Do you Own the Photos you take? Maybe Not!
Updated: Aug 31, 2020
By: Jim Lynch, Twitter: @originaljlynch
One undeniable trend is that people are increasingly attracted to images and videos and much less interested in unadorned text. Images bring life and interest to anything. They also help demonstrate the human impact of nonprofits' and libraries' work.
But can you get in trouble by posting images of people without their consent? You can indeed.
Rules of Thumb for Using Photos of People
Are photos that you take with your camera or phone yours or your organization's property to use as you wish? Well, you would think so, but there are some rules around this, especially if the photos are of minors under 18.
The area of U.S. law that covers this is called the right of publicity. The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of the individual's persona, including the person's voice. This means that the rules for consent apply not only to photos, but also to videos and audio recordings.
Whether you need permission to post photos you take for your library or charity depends on how they will be used and if the people in the pictures can be identified.
The following rules of thumb are abstracted from Bryan Carson's Laws for Using Photos You Take at Your Library.
When you need to get signed consent:
If you have photos of identifiable people and are using the image for public relations, marketing, or promotional purposes like calling attention to future programming.
If the person pictured is under 18 years of age. In this case, the parent or guardian should sign a consent form.
When you don't need to get signed consent:
For photos that don't include identifiable people. For example, you could take a picture of a gathering from the back of the room or just a part of the body (two hands petting a rescued dog or digging a community garden, for example). Photos of public events or large crowd shots don't require people to sign a consent form.
For pictures that you use for current news stories. Newsletters, blog posts, or recent events sections on websites are considered news. However, the photographs should only be posted for a limited amount of time. The one exception is if they include children or youth under 18. You should always get consent for photos of minors.
How to Get Consent for Photos, Videos, and Audio
There are a variety of approaches for getting consent.
Get Individual Signed Consent for Photos
One approach is to ask each person who will be photographed to sign a consent form.
This is what we do at TechSoup when we take photographs or record video of specific people. You can download our form and adapt it for your own use. Our form is geared toward people over the age of 18.
If you work with youth, your form would likely be different. Jessica Morey at Inward Bound Mindfulness Education, a nonprofit that provides mindfulness retreats for youth, shared the language in her organization's consent form with us:
"I do hereby confirm the consent given you with respect to your photographing or recording me or my child in connection with the IBME, Inc. Teen Retreat. I hereby grant to you the right to use all the motion pictures, photographs, and audio recordings which you may make of me or my child, and the right to use my name and/or child’s name or likeness in or in connection with publicly displaying the retreat or any other use of such video, picture, or audio recording."
IBME gets both the teen's and parent's signature. Jessica also told me that they allow parents to say they don't want their child photographed.
Require People to "Opt Out"
Another approach is to publicly state that anyone in an area may be photographed and to allow people to opt out of having their photograph taken. This is particularly useful for large events or in locations that are open to the public.
For example, the Oakland Public Library (OPL) posts the following notice prominently in the library (special thanks to OPL children's librarian Erica Siskind for sharing this with us):
"Oakland Public Library is permitted to take photographs and video footage of people of all ages at the library and library sponsored events for publicity. If you do not want to be photographed or filmed, please 'opt out' by notifying library staff. Names of patrons will not be used in publicity without consent."
If you take this approach, OPL recommends that you assume that participants are not aware of the policy. You can help make them aware by
Verbally introducing yourself and the policy before or after photographing.
If you are photographing in an area for an extended period of time or photographing outside the library, printing the policy and placing it in an acrylic stand in a visible place near you.
If you are photographing young children, attempting (within reason) to make sure their accompanying caregivers are aware of the policy, especially if you have a close-up photo of an individual child. Be aware that parents may be reasonably sensitive to and protective of their child being photographed.
When photographing groups at large events, asking those who opt out to wear a red sticker (example here).
Don't Forget to Run Your Consent Form by Your Lawyer
You should, of course, run your organization's consent language by a lawyer because right of publicity rules differ from state to state.
Also, there are a wide variety of uses we all have for photos and images. For instance, social media is a great place to post photos and videos, but the rules on it are unique.
In the case of Facebook, for example, when you post a photo, you grant Facebook full use rights to the photo until you delete it, according to Facebook's terms page. Be aware that many people are getting a bit touchy about social media over-sharing.
Read more of our Blogs at http://www.woodsllp.com
Image 1: Open Clips / CC0 Public Domain
Image 2: various brennemans / CC BY-SA
Licensed under Creative Commons. Originally posted at techblog.com