Model release for image without faces

Question

I am an amateur photographer [Edit: Working in Washington state, in the US] and I am looking into selling my work. One of my favorite photos contains two people I don't know, and I'm concerned about the legality of selling prints without a model release. Let me know if I'm asking in the wrong place or asking for too much.

The picture (portion included below) is of two men sitting on a park bench. Their backs are to the camera, and their faces are mostly turned away, but my understanding is that personality rights cover more than identifying features.

This was taken in a public park; there is no chance of ever finding these people to get a model release. Am I completely unable to sell this picture, or is it a fuzzier subject? If they were to find this picture and sue me, would I be open to unlimited liability or only for e.g. reasonable royalties?

If I didn't charge anything, but gave away prints, would that be any less problematic?

For that matter, is it even really legal that I took this picture without permission?

Thank you!

Answer 1

Variations on this question come up a lot:

• How do laws affect photography of non-humans in public when people may be in the frame?
• What are the legal repercussions of taking a stranger's picture in public?
• What is considered "public" in the context of taking videos or audio recordings?
• Is it legal to post a photograph that I captured of a stranger in the street?

The last of these is closet to your question but I think there is enough distinction that it is not a duplicate.

You do not give a jurisdiction; my answer is for Australia.

1. You can take pictures of whoever you please so long as you are in a public place or have the permission of the controller of a private place - there is no right to not be photographed!
2. You own the copyright in a photograph; the subjects of the photograph have no rights to it.
3. You cannot use someone's image for commercial purposes without their permission (i.e. a model release). Using the image as an image is not commercial use. You can sell the image, you can use it in a book and you can put it in a web photo library: you can't use it to promote or sell another product or service that is distinct from the image in such a way that there is or may be the perception that the subjects of the photograph are endorsing that product or service.
4. For completeness, you cannot use or sell images of child abuse - not that this is an issue here.

Think about it: if you couldn't take pictures of people without permission there would be no television or newspaper news. Here is a request from a major Australian newspaper for images of grand final crowds, they do not ask for model releases. If you look at the first image in the article (see below) it is clear that the 4 subjects have consented to be photographed (not that that is needed) but the people in the background haven't; I am reasonably sure no one signed a model release. Now, if the Daily Telegraph use this to sell their newspaper then that is OK; if they use it in an advertisement for a brand of face paint, wigs or novelty sunglasses it isn't.

Am I completely unable to sell this picture, or is it a fuzzier subject?

Sell as many as you can; good luck to you.

If they were to find this picture and sue me, would I be open to unlimited liability or only for e.g. reasonable royalties?

You would not be liable for anything

If I didn't charge anything, but gave away prints, would that be any less problematic?

It would have the same level of problematic i.e. none.

For that matter, is it even really legal that I took this picture without permission?

Yes it is legal.