Samuel D. Warren was not a happy man.
Warren, an elite attorney, and his wife liked to throw elaborate dinner parties, often with his friend and law partner Louis D. Brandeis. However, the parties were often being reported “in lurid detail” in Boston’s Saturday Evening Gazette , occasionally with accompanying photographs, which the two partners didn’t like. In response, Warren and Brandeis more or less invented privacy law.
This all took place in the late 19th century. The period after the Civil War saw two particular developments that led to Warren and Brandeis’ actions. The first was the growth of the newspaper industry, which expanded 10-fold between 1850 and 1890, with much of the growth being in sensationalist papers, including those published by Joseph Pulitzer and William Randolph Hearst. The second was the explosion of photography, particularly the development of small portable cameras by Eastman Kodak and others. This brought photography out of the hands of professionals and studios and into the hands of reporters and the general public.
Warren and Brandeis wrote an article published in the 1890 Harvard Law Review titled “The Right to Privacy.” This article is credited with taking privacy law from a vague concept to a specific set of four legal claims that live on to this day. They are:
1. Intrusions on a person’s seclusion or solitude or their private affairs
2. Public disclosure of private facts
3. Publicity that places a person in a false light in the public eye
4. Appropriation of a person’s name or likeness
More than 130 years later, I’m not sure Warren and Brandeis could have imagined a world of not just yellow journalism, but of 24/7 news outlets, smartphone cameras, the internet and social media, and the importance of branding, even for libraries.
Photos Pose Privacy Questions
Privacy, in terms of photography, presents a number of legal complexities and questions. (For our purposes, both single-image photographs and video raise the same issues.) Library workers often voice questions like these:
- Who can you take photographs of?
- Can you post the photos on your website or social media?
- Does the privacy of photo usage depend on the purpose for which the photographs are taken?
- Can you post photographs of children?
- Can you avoid any legal liability by posting notices that photographs may be taken?
- Are you required to get individual permission forms?
- Who owns the photographs, including the copyright?
I’ve been a librarian, library director, legal research specialist, and legal columnist for a number of years, and I will attempt to provide some clarity to these questions. As always, however, this should not be taken as legal advice, and you should consult your library’s or municipality’s attorney if you have concerns about a specific situation.
The Four Privacy Claims and How Each Relates to Photography
With photography, potentially all four of the Warren and Brandeis legal claims can come into play.
The first, intrusion on a person’s seclusion or private affairs, is considered a tort—a form of injury to a person—in this case, a mental or emotional injury. It is recognized at both the federal level and in most of the 50 states. It has two key elements: First is the intrusion, and second is the seclusion. The intrusion does not need to be a physical intrusion; the act of photography alone can be considered an intrusion. However, libraries and other public spaces are usually well-protected from liability for this tort because the law has broadly recognized that a person who is in a public space is not generally “in seclusion.” Privacy law requires that one must have a reasonable expectation of privacy in order for that privacy to be intruded upon. When one is in a public space, that expectation rarely will exist.
The second claim, public disclosure of private facts, is a similar tort to intrusion, but it focuses on the information that is obtained and then disclosed. It requires that the information being disclosed be considered highly offensive to a reasonable person through its disclosure and not of legitimate concern to the public. It mainly arises during news reporting, and the “legitimate concern to the public” element usually limits the liability.
The third claim, publicly placing a person in a false light, is often connected with the misuse or miscaptioning of images, which serves to create a false impression of the person in the image. As with the other claims, it is also a tort and has two key elements: first, that the false light a person is put into would be highly offensive to a reasonable person, and second, that the false light was created due to a reckless disregard for the false impression that was being made. This tort has become more prominent in recent years as social media and the ease by which images can be recopied and reposted have resulted in more misuse. That said, the “reckless disregard” element can help in reducing the risk of liability.
The fourth claim, the appropriation of a person’s name or likeness, is another tort that is recognized at the federal level and in the 50 states. It provides that appropriating the name or likeness of another person for one’s own use or benefit makes the appropriator liable to that person. This is also known as the right of publicity and is among the most likely risks for any institution that creates and uses images of others.
