permissions and releases

Whether permission and/or model releases are required for photography is a subject that frequently causes confusion. I have seen a lot of problems arise through clients charging ahead, sometimes on the basis of overcautious legal advice, and frightening subjects silly with draconian and unnecessary paperwork. On one occasion parents were so alarmed by what they were asked to sign that this led to abandonment of a whole shoot after it had been photographed.

It is necessary to understand the difference between permission and a model release, and that they serve very different purposes.

Permissions in public places are not usually required

In general photography of people and places has no legal requirement for permission when carried out in public places. It is often a good and polite idea to ask, but it is not necessary.

The status of a location, as public or private, is fundamental to what one may or may not photograph without permission, yet is often difficult to ascertain. Roads, pavements and footpaths are usually public Right of Way and many spaces such as parks and woodlands allow free public access. However although open to the public, parks in particular usually have bye-laws restricting photography. There are also a great many public spaces that are in fact privately owned, such as shopping malls, hotel lobbies, carparks, railway stations, and every building behind the 'building line'. Where there is private ownership, permission is required from the landowner or their agent.

There are exceptions to the general right to take photos in public places, eg a photograph taken from the street that violates someone's reasonable expectation of privacy. There are also statutory restrictions based on security of certain installations and other special cases such as the precincts of a court. Railway stations and markets often have their own bye-laws prohibiting photography, and some airports such as Heathrow have their own legislation and police force. A more surprising prohibition arises on land open to the public via open access legislation. Here photography for any commercial purpose is prohibited.

Buildings and public works such as bridges or sculpture in public places do not have any protection under Copyright legislation in UK (although care has to be taken over aspects such as logos, which are usually registered trademarks).

Despite what many people believe, they do not own copyright of themselves - there is no copyright in human faces - so no permission is required on that basis.

In general, exactly the same law applies to children as applies to adults. There is no prohibition on photographing minors in public places, although public fears about paedophiles can lead to suspicions and difficult situations. However it can be a criminal offence to allow publication of a photo of a child who is subject to child protection measures if it allows identification. The offence is not committed by the photographer nor publisher but by the carer. For more about this Kafkaesque situation see the 'permissions and children' section below.

Permissions on private property are always required

In theory at least, permission is required for photography on private property and should be obtained from the landowner or their agent. However, unless there are privacy consideratiions it is safe to assume implicit permission unless or until it is explicitly forbidden to take photographs. Any further photography then comprises a civil trespass. In certain civic areas and public parks, byelaws often apply which restrict photography.

In practice permission is often waived for amateurs but restricted for professionals, or subject to payment of often ludicrous fees and copyright grabs or other terms.

Assuming permission is forthcoming, rights of subjects are subsidiary. If a landowner agrees to photography in their shopping mall, members of the public have no more right to object than if they were in the public street. That is the basis of CCTV surveillance too.

It is important to recognise that you cannot photograph people in locations or circumstances where they have a reasonable expectation of privacy without their explicit permission. Locations such as interiors of homes and fenced back gardens are private, whereas open front gardens and house frontage are not.

Photography carried out without permission on private land is not unlawful. The landowner may insist that photography cease, and may use reasonable force to eject the photographer if they do not leave when requested. The landowner may also have a case for civil trespass, but has no power to demand handover of images or equipment. In general no claim over copyright of the images arises, although economic copyright (the right to earnings derived) can be forfeit if the photographs undermine the landowners' revenues from photography.

Permissions and Children

In general the law is no different for children than it is for adults but permissions in schools and other areas where children or vulnerable adults are cared for are a something of a special case. Child protection law is a considerable mess where this photography is concerned, and staff are placed in a difficult position where they are more or less obliged to be obstructive 'just in case'.

Under the Children Act 1989, children who are 'at risk' acquire special rights of privacy ('the rights of the child') for children who are a ward of court, subject to a child protection order, or on the at-risk register. Part of this right to privacy is anonymity about their status. Most schools and similar institutions have a fair number of such children and - here's the kicker - staff potentially commit a criminal offence by allowing their rights to be violated. A perfectly innocent photograph that (say) allows the location of a child to be deduced by an estranged violent parent could land the staff member in gaol.

In practice this need not be a problem, so long as the institution is aware which children may be photographed and which may not. Most schools now maintain registers of parental permissions, and will know which children may not be included.

Occasionally Criminal Records Bureau checks are discussed in connection with photography. CRB checks are designed to ensure children are not exposed to carers with prior convictions nor other history of suspected child abuse. CRB checks are not the same as Police checks, which are available to individuals at a local police station, as a personal record of criminal history.

At present there is no mechanism whereby freelance photographers can obtain CRB checks. They were designed specifically for vetting of carers and are only obtainable by employers.

Some specialist schools photographers have them, obtained by the companies that employ them, as do staff photographers employed by Times Educational Supplement. But lack of a CRB check should not be a barrier to photography; all contractors and visitors are required to always be supervised and accompanied by CRB checked staff whilst on the premises, by OFSTED regulations. Supervision protects everybody, and allows the staff to ensure no permissions issues arise.

Model releases

Model releases cover entirely different ground from permissions. A model release is a binding contract that agrees to relinquish specific future claims of equity in return for a 'valuable consideration'. This is usually payment, but can be prints or some other agreeable exchange. However it cannot be nothing; without 'valuable consideration' no contract is formed.

The requirement for model releases arises only in advertising and marketing use of images, where endorsement by the subject is implied. A simple model release does not provide for defamatory use, distortion or misrepresentation of the subject, it simply says in effect 'I am not later going to demand a further fee'for the purposes to which this photograph may be put'. More complex model releases can waive extensive rights of redress for defamation, privacy, publicity rights etc. For the sort of work I do these are unnecessary and intimidating and cause more problems than they prevent.

One other important issue revolves around model releases and minors. If a model is to be paid and is under 18 they must be licensed models else an offence is committed. Licensing is a function of local authorities.

Property releases

Property releases are required in the specific instance that a photograph includes a copyright or trademarked item or design. The release licences the photographer and client to copy the work into a photograph and to make commercial use of the photograph. There is a trend toward owners of recognisable buildings asserting that a property release is required for inclusion of their property in a commercial photograph, or sometimes any photo at all, but copyright law excludes buildings and does not support this assertion in UK.

As with model releases, a property release is a formal contract requiring valuable consideration. Property releases tend to be seriously expensive!

NB: these notes are for informal guidance only and do not comprise legal advice.