Ask the Experts: Legal Questions Answered for Artists
by Leonard D. Duboff
Painting Models Who Are Homeless: What’s the Law?
Q. I’m gathering modern-day photos of the homeless for a coffee-table book. How do I handle model release forms when dealing with people in public places who don’t have an address or phone number?~ David Rosen, Eureka, CA
A. You’re wise to obtain model releases when creating a book such as the one you describe. As you imply, the individual depicted must sign a release permitting you to use his or her image. When obtaining a model release, there are two questions you must consider. The first question is whether the person depicted actually signed the release—not whether that person has an address or phone number, although that information is usually included on the release so that the person can be found later in case there’s a question as to the authenticity of the person’s signature on the release. The second question is whether that person has legal capacity, that is, whether the person has reached the age of majority (generally 18) so that he or she can legally sign a contract and whether that person has the mental capacity required by the law to sign a contract.
Thus, the only questions you should be concerned with are whether you have proof that the person depicted actually signed the release and whether the person has legal capacity. This can be accomplished by having one or more witnesses whom you would be able to call to testify, should a question ever arise regarding the validity of the model release. It would, therefore, be wise for you to work with an assistant who does have an address and phone number so that the assistant can serve as your witness when obtaining the model release.
I would go one step further and have the assistant prepare a document which indicates two things:
1. that he or she was present when the person depicted signed the model release and authorized the photo as well as the later uses of the photo in question and
2. that the person depicted appeared to be over 18 with the proper mental capacity to sign such an agreement.
I would then attach both a copy of the photo of the homeless person and the assistant’s statement to the model release so that these documents remain in your file, in case they’re ever needed.
Note that while this question is about photographs, the same analysis would apply in a situation where the artwork at issue is a painting, print or other form of artwork.
More Questions and Answers on Copyright Law
• Attorney Leonard D. DuBoff explains some of the nuances of artists’ rights.
Note: Copyright laws are subject to change. These articles reflect the laws in effect at the time they were written.
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