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When Model Dislikes Images After Photo Shoot, Does She Have The Right to Prevent Publication?

This is a question you see all over the web. Who has the superior right to the publication of images after a shoot, the photographer or the model? Can a model, dissatisfied with the results of a photo session, legally bar the photographer from publishing the images? This answer comes down to the model's right to privacy vs. the photographer's copyright. Let's start with the easy scenario: if the photographer has obtained written consent (e.g., a model release) from the model for the exploitation of her images, he has the unqualified right to publish them. Remember, he already owns the copyright to the photos. Combine that with a model release and it darn near equals absolute power with respect to publication.

But that's not usually what happens. In the real world, test shoots occur all the time without a model release being signed. And relationships that started off great in the planning stage can turn sour after the shoot and models will ask, or even demand, that the photographer refrain from posting their images. But does the model have this right, legally? In New York and states with privacy statutes similar to New York (e.g., Virginia, Massachusetts, Rhode Island, Wisconsin*) the answer is "yes," the model can legally prevent publication. If the model hasn't signed a written release, it doesn't matter whether her conduct indicates consent to publication or she orally agreed thereto - the photographer has no right to post those images.

But in California and Florida, consent to publication may be written or oral and may also be implied via conduct (e.g., emails back and forth about the shoot, showing up and sitting for hair and make up, etc.), so the photographer can post the images despite the model's insistence to the contrary. Mind you, we're talking about consent to merely have the photos published. Showing up at a shoot does not imply consent to have your image used to promote a product without getting paid, whether you're in California or not.

Conclusion: Photographer and model fight after a shoot and model demands that photographer "lose her photos" and never publish them anywhere. No release has been signed, but conduct and conversations show the model intended to shoot with the photographer and knew he would publish the images. In New York, the model will win this fight, but not in California or Florida.

*Va. Code Ann. § 8.01-40; Mass. Gen. Laws Ann. ch. 214, § 3A; R.I. Gen. Laws § 9-1-28; N.Y. Civ. Rights Law §§ 50 to 51; Wis. Stat. Ann. § 895.50.

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