Recently a barrage of media attention has been paid to the issue of using children, teenagers and especially “tweens”, in sexually provocative poses. Some of this attention arises out of a new case which Ed has brought in Federal Court in New York on behalf of a teenager. Her image was used for various commercial purposes (including on apparel) without any one’s consent, permission, authorization or a written, signed model release. This is a good time to repeat our advice to photographers everywhere about the necessity of using model releases always, all of the time and without exception. Extra care must be employed when photographing children and a model release created for minors must be used.
First a brief reminder that when using models professional or otherwise, a signed, written model release must be obtained and retained (forever) by photographers always and all of the time. Such a written, signed release is required to employ a person’s portrait, photo, image or likeness for trade or commercial purposes in the State of New York and countless other states. Obtaining such a release protects you the photographer (or illustrator) and your client(s) from being on the wrong end of lawsuits and legal claims.
Quoting liberally from the brilliant book “Photographer’s Survival Manual”, available at fine book websites everywhere, “The rights of a person in his/her portrait, image, likeness or even voice are commonly termed ‘rights of publicity’ or ‘rights of privacy’. These rights are independent of any of the photographer’s intellectual property rights, such as copyright”. The rights of the model or subject are (mostly) governed by state law. The subject need not be a professional model to assert his/her right to publicity/privacy, a/k/a sue, nor does the law require that the subject be an adult.
A child is incapable by law of granting his/her consent. In plain English, a child’s signature on a model release is worthless. On one occasion Ed cross-examined a photographer who believed that since the model was a “professional model” sent over by a model agency, he/she could sign a release despite being eleven, yes eleven years old. If the subject is a minor you need to obtain a special release to use any of the images you create for trade or commercial purposes. We suggest that you obtain a release all of the time regardless of your present intentions with respect to present or future use of the images. Even if you know that you will only use the image for editorial purposes only, get a signed release if at all possible anyway. Yes, it is like wearing a belt with your suspenders.
We supply form minor releases in our book, through our Kelby Training Courses, by writing to us here at thecopyrightzone.com and at our lectures – next at Photo Shop World in Las Vegas on 9/7/11. These releases require that an adult represent that he/she has the legal authority to sign the release on behalf of the child and require the production a driver’s license or similar identification. Youcannot be too careful when photographing children especially if the child’s parents are divorced or in the process of getting a divorce. Jack has been photographing kids for over 30 years and those images have been used by commercially and conventionally in advertising by Toys ‘R Us among others, without any incident or problem.
But what if an image of a child is used in a, shall we say, questionable manner? Will your written, signed model release serve like Captain America’s shield to keep you safe from all attacks? The simple answer is, “no”. A parent cannot for example legally consent to the use of his/her child in a pornographic film or for an illegal purpose. A decision to employ the child’s photo in such manner so as to portray a minor in a libelous manner, ie: as a drug addict, sexual abuser or victim of sexual abuse, an alcoholic or felon will likely result in a lawsuit notwithstanding the existence of a model release signed by a parent or court appointed guardian. Use of a child in such manner without the existence of any model release is virtually guaranteed to result in a lawsuit. In New York (and other states) an award of substantial punitive damages may be made by the Judge or jury if the acts of the defendants are deemed to be egregious, shocking or willful. Juries are composed of adults and thus tend to be sympathetic to children.
Courts exist in large measure to protect children from themselves and of course, adults. It is part of a Judge’s job to act in a child’s best interest regardless of whether the child is an orphan or is blessed with two saintly parents. Children are incapable by law of consenting to many activities because the law correctly deems them too immature to make informed or mature decisions. On some occasions an adolescent might have limited decision-making capacity and can give his/her informed consent without parental participation. Classically this arises in the emergency room medical treatment of a minor where a life is at stake. A minor is however, without any legal capacity to sign a model release.
If a Judge is convinced that a parent (or anyone else) is attempting to employ the photo of a child for or to display illegal or immoral activities, the Court will simply void any release signed on behalf of the child. Courts may and often do, override the decision of a parent if the child is being used in a salacious, demeaning or pornographic manner. Movie studios wisely go to great lengths to get contracts for the use of children, approved line by line and “in advance” by a Judge before the minor ever looks into a camera.
We have not even touched upon the Federal Statutes addressed to “kiddie porn” transmitted across state lines via the Internet or otherwise. Several Southern states in the United States aggressively prosecute virtually all forms of pornography coming into their states and do so under their own state criminal statutes. There are many Federal and state criminal statutes addressed to the portrayal of children and/or their body parts in a sexual performance or manner. The improper use of a child in a photograph, illustration or film may get the creator a cell in a state or federal facility.
While some may debate the lengths (if any) to which sexualizing tweens is acceptable, there is no debate that the use of the image, portrait or photograph of a person, even a child, without having first obtained a written consent signed by an adult with the legal authority to do so may result in the creators and users of such imagery, receiving the title of “defendant”.