Do you own the copyright to photos you are using to recruit campers and staff?
Are you using photos on the Web?
Do you have permission from parents/guardians to photograph and use the images of your campers and staff in promotional materials?
Have you checked your procedures lately?
Good risk management requires periodic review of your procedures and practices in countless areas. Using photographs is certainly one of those areas. Consider the fact that actors from the old TV show "Cheers!" have a case before the Supreme Court over the use of their image by a restaurant chain using the "Cheers!" name and ambiance. Okay. So your campers are not actors from a popular TV sitcom. Nevertheless, they have rights with regard to the use of photos depicting their participation at your camp.
Camps are most at risk in the use of images for commercial purposes such as camper or staff recruitment or advertising. Care must be exercised to be sure you have permission from parents/guardians or adults depicted in photos before using those images, particularly when these photos are used for a commercial purpose such as recruitment or advertising.
Risks You Assume When Using Photos
The use of photos in brochures, advertisements in newspapers or magazines, on camp videos used to recruit campers/staff, display booths you use at camp fairs, or on your web site brings certain responsibilities and risk exposures to you. Two of those risk exposures include:
1. potential liability for violations of rights of publicity, and
2. potential liability for violations of copyright.
Rights of Publicity
Camps using photos of campers and staff for commercial purposes such as those listed above may be subject to a lawsuit for infringement of the right of publicity and/or for an action for invasion of privacy of those in the picture. The "right of publicity" generally refers to a person’s property interest in personality characteristics, including, but not limited to, his or her name, voice, photograph, and image. Right of publicity statues in most states generally require consent from the individual (or the parent/guardian) before his or her personality characteristics are used for a commercial purpose.
As a general rule, camps should have a release on file to use photos of campers or staff depicted or represented in any camp brochure, video, audio tape or other recording, Web site, advertisement, or any other medium used for commercial purposes. See sidebar for a sample release. Such releases will serve to minimize the risk that use of the photo will be found to be an infringement of the right of publicity or an invasion of privacy.
Copyright Ownership
When using photos for any purpose, camps should be careful about copyright ownership issues for photos whose copyrights are not owned by the camp.
A photograph taken by a camp employee within the scope of his or her employment will generally be considered a "work made for hire," and the employer camp will be considered to be the author and copyright owner of the photograph.
However, the photographer is generally considered to be the author and copyright owner of a photograph taken by any individual who is not an employee of the camp acting within the scope of his or her employment (e.g., a camper or a freelance photographer). For the camp to obtain copyrights to such a photograph, the camp should enter into a separate written agreement with the photographer wherein the photographer expressly assigns all copyrights in the photograph to the camp. An example is provided:
The term "photographs" shall mean all photographs taken by (freelance photographer) prior to or at any time after the date of this agreement. Photographer and Camp ______ agree that Camp ______ is the owner of all rights in the photographs. Photographer hereby irrevocably assigns, transfers and conveys to Camp ______ its entire right, title and interest in and to the Photographs, including but not limited to all copyrights, trademarks, and other rights including all applications, registrations and renewals thereof and the right to sue and collect damages (in law or in equity) for any past and future infringements. In addition, Photographer, and Photographer’s agents and employees, as applicable, shall execute any and all written documents necessary to perfect or record such assignment to Camp ______ (including all documents necessary to perfect or record such assignment with any governmental agency or office), as requested by Camp ______ and without any additional compensation. Photographer represents and warrants to Camp ______ that he has not previously assigned or licensed any right, title and interest in all or any of the photographs (in whole or in part) to any third party. Photographer agrees that all Photographs are "works made for hire" within the meaning of the United States Copyright Act, to the extent applicable.
Originally published in the 2000 Fall issue of The CampLine.