Your organization is hosting a festival, a seminar, a book-signing, a musical concert – or other event that will attract attendees. You want to capture images of people enjoying your event – and then share those images in news reports about the event’s success, on social media, and in promotional pieces advertising next year’s event.
Do You Need a Personal Consent from Each Person Depicted?
The need to obtain consent varies with the circumstances and with each state’s law. For this blog posting, suffice it to say that while there are First Amendment and other circumstances in which consent is not required to use a person’s image, there is rarely any downside to having the person’s consent.
How Do You Obtain Consent from All Attendees?
Since having consent is preferable, how do you logistically obtain a release from the dozens, hundreds – maybe even thousands of people at your event? A posted notice might function as a practical and effective method of obtaining those consents. Pictured at the opening of this blog post is one such notice recently used at a community festival.
Is Consent Via Posted Notice Enforceable?
Personal consents and releases come in various forms - written, verbal, explicit, and implied. Each form can potentially be valid and enforceable. The “consent via placard notice” method takes advantage of the implied approach to personal consent. When a person realizes he is being photographed or filmed for a particular purpose and makes no objection, the person has provided implied consent to his depiction for that purpose.
While implied consent can be enforceable, it is not appropriate for every use and every situation. Here are some general tactics organizations can use for maximizing the effectiveness of consent via placard notice:
Determine whether Attendees Have the Capacity to Consent. For example, minors do not have the capacity to give consent. Any consent from a minor requires the consent of the minor’s parent or guardian. If your event is likely to attract many unaccompanied minors (e.g., an event attracting teenagers), consent via placard might not produce optimal results.
Give People Reasonable Opportunity to Decline. This means people need to see the notice. Hence, place the notice in a conspicuous location to maximize chances people will see it as they enter the venue.
Also, for the consent to be enforceable, people should have a reasonable opportunity to decline participation. If the person has paid $200 for a ticket to a show and declining to enter beyond the posted notice means not seeing the show and forfeiting the $200, the person has an argument that the consent is not valid.
Use Images in an Incidental Manner; Not a Featured Manner. Ideally, you will use the images in a manner that focuses on the event and in which the people depicted function as background – incidentally or casually captured on camera as part of covering the event. Your use cannot be a disguised advertisement for the sale of a product or service. You might seek additional legal review to evaluate the risk of a defamation claim if the image depicts the subject in a manner that might be embarrassing.
A case involving Ohio news anchor Catherine Bosley illustrates when use is featured and commercial rather than incidental and when implicit consent is insufficient. While on vacation in Florida, Bosley participated in a wet-t-shirt contest. Subsequently, images of Bosley at the event and in various stages of dress along with her name were used on the cover of a WildWetT video, in the members-only portion of an adult entertainment website, and in direct promotion for other sexually-related goods. The defendants claimed to have the anchor’s consent for use of the images since written notices informing the wet-t-shirt contestants of the future commercial use of their images had been placed around the dressing room, stage, entrances, and exits of the event. The court ruled that the defendants’ use was a commercial use and, thus, under Florida law, required at a minimum Bosley’s explicit verbal consent in order to be valid. (The case is Bosley v. WildWetT.com, 310 F. Supp.2d 914 (N.D. Oh. 2004)).
