative Commons CC0, that does not mean they have the power to release the model’s copyright as well.
As a publisher, you need to be aware of this too, and understand that even when a photographer or photo creative gives you the right to use their images for free, they are not giving you the model’s consent for you to use the image: you still need a Model Release in order to legally share the image.
Stock Photography agencies take care of all this legal background work. And while a stock agency can make mistakes, they are usually insured and have specialized staff in dealing with all the legal details that need to be taken into account to evaluate a photography or image before it can be sold to their customers.
In the case of PixelRockstar we offer an insurance for our customers that covers for the eventuality of these mistakes with $10.000 USD per case through our insurance.
The PixelRockstar Digital License difference
The PixelRockstar WordPress plugin has been created from the start to allow WordPress online publishers to easily search within WordPress for photos and images, download photos and images to their Media Library and add them to WordPress as a featured image or article image. Of course this includes photos of people in all situations of life, to give your online publication a human touch.
Our custom-made Digital License allows for publishing, Social Media and Newsletter use. This means that when you publish a photo in your article, the use of that photo in your newsletter and other social media channels is covered by the standards you can expect from any stock photography company adapted to your needs as a WordPress online publisher.
Are you publishing your own WordPress corporate or personal blog? If you need images with people and other uses to illustrate your articles, get to the safe side and use PixelRockstar! Focus on your content and we take care of the details, to make using images and photos in your online publication to be a joy without any hassle.
Why we’re doing this
The article is part of the education series at PixelRockstar, to share our image knowledge with the WordPress community about legal aspects of usage of photos in online publications. While we are writing this for the WordPress community the content is relevant to any online publisher.
In our next article we will cover what a Property Release is and why it is important to understand it to use photos of landmarks with confidence.
Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.