photos in a public place by a non-profit

[saxophone]

What is the name of your state? California

I play in a community band. I'm also the band's webmaster. Our band is a non-profit organization. The musicians are all volunteers, and we depend on donations to pay for our expenses.

We have some photographs taken during one of our concerts. Because the photo was taken from the back of the room, you can see the backs of heads of people in the audience including minors. I would like to post the photo on our band's web page. The caption would only include the date and location of the concert, but no names. The photos would not be up for sale. However, I have met with some resistance from someone who claims to be knowledgeable about privacy issues.

1. This person claims that I cannot post this photo without written consent from everyone in the photograph.

2. The person claims that I cannot post the photograph on a web site that is password protected and accessible by myself and someone else who would determine if the photo can be made publicly available.

3. The person claims that no photograph can contain the image of a minor, and violation amounts to a felony.

Is this person correct on any or all of these points? Bear in mind that these photos are taken at a public performance.

Thank you.

--Greg

 

[xylene]

Shut this advisor up thusly...

Answer.

Open photoshop or photoshop clone type freeware.

Open image using photoshop or photoshop clone type freeware.

Activate smear tool.

Smear faces ever so slightly that the picture is not compromised but ID characteristics are not there.

Post picture.

 

[quincy]

No, that person is not correct on any of those points (I don't mean Xylene - I mean your "privacy expert").

You do not need permission to take photos in most public places (there are some areas that may restrict the use of cameras, such as amusement parks or concert venues) - and those pictured in the photos should have no expectation of privacy when in a public place.

One exception to the right to photograph people in a public place is that a photographer should not photograph something a person has a reasonable expectation of keeping private, even when this occurs in a public place - say a photograph of a woman whose skirt has blown up by the wind or a photograph of a person withdrawing money from an ATM machine.

Problems tend not to occur so much with the photo taking as with the photo publishing. In publishing a photo where people are recognizable and where the photo is to be used in a commercial manner, it is wise to get a release. When children are identifiable in a commercial-use photo, a release from the parents is necessary. Again, this would not be necessary for a photo taken of a crowd of people in a public place, even when children are present in the crowd.

People in public places give, essentially, what is known as "implied consent" to be photographed, as they have no expectation of privacy when they are in public. If someone were to come up to a photographer and object to his photo being taken, it is the smart photographer who backs off, but there is generally no legal necessity to do so.

Of course, the best way to avoid any lawsuit of any kind is to obtain releases from everyone photographed - but this is often impractical and basically unnecessary. Think of how difficult it would be, for instance, to obtain releases from everyone photographed in a football stadium.

As long as your photo is not used in a sensitive or controversial way (say to illustrate a story on a religious cult), you should have no problems with your intended use of the photos (except, perhaps, from this person who claims to be knowledgeable about privacy issues ).

 

[saxophone]

Quincy:

Thank you very much for you reply. Can I ask you a question? I don't mean to be rude of offensive, but can you tell me your legal background if any? The reason I ask is that I would like to go back to the our band and say we're okay and that this person is wrong. But doing so on the basis of a poster on a free forum wouldn't carry any credibility.

Edit: I just looked at your public profile. You are qualified. Again, thanks for your reply. I've got something to take back to the band now.

Also, can you site any specific laws that support what you've just said?

I understand that here in California, we have what's known as the California Privacy Protection Act of 1998 and the California Online Privacy Protection Act of 2003. Any ideas on where I can find the exact text of these laws?

Thanks.

 

[quincy]

You are wise to question the advice given on a forum.

Other than the U.S. Constitution's First Amendment, and California's Constitution Article 1 Declaration of Rights, section 2(a), you can check out the following sites, which give a not only a general overview of constitutional rights and privacy rights, but also caselaw on the subject (for the caselaw, you can "google" the case name and you should be able to access, if not the entire case, at least a synopsis of the decision):

www.rcfp.org/photguide/intro.html - a photographer's guide to privacy laws put out by the Reporters Committee for Freedom of the Press
http://about.reuters.com/corpid/faqs/rights/index.aspx
www.aclu.org/privacy
www.privacyrights.org
www.photosecrets.com/law.privacy.html

The California Office of Information Security and Privacy Protection, at www.oispp.ca.gov, will give you access to the texts of both the California Privacy Protection Act and the California Online Privacy Protection Act. (The U.S. Privacy Act of 1974 applies only to government agencies.)

 

[jackmcmanus21]

Answer.

Open photoshop or photoshop clone type freeware.

Open image using photoshop or photoshop clone type freeware.

Activate smear tool.

Smear faces ever so slightly that the picture is not compromised but ID characteristics are not there.

Post picture.

Not too bad of an idea....although it seems that Quincy, a qualified expert, has said that it is ok. If you do for some reason decide to go the Photoshop route, you can put a filter on everything you want blurred. It's really easy

 

[quincy]

Just a clarification, Jack. I have said it is "okay" to publish the photo in the sense that it is legal to publish such a photo for such a use as saxophone intends.

I am NOT, however, saying someone still can't sue over the publication of the photo. Whenever you publish a photo of people you run a risk, even when your use of the photo is a legal one, because people can sue, even when they don't have a chance of winning such a suit. There is no way to prevent that.

Certainly obtaining releases or blurring identities is the safest route to take. But a photo of the backs of heads taken of a crowd of people in a public place is also a pretty safe photo to publish. No one's privacy rights are being invaded.