Can You Post Photos on Your Church Website
Without the Permission of the Persons in the Photos?
 

In short, yes. legally speaking you can post photos of people on the web without their permission, provided the photo was taken in a public spot and doesn't defame them.

...But it is still a good idea to ask anyway.

A person's face cannot be copyrighted, only the photo of their face can be copyrighted, but only if the photo has some sort of unique artistic quality. Generic non-artistic photos are not copyrightable.

US Copyright Law protects only an "author's creative work" not your moosh or mundane photo.

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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BUT WHAT ABOUT CHILDREN'S PHOTOS?

While I don't technically have to ask permission to post a photo taken in a public space, I ALWAYS ask the permission of parents to post the photos I take of church, before posting them!   I also 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. 

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.

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."  (Though it's not easy to prove if I'm in a public place and watching a public event, and the photo is of a public event, for example.)

Some commercial use of my image in a photo is permitted as long as my image is not the focus of the photo. For example, if I accidentally walk into the background of a photo shoot, I can't ask for compensation.

Many states now have laws against taking and posting EMBARRASSING photos, or invading another's PRIVACY. But just snapping them standing in your church is NOT an invasion of their privacy.

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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