There is quite a lot of information available on model releases and there are quite a few people who are still confused about the topic. When it comes to nude photography, there are some aspects that are not often talked about. Many of the principles are exactly the same for nude and non-nude photography, but there are also differences. Many wiki sites and modeling forums have information, some of which is helpful, but some of which is misleading or flat-out wrong when applied to nude photos. There are a couple of good legal books for photographers that I recommend. These appear at the bottom of the post.
Luckily, it is not the norm to end up in a legal dispute regarding your nude photography. The worst thing that I have experienced is having a publisher delay acceptance of nudes until I could get a proper release signed by the model. But you can save yourself time and potential headaches by having a proper release for your images.
Myth #1: I need a model release in order to legally take nude photos.
Response: Wrong. Model releases are about permission to use the photos, not permission to take them.
Myth #2: A model release protects my copyright.
Response: Wrong. A model release gives permission to use photos and has nothing to do with copyright.
Myth #3: I don’t need a model release if I shoot nudes in a public place such as the great outdoors.
Response: Yes, you do. This myth stems from fact that people in public places do not have a reasonable expectation of privacy. However, a claim of invasion of privacy is not the only thing a model release protects you from. If the images are used for advertising, you need a release. If the use could in any way be construed as malicious or scandalous (not hard to image with nudes photos, especially years down the road) you have a problem. It’s best to be clear about what you intend to do with nude photos, so put it in writing. Shooting in public doesn’t mean you won’t want a release.
Myth #4: I have a first amendment right to distribute my photos so I don’t need a release.
Response: Your first amendment rights are not carte blanche to distribute nude photos when someone else might have a reasonable expectation of privacy, a right to portray others in a false light, etc. There is plenty more going on than first amendment rights when it comes to releases for nudes.
Myth #5: I don’t need a model release if I’m not making money off my photos.
Response: See myth #4, above. While it’s true that you can sell photos of people without their permission under some circumstances, there is more at play with nude photos. Even if you’re conducting a gallery show or displaying them on the Internet you could be subject to claims including painting the model in a false light if you didn’t establish intended uses clearly in writing.
Myth #6: A generic model release is fine for nude images.
Response: On the contrary, a model release for nude photographs should, at a minimum, state that the model is releasing nude images. This is especially important if any of the images look like they could have been an instance of the model mistakenly revealing more than intended. A good release contains a description of what is being released.
Myth #7: I only need to pay the model $1 or give her a copy of a photo to make the release enforceable.
Response: A compensation clause in a release is used to show that both parties have given “consideration”. This is one of the requirements for having a contract. If you do end up in a dispute, it doesn’t look good to have a payment that is well below market rates for services if you are in the business of selling the images. Inequitable compensation is a big red flag especially if the model has little experience and you have much. If the compensation clause is in question, the whole model release is in question. Pay fair rates.
Myth #8: If the model doesn’t read the release it’s not valid.
As long as she signs it, it is valid.
Response: Both of these are wrong. Most releases are written as contracts. If someone signs a contract without reading it, that fact alone does not invalidate the contract. It is up to everyone to read what they sign. However, just because someone signs something, doesn’t mean you have a contract. If you trick or pressure the model into signing without reading, you definitely don’t have a valid contract. So don’t rush the model and don’t try to fool her with long-winded verbiage in the release. If there is no meeting of the minds, there is no contract.
Myth #9: The release should be signed before the shoot begins.
Similar Myth: If I’ve already worked with a model and have a release, I don’t need a release for our second shoot.
Response: I can’t think of a good reason to do this and the practice could be very problematic when shooting nudes. Some photographers want to get the release out-of-the-way. If the model is inexperienced or has questions about what kind of permission and uses you’ll be asking for, you can show her the release before you shoot but don’t have her sign it. It’s difficult to enforce a model release that pertains to images that do not yet exist when the release is signed. Court cases involving model releases have been awarded based on the sole fact that it was not clear as to which specific photos were being released. The model could claim that she didn’t know the extent of nudity involved and thus there was no meeting of the minds and no binding contract. If the photos don’t yet exist, you don’t have a very solid release.
Myth #10: A model release provides the photographer better protection if it is long with lots of legal language, especially in the case of nudes.
Response: Just about the opposite is true. The release need only be long enough to clearly establish what the agreement is and to account for any contingencies. Unnecessarily complex or repetitive language can actually weaken a release. Remember, a contract documents an agreement and the more complicated the language the less plausible it is that both people were in agreement.
I assure you, I have a release for all my photos. Model: Tess I.
Disclaimer: I’m not a lawyer and laws vary by location. Enjoy the above generalizations, don’t fall for myths, and seek qualified experts for your legal questions.
You may enjoy reading:
The Law (in Plain English) for Photographers
by Leonard D. Duboff
Legal Handbook for Photographers
by Bert Krages
If you’d like to read more about model releases for nude photography, as well as the interpersonal aspects of working with models, you may enjoy my book Up to My Eyeballs in Nude Women. It covers recruiting models, preparing them for a shoot, getting great results in the studio, and a solid follow through (which includes, of course, an appropriate model release.) This book includes a sample model release that is like what I use.