Can You Post Photos on Your
Church
Website
Without the Permission of the Persons in the Photos?
In short,
yes. But it is still a good idea to ask anyway.
 A person's face cannot be copyrighted, only the
photo can. US Copyright Law protects only an "author's work" not your
moosh.
A person's image photographed in a public place is
not considered an invasion of their privacy.
Privacy and Anti-Defamation Laws protect a photo from being used in a
defamatory manner.
Non-commercial use of a person's public image on a
church website falls under the legal concept of "appropriation"
which guards
someone from using your image to sell a product without your
permission.
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Reality Check:
1. The Internet has tens of millions of photos of
children on it. Type the word "kids" in Google's image search engine and
you get 1,460,000 image files with the word "kids" in them, and that's
not counting all the photo files of kids which do not have the word
'kids" in the filename! So... the odds of some creep finding your
pancake breakfast photos of kids and doing something bad with it, is in
the same statistical ballpark as one of your kids getting hit by a
train, at night, in Timbuktu, riding a donkey.
2. The truth is that "stranger danger" isn't the real
problem for the church. It's the people you DO know who
are FAR MORE statistically likely to cause harm. And they can walk
around your church taking photos with a smile. Rather than strain at web
photo gnats, consider the real "log-in" problem: have your volunteers
fingerprinted and background checked by the local police. Many churches
do it, mine does, and it's a good idea.
Having said all this, I recommend alerting the congregation
that some photos of events will be posted on the church website, in
newsletters and on bulletin boards. Of course, they should already
know this, but there are always a few who don't. Furthermore, addresses of
children, and even adults, should not be included with photos. I'm not
one to give in to the irrational fears of those who believe the
boogey-man is waiting to swoop down on your church website's images. But
some common sense and common courtesy is warranted.
DETAILS
The US
Copyright Law isn't very long, and it makes no mention whatsoever of
a person's face. Copyright as defined in Federal Law can only be
applied to an "author's work" ....written, audio, visual, etc. You
can read the entire law at
http://www.copyright.gov/title17/92chap1.html#102
Privacy
laws vary by state. In general, the issue is not the existence of a
person's face in a photo, but the intended use of the photo and
image.
 Example: The local TV News can
come to your child's school and videotape all the children they
want, and show what they want. But the only thing copyrightable is
the edited videotape itself. And they don't have to obtain
permission of all the kids' parents. Why? Because it's "news"
--which is "fair use" as defined by the US Law.
If I am in a public place, I cannot
claim my privacy was violated by someone taking my picture. But if
they use it to sell men's cologne, our children's curriculum, then I
have cause for legal action under a legal principle called
"Appropriation." Having said all this, even some commercial use of
my image in a photo is permitted as long as my image is not the
focus of the photo.
This article is in addition to one I've
written about creating better church websites. Church websites will
typically have pictures of members and their children doing what
churches do: worshipping, talking, playing, studying, going on
retreats, etc. Taking pictures of children at church in a public
setting for non-commercial purposes is neither a violation of
copyright, nor an invasion of their privacy. However, they could be
considered defamatory if used in an inappropriate manner.
My recommendation is to CLEARLY announce
through both printed materials and the website that pictures of
members and their children may be posted around the church, and on
the website. If anyone has a problem with that, they should contact
the church and ask that their image(s) not be included.
<>< Neil MacQueen
Supporting Addendum from a legal firm specializing in this subject:
The
courts generally agree that anything visible in a public place can
be recorded and given circulation by means of a photograph since
this amounts to nothing more than giving publicity to what is
already public and what anyone present would be free to see. The Anytown example is based on a New York case in which CBS broadcast a
clip showing a male and a female construction worker walking hand in
hand down Madison Avenue. It turned out that they were married, but
not to each other. The court in that case ruled that there was no
invasion of privacy. [De Gregorio v. CBS. Inc. (N.Y. Sup.
1984), 123 Misc. 2d491, 473N.Y.S.2d922].
...when
a person is incidentally shown in a photograph, depicting some
public event, an appropriation claim should be unsuccessful. In a
recent case, a dog-racing park put out a promotional brochure which
contained photographs of patrons at the park, and two of those
depicted sued the park for invasion of privacy. Even though the
brochure was distributed to promote the park commercially, the court
denied the claim because there was no commercial advantage to the
incidental use of the
patrons' photographs. [Schifano v. Greene County Greyhound
Park. Inc. (Ala. 1993), 624 So.2d 178].
Some cases have resulted in liability,
but those cases generally have involved clearly objectionable
photographs. For there to be liability for disclosure of private
matters, the disclosure must be unreasonable; that is, offensive or
objectionable to a reasonable person. For example, an Alabama
reporter photographed a woman at a county
fair.
There was no
dispute that the woman was in a public place, however, the
photograph was snapped in an embarrassing moment when a gush of air
blew the woman's dress up. In an apparent lack of good judgement,
the newspaper ran the photo on its front page, and the Alabama
Supreme Court ruled the paper was liable in damages to the woman.
[Daily Times Democrat v. Graham (A/a. 1964), 276 Ala.
380,162 So.2d474J. The cases suggest that as long as the
photograph is not offensive or objectionable to the reasonable
observer, a claim based on disclosure of a private matter will not
succeed.
Authors: Barry 0. Hines and R. Kurt Wilke, Springfield Illinois
lawfirm of Segatto, Hoffee & Hines, where their practice includes
representation of media and other clients on defamation and First
Amendment issues. Mr. Hines is past Chairman of the Illinois State
Bar Association's Fair
Trail/Free Press and Media Law Committee.
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Copyright 2004, Neil MacQueen,
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