Legally, should Libraries NOT be Using Flickr?

 

Inside by the Fire courtesy of Lester Public Library

That’s Gil. He’s enjoying the newspaper and the fire at Lester Public Library. The cliché says a picture is worth a thousand words but I must agree that the story this picture tells about what patrons will find at LPL is pretty darn priceless.

With this in mind, have you seen “Laws for Using Photos You Take at Your Library” by Bryan Carson?

http://www.infotoday.com/mls/sep08/Carson.shtml

Carson covers the best ways to use photographs taken at library events and in the library for promotion:

It is clearly a violation of the right of publicity to use photographs from library programs in order to market or advertise the library or to call attention to future programming. You should always get written consent if you plan to use images for these purposes. If the subject is under 18, the parent or guardian should sign a consent form.

One way to get around this problem is to take photos that don’t include identifiable people. For example, you could take a picture of the crowd from the back of the room. That way, you won’t have to worry about being able to see faces.

The law is a bit more lenient toward pictures that are published in a newspaper or library newsletter. Because the First Amendment guarantees freedom of the press, news media may publish names, likenesses, and images as long as they are part of a “newsworthy context.”9 (Even news media are forbidden from using photos or other images for commercial purposes.)

This adds much to the conversation that the Librarian in Black also covered a while ago. This is the bit that I got hung up on: (emphasis mine)

A library’s newsletter qualifies as news media. Online blogs and “recent events” websites are also considered to be “news.” However, the photographs should only be posted for a limited amount of time. (One source suggests no longer than 2 weeks.10) Flickr, Facebook, MySpace, and other social networking sites create new issues. The problem is the limited amount of time that “news” images can be posted online without requesting permission from the subject. The right of publicity applies equally to blogs, websites, and social networking sites. So I do not recommend using Flickr or other such sites to archive photographs. It is important to be sure that you are really doing a “news” story on the event that just occurred rather than promoting future programs.

If I understand this correctly – and I must confess that reading too much legalese makes my brain shut down – this is the gist:

If you are using Flickr in your library to create an extension of the library’s Web presence and share the vibrancy, excitement and story of the library via photos of programs, activities, events, spaces and faces, you need to have permission for all subjects that are identifiable to avoid the possibility of a lawsuit. And they must not be archived as “news.” And it might be best not to use Flickr (is it implied that the other sites are off limits too?).

This perturbs me: in this age of user-generated everything live on the Web and libraries spending staff time and resources to create online presence in this emerging landscape, why are we creating roadblocks centered around laws created/discussed in the late 1800s and early 1900s?  And pictures of the back of heads would get old very quickly on the library web site. I want to see the people who make up the library, not someone’s french twist.

Carson goes on to outline how libraries can design photo releases and archive them. The details are well-presented and well-researched – and cited.

I certainly believe we should acknowledge and respect people’s privacy, but I also think using Flickr (and Facebook, MySpace, blogs, etc) are part of a new landscape of participation and inclusion. The law needs to catch up with these tools. I would hate to see any libraries stop using Flickr because of fears of a lawsuit – which in libraryland gets bantered around to much as a reason to NOT do a whole lot of things.

I love what Hennepin County did with their Harry potter promotion. The online form is the photo release. I wish it could be this easy in public to collect photo releases. I just hate the thought of asking every single person at some of the events and in the wonderful libraries I’ve highlighted here on TTW to sign off or for the teens to get mom and dad’s permission.

More here: http://tametheweb.com/category/flickr-rocks-my-world/

Carson’s conclusion:

If you plan to utilize images with identifiable people for public relations, marketing, or promotional purposes, always use a written consent form. (Oral consent is worth the paper it is written on.) If the subject is under the age of 18, be sure to get a signature from a parent or guardian. You don’t need permission to run a story about a recent event in your newsletter or on your blog. However, the story really has to be about the program, not just a promotion for the next event. And check with your institutional attorney or records manager to find out how long you need to retain the signed forms.

Librarians who follow these principles and receive advice from records managers and attorneys should be safe from lawsuits. That’s the goal of your attorney and of this article.

I think the goals of extending  the library and promoting the community trumps that one, but I am not an attorney, nor do I play one TV. I think the context goes way beyond what is immediate “news” to the library and to its community – public, academic, etc. Henry Jenkins notes we are all now creators and participants in media, not just passive viewers/readers. How does the publicity law apply to this permutation?

I’ve promoted libraries and Flickr for years. Jenny Levine  and I included it in the Conversation, Community etc. Roadshows back in 2006. I look to some innovative libraries using Flickr well as evidence that it is working. For example, take a look at Lester Public Library’s Flickr page and then check out their “Patron Privacy Policy” (updated July 2008):

“Photos and videos that appear on the library’s website may be gathered from public programs, events, and library spaces. Photos, images and videos submitted by users for online galleries or contests may also be used by the Library for promotional purposes. To ensure the privacy of individuals and children, images will not be identified using full names or personal identifying information without written approval from the photographed subject, parent or legal guardian.”