There is a reason that the saying “A picture is worth a thousand words” is so often repeated. Whether it’s for marketing, news reporting, or simple storytelling, images can create a compelling narrative on their own that both complements and enhances any textual content or structural layout. Recent studies have shown that a narrative’s text may be made more credible with the inclusion of images.
Images that don’t focus on a person, such as shots of your exterior, circulation desk, or stacks, or even the view from the lounge seating, are always strengthened by including one or more people in the image. That demonstrates a human use of the facility and conveys a human connection with the image’s audience.
How should library workers navigate this balance between the benefits of creating these human connections and the challenges of working within a complex and confusing legal landscape? As with many things, the answers lie in a combination of both legal practices and best practice.
Because most libraries are considered public spaces (this includes those that are part of private institutions such as colleges and universities—the legal consideration is that the library is an open space that people choose to enter), the privacy rights of people in those spaces are limited. So, photography is generally legal, without the need for permissions or notice.
Using the images for noncommercial purposes (more about that in a bit) is also allowed. Therefore, taking pictures of people attending a program or using the new book drop, and then publishing them in a library newsletter or even on the website, is permitted. The people in the images have minimal privacy expectations because 1) they are in public, 2) no private facts are being disclosed, 3) no false light is being created, and 4) their images are not being appropriated for the library’s benefit.
All that said, best practices might suggest that a bit more careful thought would be beneficial. The first question that usually comes up is whether permission or a signed release is needed for every person who appears in the image. The answer, as always with the law, is, “It depends.”
Notices and Permission Statements
Certainly, the safest practice is to get signed permission from everyone. But legally and practically, that is usually not necessary. Posting a notice that photography and video recording may occur in the library will cover most situations that would arise.
A good notice will encompass four main elements: First, that people in the library or at an event are informed and acknowledge that photography or video recording may happen while they are there and that they may be photographed. Second, that by entering the library, the person gives consent to their image being used for any purpose related to the library. Third, that there will be no compensation or credit for appearing in the image and that the person waives their rights of publicity. And fourth, that all images remain owned by the library. (The sidebar offers samples.)
A notice such as this will cover most library activities and events. It can be posted to your website and in one or two locations within the library. If there is a specific event where photography will definitely take place, that event should have its own specific notice as well.
Commercial vs. Noncommercial Use
There are a couple of circumstances, however, in which a signed permission form is more likely to be necessary. When images are or may be used for commercial purposes, that may fall under the fourth privacy tort, the appropriation of a person’s likeness for one’s own use or benefit. What is considered to be a commercial purpose has different definitions in different states, but generally includes advertising or the “solicitation for patronage of a particular product or service,” as well as drawing customers or “trade” into the business.
An active advertising campaign, such as for a fundraising event, is more likely than not to fall into this category, so obtaining a written release would be considered a best practice. Using an image on an informational brochure or website might be considered acts that “draw customers into the business,” so again, obtaining a written release (going beyond posting a notice) is also a best practice.
Here’s one way of looking at the difference between a commercial use and a noncommercial use: Images that report on events that have already happened are most likely a noncommercial “news” or editorial use. Images for upcoming events or activities are more likely to fall into the commercial area, for which a release may be necessary.
Images of children present a circumstance in which obtaining a written release from a parent is a best practice. In a strict sense, children have the same privacy rights and limits as adults, with some additional rights geared toward preventing exploitation. However, given the sensitive nature of children, a written release is always the wisest and safest path.
An alternative practice that is recommended in the photography community for both legal and aesthetic purposes is to use images in which the person is “not recognizable.” Using an over-the-shoulder image that focuses on little Johnny’s hands and fingers as he participates in the library’s activity may not only be more aesthetically valid, but by not conveying a recognizable likeness, the image also does not invoke privacy or publicity rights. Similarly, an image of a book talk taken from the back of the room that shows a full house of heads, but does not show recognizable individuals (other than the speaker, from who you probably should get a release), is an effective legal and aesthetic solution.
Best Practices Keep Your Photos Legal
It’s unfortunately too easy to become paranoid about using personal images in library materials. The good news is that because of the public nature of patrons’ visits to a library, the privacy rights of those patrons are relatively low. Simple best practices like posting notices, using images in which people are not readily recognizable, and getting written releases for children and adults under specific circumstances will address most of those concerns.