Let’s say you are taking photos of a high school sports game. You plan to give some of the photos to the school for its own use, maybe sell some to a local newspaper, and to post them on your own website or social media. Is trouble on the horizon?
It could be. Are you a professional photographer, and were you hired by someone to take these photographs? Who hired you, and do you have a contract? Are you a parent taking high-quality pics of your kid on the field? Are you a student at that high school, taking photos for the yearbook? Are you using your own camera or the school’s equipment?
Let’s get some basic questions out of the way. Under the 1st Amendment, anyone—minors included—can be photographed in public for non-commercial or “editorial” purposes, like news or commentary. If you’re trying to sell a picture of a stranger for profit, however, you probably need that stranger to consent (in writing) to the use of their image.
There are sometimes snags in this rule, however, especially when it comes to minors. Some states may have laws restricting the photography of children in public. For example, Georgia passed a law forbidding anyone other than a parent to take pictures of a child (but later tweaked the wording to make it applicable only to registered sex offenders), and New Jersey has considered a similar bill.
What’s more, school districts themselves may have specific rules about photography on campus or at school functions. Some schools may require parental consent before any photographs can be taken of students, while others might make exceptions for extracurricular activities like sporting events or theater productions, and some may even include blanket photography release clauses to be signed by all parents with their back-to-school paperwork. Some schools may have more general requirements before you can even step foot in the door—fingerprinting, visitor badges and even background checks are not unheard of.
The good news is that if you are a professional photographer hired by the school, the school has probably told you everything you need to know, and you probably have a contract that outlines what you can and can’t do. You can use your general contract, if you have one, but you might want to modify it a little to take into account a few considerations: Has the school had parents sign minor model release forms, and if so, do they apply to you? What if you want to post the work on your own website or social media? And of course, who owns the pics? Do you own them, as the photographer, or does the contract designate them as a work-for-hire? These are all things that should be looked into and discussed with your own attorney ahead of time.
If you are a professional photographer hired by a parent, however, you may have more trouble. It will be up to you to discover and comply with the school district’s policies, and it will be much more difficult for you to obtain model releases from the parents of other kids on the field. What’s more, there’s always the possibility that the school itself has hired someone else as an exclusive photographer of the event. If that happens, you may be out of luck; depending on the event’s location and the school’s policies, the school may have the ability to prevent outside photography altogether.
If you are a parent yourself, you might be in a slightly better position. You don’t need a model release agreement to take a picture of your own child, but you still need to worry about other minors on the scene and obtaining consent from their guardians. The school has probably given you an outline of what sorts of photography is acceptable on school grounds or at school functions, but you might also want to investigate the school district’s policies to be safe. The good news is that if the school has hired an exclusive photographer, this probably won’t affect you, because you’re not trying to sell the pictures or use them to advertise your photography business.
If you are a student photographer, your school may forbid you from taking pictures at all—it isn’t uncommon for schools to confiscate phones or ask students not to take pictures. If you are using the school’s equipment or taking photographs on behalf of the school (for example, if you are a student taking photographs with a school camera for the yearbook), the school may even claim that it has rights in the copyright to your pictures, in which case you may not be able to post them on your own social media accounts. Whether you or the school owns the copyright will depend heavily on the school’s policies surrounding its student A/V activities, but in general, you own the copyright to pictures you take, even if they were taken with someone else’s camera. Beware, however: If your photography has some element of protest or political speech, then school officials have a fair amount of latitude to remove you and your pictures if they are disruptive to general school activities.
Every circumstance is different, though, so never be afraid to seek out an attorney to help you unravel these issues and make sure you’re on the right legal path, whether you’re a professional, a parent or a student yourself.
Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark Law LLC, at arcestarklaw.com.
This article is for informational purposes only. It is not intended and should not be construed as legal advice. Contact a lawyer about legal issues.