Works well for me! Thanks to Jeff Dawson, LPL director who shared the statement with me as I was writing this. It covers the bases as far as I can tell without being over the top.

I’d also like to know about other libraries that have made this work – and that might have forward thinking attorneys who are exploring what it means to create a chronicle of participation in the library, not just report the “news.” I advocate for social tools in libraries and I want to make sure my thinking is where it should be.

There has to be some new middle ground – blanket photo permissions for public events at the library, posted notices that photos will be taken, etc. I am not well-versed in the law – and that’s why I do appreciate the issue this article addresses, but I need to understand this more and would love to hear from folks out there.

This doesn’t seem that different from what libraries have always done: collections of community photos, a history collection, etc. Why does the online social component make it weird? 

My gut tells me there is a legal, useful place for this type of engagement online and US law needs to catch up sooner than later. Hiding behind a fear of a lawsuit might do more harm than good to many libraries that want to extend presence.

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18 thoughts on “Legally, should Libraries NOT be Using Flickr?”

  1. “The online social component makes it weird” because it is now out-there for all to see. There is no privacy when you post something to Flickr. I do not think that US law needs to catch up. The law is in place to protect people. Just because you like to take pictures and post them on Flickr does not mean that everyone does this. Just because you like having your photo online for all to see does not mean that everyone else wants their photos online.

  2. This doesn’t seem that different from what libraries have always done: collections of community photos, a history collection, etc. Why does the online social component make it weird?

    I think it’s because “the online social component” makes it so easy to copy and paste these photos in dozens of other places. The people photographed might not mind helping to promote their local public library, but might object to the photograph being posted again in various blogs, and ultimately grabbed and used for a commercial purpose without their permission.

    It is a tough issue. Thanks for a great post with all the links.

  3. Thanks Amanda! You make a super good point about remixing. That could have unfortunate circumstance.

    Anonymous, I was addressing more the library’s use of online photosharing, not the individual. I think libraries can easily say “If you don’t want to be in the photo, please move aside or put your head down.”

  4. While I will admit that I am not a lawyer, I do play one on the internet.

    I disagree with Carson’s analysis. The rights for a person to control their likeness re: publicity is a right that was codified in order to prevent commercial interests from co-opting a personal image. The need for a library (almost always a non-profit entity) to ask permission to use images that are taken in a public space is not nearly as strong, I think, as he puts it.

    Photographers have the right to take pictures of people in public spaces, and use them professionally. If I am standing on a public sidewalk taking pictures of people, I can do so legally, and put those pictures where ever I desire, online or off. The legal issue arises when I use those images in some form of publicity…this is similar to the EU moral copyright issues.

  5. Where can I locate Bryan Carson’s flickr photostream? – just curious.

    It is very simple to turn a photo op and release signing into an opportunity to sell your library. West Deptford Free Public Library obtains photo release information from each individual (and/or caregiver) who is photographed for public use. Staff members have taken some great photos that did not make it to the web. I recall a touching father and son shot we had to shelve due to mixed feelings expressed by the dad after signing the release form.

    I do not agree with the two week posting time frame as there have been folks photographed at WDFPL who expressed disappointment after a photo was retired. One little girl returned to the library with mom to take a second shot “now that she was more grown up.”

  6. We get photo releases for every photo we use anywhere – website, flickr, MySpace, print, etc.. We were instructed to do this by our county attorney (the county is our governing body). It means we don’t get as many photos as I want. We can’t use crowd shots that show faces, for example, because I’d have to get a form for each person in the crowd. Once a parent saw an embedded flickr badge on our MySpace that included a photo of her teen, and she contacted us to tell us she didn’t appreciate having her child show up on MySpace without her permission, even though she had signed a permission form at the event. We took the photo down, even though we had the form, rather than start an ugly incident. She probably expected us to use the photo “in the library” and not on the web. It’s difficult.

  7. I think this analysis stinks. Not that it isn’t accurate nor am I to argue any points, however, this kind of thinking is exactly why libraries don’t try new things. We try to play by the book when no one else is. We try to protect user privacy when they don’t care. It cripples us. No one is going to sue me because I put someone’s face on my library’s flickr account. They think it’s awesome!

  8. Interesting discussion–thanks for posting. I wonder about a sign at your events that says something to the effect of, “By coming to this event you are agreeing to let the library use your image in its promotional activities.” I’ve noticed this printed on concert and sporting event tickets. Seems like it would cover the bases without necessitating a photo release for every individual??

  9. Interestingly, I think Flickr itself will protect from most of the legal issues here.

    As others have mentioned, a photographer has a right to take pictures of people anywhere in public (in other words, where they do not have an expectation of privacy). The photographer can then use those photos as he chooses, more or less. That includes uploading the pictures to Flickr. Once the pictures are ON Flickr, any allowed use of their API to display the pictures is okay.

