I’d personally rather see nonprofits take a *small* risk in some of these gray areas (newsletters are not always fundraising vehicles) than to be paralyzed to the point that they don’t use photos at all or blur faces, which just looks ridiculous.

As for your opening lines, I’m sorry if you are being plagiarized elsewhere — I’ve blogged on copyright after being ripped off myself — but I can assure you that I wrote this post myself.

“…if you are publishing a photo for information or educational purposes, not commercial purposes like product advertising, you can typically print it without a model release. The majority of nonprofit publications fall into this category.”

This is very much NOT true. “Commercial” purposes is a misnomer. The test is not whether the company using the photo is profitable or not, it’s whether there can be an association (or affiliation) made between the person/people in the photo, and the “user” (publisher) of it. In precise terms, the law reads, “…whether the person could be viewed as an advocate or sponsor of a product, idea, or service.”

Most non-profits have to raise money, and that fund-raising process is why most of their publications exist. If the people in a photo that is placed in a “newsletter” could be viewed as advocates or sponsors of the organization, then a release is required.

The only exception would be for materials that truly are educational in nature, and unless the organization produces educational textbooks, AND are not associated with religious or political groups or ideas, then the use of photos in those books do not need releases.

This applies to nonprofits exactly the same as for-profit companies–there’s nothing special about non-profits in any way whatsoever…again, as it applies to model releases.

As for the “band” — the reason why a model release is technically required, is not for the reason your lawyer said (which I’ll mention next). It’s because the photo was shot in a private setting for a private event. they were paid to show up, and as such, they have a right to privacy — this is just how privacy laws are written.

All that said, you’re correct to point out that not having one bears minimal risk. For you to get in hot water with the band, the use of their photo would have look like they were “advocates or sponsors” of the organization, not just a hired band. And that’s probably what the lawyer was thinking when he advised that they have a release. That’s a much higher bar to clear (making it harder to prove). The difference is a matter of penalties — violating their privacy (by publishing the photos without a release) has different damage awards than if you violated their rights of publicity (which would have been the case if they were deemed to be advocates and sponsors of the event, and by extension, the organization).

Again, the real-world would not have a band try to sue a non-profit for this, and that brings us full-circle to why most non-profits think or care about having releases: most of the time, nothing happens and no one cares. But it’s still important to mention because there are many non-profits who take positions that are not that popular: political, religious, or “activist groups”. The hotter the button/issue, the more likely someone would strenuously object to their photo being used in connection with that organization.

Lastly, the “primer” link you provided is full of incorrect (and greatly over-simplified) information.

You can read much more about this here: http://www.danheller.com/model-release-primer
and here:
http://www.danheller.com/model-release

Full details can be found in the book I’ve written on the subject:
http://www.danheller.com/model-release-book

Dan Heller