Use of photo without consent

[Matt Wise]

Jurisdiction

California

Hi!

I was wondering whether a (private) school can use my child's photo for promotional purposes without explicitly asking for consent. I've asked and the principal stated that the school implicitly reserves the right to use photos of students for social media purposes and there is no dedicated media release policy as part of the parent handbook. I was surprised to receive a promotional school newsletter in the mail with my child's picture on the front page. I typically don't provide any consent for photo/media use in any form to schools. I'd appreciate any input. I'm not sure this section is fitting for this topic either.

Thanks!

 

[KatDini]

You signed the contract with the school, and I'm pretty sure this is not the first time this subject has come up at the school.

 

[army judge]

. I'd appreciate any input.

If you are concerned talk to a lawyer.

 

[hrforme]

In every school my children have been in, we as parents have to sign an "opt OUT" rather than an "opt in" for media release. So I do suspect it is somewhere within your paperwork/contract, especially if a private school that would have more of a contract than a public school system.

 

[zddoodah]

I was wondering whether a (private) school can use my child's photo for promotional purposes without explicitly asking for consent.

Depends on the terms of your contract with the school and the facts and circumstances under which the photo was taken.

the principal stated that the school implicitly reserves the right to use photos of students for social media purposes

Implicitly? The school cannot "reserve[] [a] right" that it doesn't have to begin with, and a "right" to use a person's likeness for commercial purposes cannot be "implied." Did the principal point you to anything in writing whereby you conferred on the school the authority to use your child's likeness for promotional purposes?

I was surprised to receive a promotional school newsletter in the mail

I'm curious about your description of this newsletter as "promotional." Since your kid already attends the school, there is no need to "promote" the school to you. What makes you describe the newsletter as "promotional," as opposed to merely being a newsletter?

By way of example, every week, I get a "newsletter" by e-mail from the (public) high school my kids attend, and every once in a while, one of my kids shows up in the newsletter in connection with something that happened the prior week. That's not "promotional."

 

[army judge]

By way of example, every week, I get a "newsletter" by e-mail from the (public) high school my kids attend, and every once in a while, one of my kids shows up in the newsletter in connection with something that happened the prior week. That's not "promotional."

Excellent point.

Those "newsletters" would more than likely be considered "news".

The high school school newspaper would also be a news source.

 

[Matt Wise]

Thank you for taking the time to respond! I've requested a copy of everything we've signed that would fall under a contract without the mentioning of anything concerning the use of media. The principal stated they won't use a students name without consent but reserve the right to use photos. I have not seen or received a written policy for it.

My child is not attending this school anymore as of this school year. I received a printed school newsletter in the mail that is sent to all house holds in the area and not directly targeting parents of students (residential customers). Newsletter might be the wrong description: It's an advertisement for their open house event.

Based on these details would it be warranted to seek legal counsel? I appreciate your time!

Depends on the terms of your contract with the school and the facts and circumstances under which the photo was taken.



Implicitly? The school cannot "reserve[] [a] right" that it doesn't have to begin with, and a "right" to use a person's likeness for commercial purposes cannot be "implied." Did the principal point you to anything in writing whereby you conferred on the school the authority to use your child's likeness for promotional purposes?



I'm curious about your description of this newsletter as "promotional." Since your kid already attends the school, there is no need to "promote" the school to you. What makes you describe the newsletter as "promotional," as opposed to merely being a newsletter?

By way of example, every week, I get a "newsletter" by e-mail from the (public) high school my kids attend, and every once in a while, one of my kids shows up in the newsletter in connection with something that happened the prior week. That's not "promotional."

 

[cbg]

Before I answer your last question, I have two questions for you. What is your objection to the photo (that's a real question, not an oblique way of saying you're wrong to object - I don't know enough yet to form an opinion) and what actual damages have you suffered as a result of your childl's photo being in the newsletter?

 

[zddoodah]

Based on these details would it be warranted to seek legal counsel?

Entirely up to you.

what actual damages have you suffered

Not really a response to your question, but California Civil Code section 3344 provides for statutory damages of $750 per infringing use (i.e., per copy of the advertisement), regardless of the existence or lack of actual damages. It also provides for the possibility of punitive damages, although this wouldn't likely be a case where that would be realistically on the table.

 

[cbg]

Oh, I wasn't obliquely implying that he has no damages. I can think of at least one situation where there could be very real damages. But rather than put words in his mouth, I was looking for him to tell me if that was the case or not. My response to whether he should look for legal counsel would be affected by whether it was or not.

 

[Michael Wechsler]

It may not be wise to use photos of schoolchildren in promotional material without informing the parents, even with legal rights to do so. It's not always a legal concern and sometimes one which touches upon parental feelings of safety and privacy and control over them. This goes double at a private school, where parents pay tuition and have a set of expectations which, when breached, can cause a rippling effect.

Thanks for the follow up on statutory damages, which is informative and provides perspective.