Thursday, March 6, 2014

Canadian Gallery Wants Photo Releases

photo by Lewis Hine Power (1920)
Dear Rich: A gallery in Canada offered me a solo exhibition next winter of a series of photo portraits of New York auto mechanics in their workshops. The owner is asking me to provide signed model releases from all the subjects, but unfortunately I don’t have any, and it would be impossible for me to get most of them now since I’ve lost touch with most of the subjects. I know in the US a model release is not usually required for the display of fine art and editorial photography, but I don’t know about the rules in Canada. But I also believe that the odds of any of my subjects complaining are extremely low. Is there a boilerplate assumption of liability that I can offer the gallery in lieu of model releases? Model releases release photographers (and their assigns) from liability for defamation, invasion of privacy, and most importantly, the right of publicity. The publicity rights would not affect fine art sales and are only triggered by a reproduction of the photo in connection with a product or service. The Canadian province in which you are exhibiting has similar common law right of publicity rules, and therefore, the most important reason for using a release is eliminated.
Release for lack of release. In any case, if you want to contractually assume liability, you could use a simple indemnity statement like this:
Photographer acknowledges that he has not obtained photo releases from the subjects of his photographs and agrees to indemnify and hold harmless Gallery, its assigns, licensees, and purchasers from all costs and expenses (including attorney fees) in connection with any successful third-party suit or claim arising from or based upon the lack of model releases.
If that doesn't work -- for example, because the Gallery wants broader protection -- substitute "photographic content" for "lack of model releases." In that case you will be assuming liability for all content-related claims such as copyright infringement.