Can a newspaper sell a photo of my daughter to the public?

[keir23]

Hi all,

Bit of advice needed here.

A local paper took photos of my 4-year-old daughter and her classmates as part of their annual 'new school starters' editorial feature.

Individual and class shots were taken. The individual shot they took of my daughter was used full-page as a cover for the school special pullout.

I asked the paper for a digital copy of the pic as a souvenir; they directed me to the website where I could purchase it. I was horrified to discover they are openly selling this picture to the general public, and it is searchable by her name, and will be indexed by Google.

I don't want my daughter's name to be Googleable until she is older when she may decide to self-publish etc - and I certainly don't want photos of her being sold on the open market.

I was not asked for permission, never signed a release form and am unhappy that the school allowed this to happen.

What are my rights here? Do photographers not need to get permission before selling photos these days? Was permission granted by the school? Is the school allowed to give permission? As her parent, do I own the copyright to her likeness?

Any advice gratefully received.

Thank you.

[AndyJ]

Hi Keir,
The problem you have described lies more in the realm of privacy than actual copyright law. The only time that the Copyright Designs and Patents Act provides a limitation on what a copyright owner (ie the photographer or his employer in this case) can do with photgraphs is when they are commissioned for private and domestic purposes. Here's what Section 85 says:

85 Right to privacy of certain photographs and films

(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have—

(a) copies of the work issued to the public,

(b) the work exhibited or shown in public, or

(c) the work communicated to the public;

and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

(a) section 31 (incidental inclusion of work in an artistic work, film [F2or broadcast]);

(b) section 45 (parliamentary and judicial proceedings);

(c) section 46 (Royal Commissions and statutory inquiries);

(d) section 50 (acts done under statutory authority);

(e) section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c.).

As you can see that does not apply in your case.
Assuming that the newspaper obtained the school's permission and no subterfuge was involved, they are in the clear legally speaking. That's not to say that this is not recognised as a sensitive area. Here's what the Editor's Code of Practice says about children:

6 Children

i) Young people should be free to complete their time at school without unnecessary intrusion.

ii) A child under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

iii) Pupils must not be approached or photographed at school without the permission of the school authorities.

iv) Minors must not be paid for material involving children’s welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.

v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

Although you did not sign a written release this is not technically required under UK law. However I do agree with you that the school should have sought the permission of parents before allowing the photographer to take the pictures.
If you have not already done so I suggest you write to the newspaper and ask them to remove the photograph from sale, although they are under no obligation to do so. If you fail to get them to agree you could contact the Press Complaints Commission, but I fear they will also tell you that as the newspaper has not broken the editor's code there may be little they can do.
On your final point, I'm afraid in UK law someone's likeness cannot be subject to copyright. In the US many states have laws governing the use which may be made of a person's likeness under the so-called Right of Publicity* and of course the French have much stronger laws which protect privacy, but there is no real equivalen here. Article 8 of the European Convention on Human Rights (brought into UK law by the Human Rights Act in 1998) is the closest we have to statutory protection in this area:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

* Incidently the US concept of Right of Publicity does not prevent the use of photographs of individuals for editorial purposes, so in most cases photographs can be used without consent if they are necessary to illustrate a news story.

[keir23]

Hi Andy,

It's very kind of you to take the time to explain, thanks very much. Your help is greatly appreciated. And it's an interesting topic.

Thinking about it, I believe there was some disclaimer in one of the documents involved with the school admission process - I will have to check - in which I may have given consent for my girl to have her pic taken. We did have, within weeks of her starting, one of those companies that goes in to schools, takes portrait photos, then tries to sell prints to parents.

I didn't buy them - I have taken better photographs myself and have a better printer - but I didn't mind them doing it as I'm confident we were the only people being offered the photos.

I understand the newspaper taking pics is just the same thing, another revenue stream written into their business model, where parents buy prints and companies advertise school uniforms and the like among the photos on the pages.

There was no subterfuge and I'm sure I have nothing to worry about in terms of privacy, no-one is going to be interested in buying the pic other than me; also admittedly it is nice to see her in the paper and she's very proud. The thing that's irked me is the photo being sold for profit by the newspaper.

I assumed consent would be given strictly for editorial use and a standard disclaimer attached that said the image could not be resold. More fool me for not checking.

Obviously I need to contact the paper and I will check with the school, but I thought I'd get an opinion before doing so. Thanks for your input.

Keir