Can they do this? Legal question

[PoohJen]

yeah, yeah, I'm a lawyer, but this isn't my area of expertise...

Yesterday at DS10's soccer game, a boy handed out flyers that were advertising action shots from that day's games. You go to their website, see if there are any pictures of your child, and then you can buy that picture.

I looked around and sure enough, down near the end of the field was a photographer with a very nice, pro-looking lens. I asked him (didn't mean to be confrontational) about whether he could legally do this.

He responded "it's public property, I can take these pictures".

I didn't dispute this, I disputed whether he could publish pictures of my child - and SELL them - over the internet.

He responded "I don't publish them". Yes you do, you post them on the internet. It says so in your advertisement.

"A 3d party vendor hosts the website." Uh. duh. You contract with that vendor to put them on the internet for you; doesn't make a difference!

We ended the conversation amicably, but I know that neither of us know what the real scoop is here.

So, the question is:

Can someone take unsolicited pictures of minors - i.e., SPECIFICALLY taking pictures of individual kids - post them openly on the internet and then sell them to anyone who wants one?

This field is used by the city recreation dept. (there's a sharing arrangement, I can't say for sure that it is public property). This was a simple, 10 year old recreation league. I'm reminded of that pedophile in the news recently, taking pictures of little girls in parks. Had he sold them on the internet (these would just be park pics, not lewd), would that be ok?

 

[milkabum]

I'm only 13, so I don't know, but if at school they hand out image release forms, I don't see how this situation is any different.

If the newspaper photographers come to our school, the first thing they do is give out forms to those that will be photographed and possibly put in the newspaper. These people didn't even orally ask for anyone's permission, so I doubt that this is legal.

 

[PoohJen]

Very good, Emily - you can be an attorney too!

My point exactly, no release was given.


I just check the website, and there were pictures from my other son's recreational football league there! I must say, I felt uncomfortable seeing pictures of local 6 year old girls in cheerleader uniforms up there for sale! I wonder if their moms and dads know about this?

I want to add that the photographer was super nice, and I know he doesn't mean to be doing anything wrong. I don't want to imply that. Just wondering the bottom line on privacy law these days...

 

[Nikel]

Journalism excluded, nope, it's not allowed. To use images for commercial purposes (whether it's just having them on his website ot business cards or selling them, it's all considered commercial use), there needs to be a release. I believe in some instances a verbal release is okay, but I always use a signed paper release, to cover my rear. And in the case of minors, a guardian has to be the one giving the release. That's my understanding of the law anyway.

 

[jann1033]

legality aside it would seem like common sense for the guy should get releases just to cover himself so he can't be accused of selling pictures to someone unsavory. to bad the world is so sick but ....

 

[Anewman]

Parent gives league permission.
League gives photographer permission.

 

[RBennett]

I'm not really sure of the exacts, but I know I belong to a fight league, kind of like UFC, and at all of our fights we have at least one photographer there and sure enough you can go and buy 4x6s for like $4.99 off of their website. I know I have never seen a release, but maybe I just missed it somehow. Now whether or not it's legal, I guess that might be where you use your connections and maybe contact a commercial lawyer and just ask their opinion.

 

[Master Mason]

If the league grants permision, then they can do so. If you have a problem with it, you need to contact the league to find out if permission was given. If not you would have cause for them to be removed.

Also, there should at least be a password that is required to view said photos, (this part is an opinion only)

 

[PoohJen]

Parent gives league permission.
League gives photographer permission.

Nope, I don't think they did. This wasn't sanctioned by anyone. As he said, "it's public property."

 

[Anewman]

Nope, I don't think they did. This wasn't sanctioned by anyone. As he said, "it's public property."

I was answering your question "Can someone take unsolicited pictures of minors - i.e., SPECIFICALLY taking pictures of individual kids - post them openly on the internet and then sell them to anyone who wants one?" But if your assumption in this specific example is correct...


Well then my issue would be with the league, it is their job to supervise the kids/fields.

IMO this is not any different than someone going onto a school campus and shooting photos of kids, schools are public property too. Wouldn't you contact the principal if that was occurring?

Bottom line if the LEAGUE contracted a 3rd party vendor onto their fields, it is as if they were taking the photos themselves. If just anyone walks on and starts up business, there is a problem.

