Do you need consent?

[martha36]

I am trying to work on posting pics to flickr for promotional purposes, and as far as kids go, I have a plenty of photos of my own children I can post, but I'd like to put up more variety. I put together preschool yearbooks for my daughter's class last year and I'm doing it again this year, so I do have pictures of her classmates, but can I put those on my flickr account with getting consent? And even if I don't NEED consent, is it better to have it?

Any pointers would be greatly appreciated!

[SusanH1970]

I will not post photos of anyone on Flickr unless I have a signed model release - you're much better off having written permission.

I know if I were going through Flickr and saw that someone else had posted a photo of my child without my permission, I'd give them holy hell.

[martha36]

Thanks - that's what I figured, but I wasn't sure.

[Mr Guy]

It's important to notice two things about her response. The first being that she's right in that's preferred to have releases whenever possible. The second being she's not making that argument based on legality but on her visceral reaction as a parent. There are few forces that can be as much hassle as a parent exercising what they believe to be their rights to protect their children, whether they are correct or not.

Fair use vs commercial speech is not nearly so set in case law as you might expect, especially where the digital age is concerned. If you, personally, don't want to be the example that future people look to in order to determine if THEIR use is legal, I'd suggest getting the release up front to be sure!

[SusanH1970]

Originally Posted by Mr Guy

It's important to notice two things about her response. The first being that she's right in that's preferred to have releases whenever possible. The second being she's not making that argument based on legality but on her visceral reaction as a parent. There are few forces that can be as much hassle as a parent exercising what they believe to be their rights to protect their children, whether they are correct or not.

Fair use vs commercial speech is not nearly so set in case law as you might expect, especially where the digital age is concerned. If you, personally, don't want to be the example that future people look to in order to determine if THEIR use is legal, I'd suggest getting the release up front to be sure!

Um....no. I didn't make that argument "based on my visceral reaction as a parent". Please don't make assumptions. I made it because I was informed by a lawyer that I needed to have a model release if I was going use photos of other people. Yes, I should have said that up front (my mistake). But, still - I would be angry if someone used photos of my kids without a model release. So, why take the chance, as most parents I know feel the same?

It's always better to cover your butt and use a model release; why take the chance of angering someone, particularly a client?

[vandergus]

Um....no. I didn't make that argument "based on my visceral reaction as a parent". Please don't make assumptions. I made it because I was informed by a lawyer that I needed to have a model release if I was going use photos of other people.

Depends on the use. If the photo's were taken in a place where the subject had no expectation of privacy (not sure if a preschool classroom falls into that category), then the only time you need a release is if it is being used for commercial purposes. But as Mr. Guy implied, "commercial purposes" is pretty open for interpretation in the courts. And those are just the legal concerns. If you also want good relationships with potential future clients then it's probably better to err on the side of getting a release.

But you are perfectly within you legal limits to go to a park, take a picture of somebody (no matter their age) and post it on Flickr.

[SusanH1970]

Originally Posted by vandergus

But you are perfectly within you legal limits to go to a park, take a picture of somebody (no matter their age) and post it on Flickr.

Very good point.

It's my policy that each of my clients must sign a model release before I'll post photos of them or their children on Flickr or my website (as I mentioned before, I was advised to do this by a lawyer), but I've posted photos of public places that happen to have people in the photos on Flickr before, without a model release.

As for the preschool, check with a lawyer or at the very least the head of the school if you want to make sure. But when all is said and done, a model release certainly can't hurt you.

When I enrolled my daughter in the preschool that she attends, one of the many forms I had to fill out was a model release. They wanted permission to post photos of her on their website. I did sign it, and was grateful that they asked!

[fletch]

One thing to point out is that whilst you may or may not fall foul of the legailities of posting peoples pics on the internet, you will certainly fall foul of flickr's Terms or Service which state you aren't allowed to use flickr for comercial purposes.

Whilst they generally turn a blind eye to pros using Flickr to generate an online presence if it is overtly comercial then you risk your account being deleted. A single link to a comercial website is generally tolerated in you profile but links on individual pics to a site where you can purchase those pics is not allowed.

Since your flickr site is effectively promotion for your business it could be deemed advertising and therefore you need a release regardless of whether they were children or adults, even if they were taken in a public place with no expectation of privacy. You are using their likeness to promote your business and that needs a release.

[daft_biker]

Originally Posted by SusanH1970

I know if I were going through Flickr and saw that someone else had posted a photo of my child without my permission, I'd give them holy hell.

What if they don't care? Folk are easy to block and unless it's an indecent image I wouldn't expect the mods to step in. You'd just be getting worked up for nothing

[Mr Guy]

Originally Posted by SusanH1970

Um....no. I didn't make that argument "based on my visceral reaction as a parent". Please don't make assumptions. I made it because I was informed by a lawyer that I needed to have a model release if I was going use photos of other people. Yes, I should have said that up front (my mistake). But, still - I would be angry if someone used photos of my kids without a model release. So, why take the chance, as most parents I know feel the same?

It's always better to cover your butt and use a model release; why take the chance of angering someone, particularly a client?

I'm sorry if I offended, but I'd still pretty much put raising holy hell as a visceral parental reaction! I, personally, have a pretty strong reaction to the completely illogical destruction of social support networks due to the stranger-danger internet bogeyman phenomena, so I rarely miss a chance to point out how illogical parents are being. I'll spare you the rant on how your child, personally, is in more danger now from a variety of causes because of society's perception of imaginary dangers.