Privacy and Liability
Considerations for models in architectural photography
What you need to know to protect yourself and comply with privacy laws when using models in architectural photography.
The built environment is designed for people, so it’s no wonder that we expect to see people in architectural photos. In corporate office photography, we want to see employees using the spaces that designers created for them for focus work, collaboration, and socializing. In residential photography we want to see the residents relaxing and enjoying their home. In public and institutional project photography, we want to see the spaces activated by people moving through and experiencing moments of wonder, inspiration, or learning that these environments are intended to impart. People are crucial in architectural photography, as they provide energy, motion, a sense of scale, and generally make architectural photos more dynamic and personable.
But before asking a passer-by to “be in your shot”, designers and photographers need to understand privacy and liability considerations, and ensure they comply with all applicable laws to avoid a potential host of issues down the road.
There is no “One Size Fits All”
There is no one overarching rule that governs privacy and liability for commercial photography. It varies by jurisdiction, by type of space being photographed, and even by age of models. For example, if the project being photographed is an outdoor amphitheater in a mixed-use development, privacy considerations will be very different than if you’re photographing a classroom full of minors in a local middle school.
In this post I will share my experience and best practices, but it should not be misconstrued for legal advice. I encourage designers and photographers to proactively raise this question with the owner or administrator of the facility being photographed.
There are two things you can do before a shoot to minimize your chance of running into problems with privacy laws:
Bring enough model release forms for everyone at the shoot sign one
Check with the client whose facility is being photographed for any restrictions on having the people present be captured in the shots - before the shoot!
Let’s take a look at both of those items in more detail.
Model Release Forms
What are Model Release Forms?
Model release forms are a type of contract document presented for signature to a person (or guardian of a person) being photographed. There are no specific requirements for language, but typically the form states that the person signing consents to being photographed, understands how the photos may be used, and releases the form holder from liability for using their image in all future commercial use.
The forms include the name of the entity being released from liability, 1-2 paragraphs detailing the terms described above, and a place for the model to sign and date the document. Templates can be downloaded from a variety of sources, including here and here, or you can always create your own.
Who needs to provide Model Release Forms to models?
That would be the person or entity what will be using the photos for commercial purposes. For example, if a contractor is photographing the custom home he built to feature on his website, and he wants the owners to be in the photos, the contractor needs to provide model release forms to every resident that will be in the shots, including kids, whose forms will be filled out by the parents. If an architectural firm is hiring a photographer to photograph offices they designed for “Company A”, the architectural firm needs to provide the form to any employee of Company A that will be in the shots. If, however, the photographer asked the architect to shoot a project for their own portfolio, but the architect won’t be purchasing those photos, the photographer would need to provide the model release forms.
Who needs to sign Model Release Forms?
This answer can get convoluted, but in a nutshell: anyone not affiliated with the photographer and person or entity purchasing the photos that will be recognizable in the shots. If the architecture firm is photographing offices of Company A and they bring their own staff to the shoot, the staff members don’t need to sign anything. However, any employee of Company A that makes it into the shots should sign a release form. So does any model that was hired specifically for the shoot.
An exemption to this is public spaces. If the environment being photographed is a public outdoor space like a green lawn, amphitheater, dining patio, sidewalk, observation deck, etc, it’s implied that the right to privacy is waived, and people that make it into the shots don’t need to sign a release form. In situations like these, I use my best judgment. If the photo is a wide shot with a sizable crowd, I shoot without asking anyone for a release. However, if someone in a shot is really prominent and in focus, I will ask that person if they mind being photographed, and if they do, I look for a different angle. It’s not legally required in public spaces, but it is a courtesy, and helps to avoid any potentially sticky situations.
In public spaces, like this High Line scene, people that make it into the shot don’t need to sign a release form.
Another thing to keep in mind is that whole “recognizable” bit. In architectural photography, people often appear blurry to create an effect of motion. They can also be photographed from the back or have their faces obscured. People are not the subject of an architectural photo, they are an enhancing element of the story, and this can be used to your advantage, to avoid dealing with forms.
As long as your subjects are blurry, too far away to be recognizable at full resolution, have their faces covered or are photographed from the back - no waiver is required.
Photographing minors
It’s important to note that rules for photographing minors differ from those that apply to adults. Even in public spaces like the ones I describe above, kids cannot be photographed without permission for commercial use. Think of celebrity photos: the paparazzi can hound celebrities to the ends of the earth, as long as they’re in public, but they are not allowed to photograph their kids.
If the project being photographed is a school, check with them ahead of time. Schools often have parents and teachers sign a general photography waiver at the beginning of the year that covers projects like architectural photography.
Schools often have their students and teachers sign a photography waiver at the start of the year, but always inquire with them before photographing. Even with a waiver, I try to make kids in my photos less prominent and individually recognizable for an extra layer of security.
In all other environments where minors are present, make sure to obtain a signed form from their parent or guardian, OR ensure they are not recognizable in your shots.
Plan Ahead
Just bringing a stack of model release forms to a shoot and hoping for the best is bound to go sideways. One thing I learned in my years of photographing for a variety of public and private clients is to sort out the requirements around privacy ahead of time as part of general pre-shoot logistics planning. Here are just some things I’ve encountered that had to be factored into how the shoot was conducted:
The company whose office was being photographed did not want any of its employees in the photos. One time when this happened we shot during the weekend. Another time, we had to shoot during business hours and make sure none of the employees who made it into the shots were recognizable (this required significant post-production)
The company did not mind its employees being in the photos, but was adamant about not showing any information displayed on computer screens or white boards. Remember that privacy and security applies not only to people but also to IP that can be found on premises.
A student in a school I was photographing was in witness protection. The administrators accompanied me throughout the entire shoot to ensure that student wasn’t in any of the shots.
Sorting out all of these specifics will significantly help with running the shoot and minimize post-production work. When coordinating with a client, make sure you’re dealing with the right person who is knowledgeable and authorized to deal with this matter. A well meaning admin’s assistant may try to be helpful but provide incomplete information.
A(n Important) Technicality
In most cases, the Model Release Form is considered a technicality. I’ve never run into a situation where someone refused to sign a release or it caused a larger problem for the project. However, that doesn’t mean anyone should feel comfortable sleeping on this subject, avoiding it because the client is a friend, or because someone feels it’s unlikely to come up as an issue. Circumstances can change down the road, as can licensing agreements, as can relationships between parties. Ensuring you are compliant with all applicable privacy laws and in good standing with your paperwork is an important part of covering all your bases and protecting yourself and your business.
