Model Releases for Street Festival

Participants in San Francisco's
Bay to Breakers Race/Party

Dear Rich: I have a question about model releases for a large, public, 2-day street festival. From what I can determine, I would not need a model release from the attendees that I photograph (there will be LOTS of them) unless I sell them, even if they are recognizable and the main subject of the photo. Is this correct? If the photos were to be sold or used commercially, would a release be required? If a release is necessary (even if it is just to cover our butts), to ease the burden of obtaining hundreds of model releases each day (I would not have time to take pictures!!), would it be legally binding to have a sign at the entrance to the festival (or printed on the tickets) stating something like: "Photographs will be taken during this festival. Selected photographs could be used commercially and in festival promotions. If you do not wish to have your photo taken, please inform the photographer." Yea! It's summer and the time for street fairs. We remember being in bands and playing at certain street fairs in San Francisco where photography would have been a problem because of the lack of a dress code (unless wardrobe malfunction counts as a dress code).
Right, you had a question(s). Photographers can reproduce and sell copies of photos of people in publicly viewable situations like street fairs. Newspapers and websites can reproduce those images if the pictures are used for "informational" purposes. But an advertiser can't use the same images of people to sell products or services if the person in the ad is clearly recognizable. That's because the advertising use implies that the person endorses or is somehow associated with the product.
Can you use a blanket release? Posting a sign may help your claim and it could be sufficient to use the photos to promote the street fair. But it probably doesn't meet the standards of a model release contract required for most commercial advertising uses. That's because the street fair participant doesn't really have an opportunity to assent to or to reject the release (something that is much easier to do if people have to pay for the tickets). Your present opt-out is for the participant to tell the photographer, 'No.'  But what if the participant isn't paying attention when the photo is taken and doesn't notice the photographer? Our suggestion is that if you take a photo and feel certain it would make for a good commercial use, use a short business card-sized release. (Here's some detailed information by the Dear Rich Staff on when and how to use model releases, and here's more on the right of publicity.)