That is our child on the advertisement !

At the risk of sounding immodest, I have a cute toddler, and often at malls or other public places, folks pull out their mobile phones, with built-in cameras, and take a snap of the child. Sometimes, they ask permission, which we have never given. But most often they just take snaps surreptitiously.

My concern throughout is what happens if the snap is used for commercial purposes. When are my wife and I going to spot a picture of our child advertising something or the other on the side of a bus or on a bill board or a newspaper ad ? I am sure this is a nightmare for many other parents around the world.

So what would be the legal recourse in this situation ? If we sue the advertiser, he will most probably turn around and say that he has got permission to use the snap because he has bought the copyright from the person who took the snap.

The gray area, on which there is still considerable debate, is whether for a shot taken at a public place, does the advertiser need to take permission from my daughter, or her parents since she is a minor, to use the snap ? Let me emphasize that this is no longer about copyright, but about a person’s right to privacy, and the law does not appear to be uniform across all countries.

I think under current rules, the copyright of the photographer is protected but not the privacy of the people who appear in snaps of public places. That is why TV crews can have cameras in Times Square on New Year’s Eve, or at the Carnival in Rio de Janeiro, and beam the footage worldwide, without so much as a by your leave.

There are those who would argue, and I tend to agree with them, that there would never be any photojournalism if the TV crews or photographers had to take permission of all the folks snapped at every public event they cover, including a visit by the Pope, the swearing-in of the US President, an accident, or on the war front.

But I do believe that, even where the law does not prescribe it, advertisers should take permission from a person that figures prominently, or is featured, in the snap. Even if the person is smiling into the camera, which could imply tacit permission to having a snap taken, it may not mean that the person has agreed to the snap being taken for commercial use.

I am not discussing here misuse of snaps by pedophiles and other underworld types because there are separate laws to deal with that. My concern is about the commercial use of snaps taken in public places, that could offend one or more of the people who are in the snap.

In this connection there seems to be a gray area as is evident from this report in the Sydney Morning Herald that Australia’s Virgin Mobile phone company has been sued by a Texas family, after Virgin put up photos of their teenage daughter on billboards and website advertisements without her consent.

The snap, according to the family, was taken from Yahoo Inc.’s Flickr photo-sharing web-site. It had been put up there by the photographer, the girl’s youth counsellor, using a Creative Commons that allows others to reuse work such as photos without violating copyright laws, if they credit the photographer and say where the photo was taken, according to the SMH report. A link to the counsellor’s Flickr page appears at the bottom of the ad.

It may be argued that the Creative Commons license allowed Virgin Mobile to use the snap. Virgin also provided a link to its source on the Flickr page, which could be construed as giving the photographer credit. But did it do the right thing by the girl in the picture ? Was it correct to use the snap out of its context ? Should the girl sue Virgin or the photographer, who incidentally is a friend ? Who violated her privacy ? To find out how this discussion unfolds, check out this Flickr forum.

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