 

[ducklite]

Journalism excluded, nope, it's not allowed. To use images for commercial purposes (whether it's just having them on his website ot business cards or selling them, it's all considered commercial use), there needs to be a release. I believe in some instances a verbal release is okay, but I always use a signed paper release, to cover my rear. And in the case of minors, a guardian has to be the one giving the release. That's my understanding of the law anyway.

That's the way I understand it as well. As you said, journalism is the exception. If the photographer was from the local paper and taking photos to accompany a story about public recreation facilities in town, it's fair use and no release would be neccesary.

I took a photo of a random guy crowd surfing at a show a couple years ago, and used it on the cover of the local publication I write and photograph for. Because it was being used for journalistic purposes to illustrate a story, it was fair use. There was no release, I have no idea who he was--anyone of 25,000 people that were there that day.

 

[ukcatfan]

How does he even know if he is selling to the parents? There could even be situations where a parent does not even have the right to buy them. Not all parents have custody of their children. Also, if there is more than one kid in a photo then he would need a model release to sell that shot to anyone. I believe that he has every right to take the shots and post them, but not the right to sell them.

Kevin

 

[MarkBarbieri]

These legal discussions always intrigue me. People are very quick to say how they think things work, but they rarely cite any laws or court cases. I would guess that the rules vary from country to country and within the US, possibly by state or even city, but then, I really don't have a clue.

We had a high school sports shooter at our local photography club recently. I don't recall him saying anything about releases. That doesn't mean that he had a clue either.

If he bothers you, give him your business card (he'll probably assume that all lawyers know all law) and tell him that continuing to photograph your child's team will result in legal action. You'll might ruin his livelihood, but he'll probably quit taking pictures of your child's team.

It is sad that the innocent taking and posting of pictures evokes fears of abuse and exploitation. It's even sadder that those fears might be well founded.

 

[Anewman]

It is sad that the innocent taking and posting of pictures evokes fears of abuse and exploitation. It's even sadder that those fears might be well founded.

It is also sad that some parents might want to purchase good action shots of their kids, but the "fear of accusations" make good photographers shy away from that type of business.

 

[bostran1]

While in law school I took a class on privacy rights and this issue falls squarely into the individual right privacy (although one's likeness or picture is increasingly being viewed as a property right rather than a tort, but that's a different story). Specifically, this is called appropriation. It occurs when someone uses another's likeness (name or picture) for commerical gain. This is most often encountered with celebrities when a company uses a picture of the celebrity to sell a product without the celebrity's permission.

For those who are interested in reading up on the subject, the Restatement of Torts, 2nd has some more information, shown below:

§ 652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

Now, there is an exception to appropriation, the newsworthiness exception. Basically, if something is newsworthy, the person's likeness may be appropriated without any legal ramifications.

Unfortunately, I do not have the time to write a treatise or fully research the matter but a quick look at some case law brings up this case. It provides information and citations to many cases that could help explain the matter. Unfortunately, researching case law without access to Lexis or Westlaw is a pain in the behind.

Long story short, if they use your picture to make money without your permission, you may have a legal case.

Please note, none of the above should be taken as legal advice regarding any claims or potential claims in any form. As always, you should consult with a lawyer yourself.

 

[Anewman]

Long story short, if they use your picture to make money without your permission, you may have a legal case.

Now lets define "permission"

 

[bostran1]

Haha, ideally it would be a written release but verbal would work too! What a mess

 

[PoohJen]

Nice disclaimer Ben! I shan't report you to your bar's ethics committee today!

Because commercial use and minors are involved, I expect a release is necessary. I'm sure lots of photographers have sites like these, and it isn't often questioned. Not meaning to put people out of business, just curious.

and no, I'm not looking to sue the guy. I just wanted to know what the law is, and what folks here experience has been. To the extent that I am bothered by it as a parent, I'm sure if I see my kids' pics online I can ask him to take them down and he'll oblige.

 

[ducklite]

It's also possible that the release that is signed by parents when signing their children up for sports covers photography.

 

[ukcatfan]

Because commercial use and minors are involved, I expect a release is necessary.

I have never seen anything that protects children from being photographed. The guardian must sign a release instead of them, but that is about all I have ever heard. It might raise concern and cause the photographer to be asked to leave. If they do not, then they would be in violation of trespassing. Anyone can be photographed unless they are in a place where they would be expected to have privacy (i.e. inside their home, in a public restroom, etc). Individual places can prohibit photography though if it does not have public access like a ticketed sporting event.

Kevin