Legal Question in Intellectual Property in Texas

Right to use photograph of minor child

I am a professional photographer just getting started in my business. This past fall I accompanied my daughter's school class to the local firestation. I was not working at the time, just one of the moms who volunteered to drive. I took my camera and snapped many photos that day of all the children, my own included. I gave copies to the teachers and also a set for the parents to enjoy at no cost.

There was one photo in particular that was outstanding which I want to use in my portfolio and in other ways to promote my business (Web, displays, etc). I know I own the photo and copyright, but am I also required to obtain a release from one of the child's parents before I use the photo? I am wondering how news organizations handle the same issue - I'm sure they don't run around trying to get people to sign releases for every good photo they want to use.

This question has come up as I have contacted the child's mother and while she has not flatly refused to sign a release, she seemed very unlikely to do so. Said she would think about it. The photo is entirely tasteful, professional and the child will not be identified in any way.

Help!!


Asked on 2/18/02, 11:34 am

2 Answers from Attorneys
Bruce Burdick Burdick Law Firm

Re: Right to use photograph of minor child

I disagree with the prior post in saying you need permission, but agree that, having asked for it, you should not proceed without it. I think you are free to use the photograph which you took of a public event in a public place. The child is not a celebrity, the child does not own the photo, and there is no reasonable likelihood that anyone would think the child sponsors or is associated with you. You should not, however, publish identifying information, even if asked, whether or not you have right to do so. If the child were to be hurt as a result of your photograph, you would feel terrible. You have unnecessarily complicated things by asking permission, but that was still the right thing to do. Now that you have asked permission, you chance doing more damage than good by proceeding without it, even though you are probably within legal bounds.

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Answered on 2/19/02, 3:49 am
Todd Epp Abourezk & Epp Law Offices

Re: Right to use photograph of minor child

WE DO NOT HAVE AN ATTORNEY-CLIENT RELATIONSHIP. THIS IS NOT TO BE CONSIDERED LEGAL ADVICE.

My suggestion is that if you want to avoid problems, get a release from the child's parents. You may want to think about suggesting a small fee in exchange for the release. Let's face it, you want to make money with the photo. It might be a nice gesture on your part and get you the release. If they don't want to sign the release, you might want to think about not using the photo. The difference between you and the newspaper is that they are protected by the First Amendment and they are printing the photo as "news" (even though they are profiting). Thank you for your question.

Best regards,

Todd D. Epp, Esq.

Lynn, Jackson, Shultz & Lebrun, P.C.

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Answered on 2/18/02, 12:30 pm


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