Photographing children’s birthday parties: special legal issues
The sounds of giggling laughter, balloons, party favors and cake. Children’s birthday parties are often a swirl of activity. Photographing Children’s birthday parties can be a lucrative opportunity, especially as there is an increased likelihood of referrals from within your client base. But, photographing children’s parties often give rise to additional complicating factors that a photographer should consider before finding themselves in a difficult (or potentially business damaging) situation.
We’re not going to be talking about being a mom or dad taking happy snaps at their own children’s birthday party or where you might take the odd photograph at a children’s party your child is attending as a guest.
A contract is essential, as is a model release for the child whose birthday party you are being contracted to shoot. But, as we have written before, photographing minors needs additional thought and consideration. This article explains some of the special issues that arise when you photograph minors.
But, do you need a model release for every guest?
The short answer is maybe. Remember that one of the primary purposes of a model release is to be able to use the likeness of an identifiable subject in your advertising and promotion. So, if you don’t have a model release for those in your images you should consider very carefully if you should use those images in any promotion or advertising activities.
The reason why it is only maybe is because if there is no expectation of privacy, then you do not need permission to take a photograph of a person, whether or not they are a minor. Generally speaking, there is no expectation of privacy when people are in public. Now, permission to photograph (essentially privacy rights) and utilising images for promotion and advertising are two completely different matters and should not be confused with each other. So, the location of the birthday party will be relevant.
If it takes place in a public park then you don’t need permission to photograph any of the participants. Be aware, however, that you may need a permit from a local authority to photograph within a park. If it is taking place in an identifiable building then you may also need a property release, and if the party takes place in a private home, make sure you are contracting with those able to give permission to take photographs on the premises.
Wherever the party is taking place, it may be helpful to ask the parents to clearly indicate on the invitation or verbally that there will be a professional photographer in attendance to all participants in advance. This will allow for parents who do not wish their children’s photograph to be taken to say so.
Why not just ask every guest for a model release?
Because that is unlikely to go down well. Many parents will baulk at a request for a model release for a birthday party – if for no other reason than the reality that they may not know you or have any relationship with you. It has become more likely that parents will assume that if a photo is taken at a gathering like a children’s birthday party that they will end up being posted on Instagram, Facebook, or another social network, but that doesn’t mean you are legally able to use any image you take in this way.
If there is an image of another child for whom you don’t have a release and you love it so much that you know that you absolutely want to use it in promotion or advertising, try to secure a model release for that child before the end of the party. This will take some deftness on your part. Be up front about your desire to use the image, and perhaps offer an incentive to the parent of that child to sign – say a digital copy of the image sent directly to them, or a free print of the image. Be aware that if they say no, you will not be able to use an image where their child is identifiable in any promotion or advertising.
Remember also that commercial uses will need a model release but fine art or any other kind of editorial uses (like a local newspaper) do not require a model release.
Be aware that while you might not have a model release for every child at a party, and therefore cannot post the images on social media, or otherwise use them in advertising and promotion, if you provide images to your client digitally they may end up posting them on social media themselves (because that’s what happens these days).
The parent(s) who contracted you can legally do this (if you have given them a release) because it would be considered an editorial use, not a commercial use.
You could …
1) give them a set with a watermark specifically for use on social media and ask the parent to tag your business page on their own posting
2) be very careful to not use any image where you do not have a model release for an identifiable individual in your own promotion or advertising
3) recognise that while you may not be behaving illegally in taking a child’s image while they are in attendance at a children’s birthday party you are photographing, it may be good customer service to ask a parent (if immediately present) if they mind you taking the image.
Because you are dealing with a particularly vulnerable population in children when photographing children’s birthday parties, you really need to make sure that you and your business are appropriately insured. General Liability Insurance is almost essential for this kind of work (including coverage for injury, illness and coverage for your equipment) as is professional liability insurance that includes coverage for advertising (to cover accidental use of images where you don’t have a model release or permission for use of likeness) and for abuse and molestation – which would cover you in the case of allegations of sexual misconduct, assault or harassment.
Taking images as a parent may not require a waiver, permission or model release, but as a photographer, if you have any plans to publish the images or share them publicly, you will need a model release so that you can use the images for promotion and advertising. If you have no plans to use them in promotion and advertising, you may not need a model release at all. A model release for the child whose birthday it is seems like a no-brainer, along with the parents and siblings of the birthday child. Photographing Children’s parties can be an enjoyable and lucrative pursuit. As with all things, a little prevention and consideration of the risks, can help with prevent trouble down the road.