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This is part 2 (of 2) of an interview with Seattle based lawyer, Venkat Balasubramani, who works with social media, rights, technology and more. We are talking about photography and law, licenses, rights and releases. Don’t forget to check out the first part of this interview.

Why are model and property releases important, and should photographers obtain them for art projects as well as commercial stock?

Model releases are key because the law generally recognizes publicity and personality rights, including for people depicted in photographs. When a picture of someone is being used on the side of a bus in an advertisement, the person’s personality/publicity rights are being exploited, and their permission is generally necessary. Art and reporting are somewhat different. While a model release is advisable, depending on how the person is depicted, the photographer may be able to make an argument that a release is not necessary. Often an art project will be designed to use a candid photograph and obtaining a release is tricky because it’s only logistically possible after the fact.

Also, from a licensing standpoint, most people require model releases in order to license a photograph so my advice is to always always secure a release. However, if you take a photograph of a crowd on a street do you need a model release for everyone depicted? Maybe not. The general rule of thumb is that if the individual is recognizable in the photograph try to get a release, because if you don’t you could run into hassles later on.

RF photography is based on common themes, but where is the line between drawing inspiration from others and plagiarizing them?



Another tough question that I don’t have the answer to off-hand – ideas themselves are not copyrightable, but the expression of ideas are. Artists and photographers take in a significant amount of input and generate ideas based on collective knowledge. Any art or photography is influenced by existing examples. The concept of a photograph of a “relaxed German tourist sipping a beer in popular Seattle tourist location” cannot itself be protected. If you set out to replicate the photograph then you may be getting close to the line.


If shooting on location, in a public place, what is the best way to deal with overzealous security and/or police?


I think it’s most important to know your rights. Photography which does not cause any traffic or safety issues from a public space is First Amendment protected activity. Police officers or public security officers do not have the right to ask you to leave, stop photographing, or to seize your camera. (You also have the right to photograph law enforcement while they are doing their jobs.) Unfortunately, we’re seeing more and more examples of law enforcement harassment of photographers and treatment of photography as suspicious activity. I’m representing a photographer as an ACLU cooperating attorney in one such case, and we’ve seen reports of numerous similar incidents around the country, including in Seattle. 


Maintaining your composure, being cooperative (while not forfeiting your rights) and calmly explaining your purpose are all important. I guess the big question to ask yourself is how badly do you want to make the photograph and not compromise your rights? Given the increased public awareness of this issue, it’s not as difficult as you would expect to find a lawyer to lend a hand, but often the photographer is required to undergo some cost in order to get the photograph or vindicate his or her rights. Simply being rebuffed and going home in response to a security office threat may not result in enough “damage” to take the trouble to go to court over. Getting permission in advance is often not feasible or results in compromising the quality of the photograph.

Two resources that are worth keeping track of: (1) Carlos Miller’s blog – he regularly reports on incidents of photographer harassment by law enforcement and (2) a document created by Bert P. Krages II.

Venkat has been practicing law since 1997. He has his own firm which he started in 2006, and represents primarily internet, technology, and media companies. He also represents several photographers, including an art professor who was detained for taking photographs in the City of Snohomish. He blogs at spamnotes.com, where he writes about legal issues relating to spam, privacy, and online social networks. Like many others, he is probably addicted to Twitter.

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