What Nonprofits Need to Know About Photo Releases

When considering whether to use a photograph to promote your organization, you need to evaluate two things:

• Copyright (Do we have the right to use the photograph?)

• Publicity Rights (Do we need a photo release for individuals or property shown in the photograph?)

In our last article, which you can find here, we discussed copyright basics, including when you have the right to use a photograph not created by you or someone working for your organization.

The following discussion of publicity rights offers some guidance to nonprofits in the United States about when they should obtain a photo release for individuals or property depicted in a photograph that the organization intends to use for promotional or “commercial” purposes.

We’ll also discuss a second type of use—“editorial use”—that does not require a photo release.

Commercial Use

Individuals have rights in their identity—known as “publicity rights”—and any unauthorized use of a person’s identity for commercial purposes violates these rights.

Two obvious illustrations of commercial uses of photographs:

• Images on a billboard selling a product or service

• Images on a product’s packaging

For nonprofits and nongovernmental organizations (NGOs), commercial uses include other circumstances which are both less obvious, and more common, than the above examples.  They include photographs used for:

• Promoting the organization

• Marketing

• Soliciting donations

• Thanking donors or corporate sponsors

• Soliciting volunteers

Editorial Use

Of course, not all photographs are used for commercial purposes. Some are used for editorial purposes, such as to illustrate a newsworthy or human-interest story.

Photographs used for these “editorial” purposes do not require photo releases. Editorial uses of photographs include those that illustrate:

• Educational texts

• Critiques

• Information of public interest

• Stories*

*Note that while “stories” are commonly listed as an example of editorial writings where the accompanying photographs would not require photo releases, stories about a nonprofits’ clientele, volunteers and supporters are usually commercial in nature—because these stories are frequently used to solicit funds, recruit volunteers or otherwise promote the organization. If so, photographs accompanying such stories would require photo releases.

© Kevin Suttlehan/American Red Cross

Here are two examples of editorial uses of photographs by nonprofit organizations:

1. A disaster-response organization responds to a local flooding disaster and posts on social media photos of their volunteers assisting victims of the disaster, along with a narrative explaining what happened and how many people received assistance. The individuals shown in the photos did not sign photo releases.
   
   Was this a commercial or editorial use of the photos?  Most likely, this was an editorial use because the nonprofit is providing information of public interest about a recent incident without soliciting donations or otherwise seeking to promote the organization.
   

2. An organization dedicated to finding a cure for a specific type of cancer posts on social media photos of people at a symposium in connection with an article describing a recent discovery in the field of cancer research.
   
   Was this a commercial or editorial use of the photos?  Again, most likely, this was an editorial use because the nonprofit is providing information of an educational nature without soliciting donations or otherwise seeking to promote the organization.

In each of the above examples, what would change the apparent editorial use of the images to a commercial use?

• A solicitation for donations

• A promotional narrative touting the good works of the organization

In all cases, it depends on context and how the photograph is used.

Sample photo release language.

Photo Releases: A Step-by-Step Guide

What is a photo release?

• A photo release is a document signed by a person who is consenting to the use of their image or likeness for a commercial purpose.

What does a photo release cover?

A photo release documents a person’s consent to use some or all of the following:

• Their likeness

• Their statements

• Photos of their property (such as their home)

• Photos of their minor children (if they are present)

Some releases cover all of these, such as the sample release shown above.

When do you need one?

• It depends on how you are going to use the image.

Is your intended use commercial or editorial?

• If editorial, you do not need a release.

• If commercial, it depends on who and what is in your image.

Are there “identifiable people” in the image?

• If yes, you should get a photo release before using the photo for a commercial purpose.

• When considering whether you have an “identifiable” person in the image (as opposed to someone who is in the backround of the image, and not directly facing the camera or out-of-focus), it is sometimes helpful to consider whether the person would recognize themselves if they saw the image.

Is there “identifiable property” in the image, such as someone’s home or business?

• If yes, you should get a photo release from the property owner before using the photo for commercial purposes. 

© Kevin Suttlehan/American Red Cross

Are there trademarks in the image, such as a sports logo on someone’s shirt or a brand logo on an automobile?

• Trademarks are intellectual property, and some companies will not consent to any use of their trademark—even in a nonprofit organization’s promotional materials. You can ask, but plan on finding another photo if your intended use is commercial.

Getting the Photo Release

In our experience, most people gladly agree to sign a photo release allowing the organization to use their likeness for all purposes. 

This includes a nonprofit’s staff, and its volunteers and supporters. Some of the most important photographs documenting a nonprofit’s mission, however, include the individuals served by the nonprofit.

Here, remember that there can be many legitimate reasons why certain people do not wish to be photographed, including:

• Survivors of domestic abuse and other violent crime

• Undocumented immigrants

• Survivors of recent disasters, still dealing with the stress of their experience

In these and similar situations, we rely on a nonprofit’s staff or volunteers—who would best know their clients—to identify individuals who might be willing to be photographed.

For those individuals willing to be photographed, they simply read and sign a photo release, either before or after they are photographed.

Some additional points:

• Immediately after a person signs a photo release, it is very helpful to to take a quick cellphone photo of the individual holding the photo release so that you can match their name with the photos in which they appear (making sure the text of the release is legible in the photo).

• In the United States, releases should be printed and available in both English and Spanish, and possibly additional languages, depending on the communities you serve.

• In the case of an adult who cannot read but who has agreed to be photographed, it is possible to videotape someone reading the contents of the photo release followed by the consenting individual’s verbal response. Store the resulting video as you would store copies of all written photo releases (which are best stored electronically, after photographing or scanning).

• Note that outside of the United States the rules vary, but in some countries, the privacy protections for individuals exceed that of the U.S.

© Kevin Suttlehan/American Red Cross

Best Practices for Nonprofits

1. Have procedures in place for evaluating:
   - Copyright (do we have the right to use the photograph?)
   - Publicity Rights (do we need a photo release for individuals or property depicted in the photograph?)

2. Ask staffers and volunteers to sign photo releases when being onboarded, and periodically thereafter, especially prior to major events that will be photographed.

3. Consider investing in branded clothing, nametags or pins for staffers and volunteers. Ask them to wear these branded items at events that will be photographed or, at a minimum, to avoid wearing clothing that contain prominent logos of other brands.

4. At major events such as fundraisers, inform all participants at the time of ticket purchase or registration and by posted signs near entrances, that the event will be photographed and videotaped.

5. Honor requests by anyone at any time not to be photographed.

6. If anyone complains about your use on social media of a photograph that includes their likeness, take it down (or archive it) immediately, even if you think you had a right to use the photo as you did. Follow up and speak with the individual to minimize reputational harm to your organization. Some may even change their mind.

7. When in doubt, seek independent legal advice to avoid any potential liabilities.

About Us

We are a New York-based photography services company specializing in crafting visual narratives for nonprofits and nongovernmental organizations (NGOs).

Our expertise:

• Documentary-style photography

• Drone photography and videography

• Disaster response photography

• Visual campaigns for fundraising and advocacy

• Event photography

• Headshots and environmental portraits

Cover photo:  © Kevin Suttlehan/American Red Cross

Contact us to learn more about what we can do for your organization.

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