    If this weren’t the case, Flickr itself could not exist. They would be subject to lawsuits from any individual who ever felt that his picture should not have been taken, even if the photog was well within her rights to take the picture.

    In practical terms, the solution is to take the “youtube” approach: if any person contacts the library and expresses displeasure, instantly and politely remove that photograph “as a courtesy”. My guess is 9 times in 10 this will resolve the conflict. My other guess is that no one will ever comlain, either, as long as the picture isn’t insulting/embarrassing.

  10. I’m not a lawyer either; I don’t even want to play one on TV. But I am the editor who published Bryan Carson’s article in Marketing Library Services newsletter. And I’m thrilled that it’s getting attention and starting discussions.

    The reason I wanted to publish this was to make librarians aware of what the laws were — and that there even ARE laws about how they use photographs. It wasn’t to stop them from taking pictures or using Flickr or any other social networks.

    This discussion is great but I think it’s missing a couple important points. I hope that all the commenters went back to the MLS link and read the whole article, but in case not:

    * Carson says, “State laws differ about the scope of publicity.” So, to complicate matters, the laws are not exactly the same nationwide. how nice.

    * For the folks talking about taking pics of crowds on the street: People think that they are more covered by privacy laws when they’re at small indoor events (ie, not concerts, conventions, etc.). This is one reason why it’s important to tell them that you could be using their pics — they think they have more privacy rights than they really do. These are the people who might come back angry.

    * What the law says is that the problem lies with using pics for PROMOTIONAL purposes. This would include using pics in flyers about or ads for upcoming events. (It’s like a company using your likeness in a commercial.) That’s clearly illegal w/o consent. Libraries don’t use pics in that way all that much.

    * All of this begs the question: Is Flickr (and its pals) a publicity / promotional tool?? Maybe that’s what any new looks at the old laws need to address.

    There are different ways around this that I’ve seen in other discussions on the topic. To avoid all your shots being of the backs of heads, some librarians have announced at the beginning of events, “We’re going to take pics to use for promotional purposes. This could include publishing in our newsletter and posting on our website, which anyone could see. If you’re not willing to give us consent to use your photo like this, please sit in [this] area of the room. We’ll be sure not to include that section in any pictures.”

    Keep talking, everyone! Remember, social networking is relatively new in the scheme of things. Maybe we can move toward getting the laws updated to directly address these new uses of photos.

    PS: for those seriously interested in the rights of photographers, check out http://www.krages.com/phoright.htm.

  11. This is Bryan Carson, the author of the article in question. I wanted to respond to some of the questions and comments. I am not (repeat, not) against flickr, myspace, or any other type of social networking. My intention in writing the article was not to endorse or criticize the laws as they currently exist, but simply to describe them. The question of whether the law is right or wrong and whether it needs to be changed is beyond the scope of my article.

    Although publicity and privacy are separate legal concepts, it is important to realize that publicity is an outgrowth of privacy. For this purpose, it is instructive to consider the origin of the law of privacy, an 1890 Harvard Law Review article written by Louis Brandeis and Samuel Warren. The context was that Brandeis and Warren were upset about photographs that appeared in a “tabloid-type” newspaper. A photographer had taken pictures at the wedding of Warren’s daughter, which was a “high-society” event.

    Under the laws of privacy and publicity as they have evolved with regard to the First Amendment, the Warren wedding would in fact be a legitimate news story. However, publishing photographs in a newspaper, newsletter, or blog is fleeting. Certainly they can be found by coming into the library and looking at the paper. But that is very different from having photographs out everywhere, available at any time.

    One post suggested that publicity doesn’t apply because libraries are non-profit entities. Unfortunately, this is not correct law. The law applies equally to for-profit, non-profit, and governmental organizations. You need to obtain permission if you want to use pictures for endorsement or promotional purposes. The First Amendment only covers the use of images as news.

    If the laws need to be changed, it is up to us to contact our state legislators. However, Kathy Dempsey has a good point that people think they have more rights than they do. Telling people to sit in a particular section is also useful. Is is legally sufficient? No, but you probably won’t get many challenges that way. If someone complains, take down the picture.

  12. I wonder if this is more than just a legal issue. Is there a component of this discussion that relates to common courtesy and maintaining a respectful, positive relationship with our users?

    There will inevitably be people who enthusiastically volunteer their images to promote the library of which they are so proud and others who are uncomfortable, embarrassed, or upset by the very thought that their pictures will appear on the Internet.

    Doesn’t it make sense from a customer service standpoint to ask for permission, or at least alert people, before using their likeness to promote our services to others?

  13. These are all very interesting replies. I would like to add a twist for feed back.
    We are trying to attain social networking in our public library. Many of our librarians do not understand nor are willing to learn. I was also told to take down photos of staff.
    How can we achieve social networking with this attitude?
    I would think when showing staff off on our flickr account, it would help people to realize we are social creatures that want to help and are eager for our community to seek us out.
    Any thoughts?

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