A Child’s Right To Privacy in a Visual Marketplace

When I was much younger, a member of my family was a victim of a violent crime. For years, I requested that no photos be taken of her in school or at extracurricular activities, so that the perpetrator would be unfamiliar with her appearance as she grew up. The class/rec room in my basement was built as a protective sanctuary where my kids could play, unobserved. (BTW: the criminal went to jail and was ultimately deported, but I feared for our family for nearly 10 years).

Now I am a face and body painter and my business markets itself via photos taken of party goers with designs painted on them. Currently, I am in a ‘paint-every-day-challenge Facebook group’ (Inspiration to Paint). I had an assignment Friday to paint a fabulous Wonder Woman design and promote it to my clients. I did just that on a lovely little girl at a corporate event and then asked the mom if I could take the child’s photo, explaining why I needed JUST THIS ONE design. Mom said “sure, as long as it is not going on the Internet.” I explained to her my daily painting challenge and that I would, in fact, be sharing it in a Facebook group comprised of “innocent and lovely face painters” around the world. Mom was nonetheless clearly uncomfortable, and thinking back to my insecure feelings of years ago, I could understand her concern. “No worries,” I said to the nervous Mom, and no photos were taken.

As a rule, I do not allow my team members to take photos on the job, since they are there to please the hosts and their guests, not to promote the company. Taking photos of well-executed designs slows an artist down, seems self-serving and really does nothing to add to the enjoyment of the guests. So, my rule is: do an awesome job on site, distribute business cards to those who ask, and the marketing of the company will take care of itself through those actions. There are, of course, many things I do “behind the scenes” to share our business with our customers.

But you say: “what about a cool new design, or a theme that I have never painted before?” You want to keep those images for later. What about the gorgeous child who just radiates beauty with that butterfly you painted on her? No matter what the reason, below you will find my thoughts on why you should not take photos on the job without a model release signed by the child’s parent.

It is our responsibility (working with children) to protect our smallest patrons, who may not be able to protect themselves. Reputable photographers do not capture random shots of children at fairs and festivals and neither should we, without parental permission. In my fair booth, I do not allow “people with cameras” to take photos of the child in my chair. Some “so-called” journalists have accused me of not allowing them to promote the town’s activities, and clearly my company will never be mentioned in their paper. But good journalists have ID cards, a press pass and know to ask the parent before snapping the shutter.

The Federal Trade Commission, which governs privacy rules regarding personal information gathered on the internet, considers photos and videos of children to be privacy-protected and should only be uploaded for commercial use by a business with parental consent.*

New laws in France affect how people post photos on social media. Under French privacy law**, anyone convicted of publishing and distributing images of another person without their consent can face up to one year in prison and a fine of €45,000. That would apply to parents publishing images of their kids, as well. Viviane Gelles, an attorney specializing in internet law, tells the newspaper that French law makes clear that “parents are charged with protecting the image of their children.”

Although we are not so protective in the U.S. of our social media posts, as face painters we may not know if the guest sitting in our chair has a reason to hide their identity. Divorce, custody battles, protection from a criminal, residing in a foster home, and others could be reasons to keep the identity of a child private. Better to be safe than sorry, and err on the side of professionalism…just like a reputable journalist.

If the parent says okay to snapping a photo, have a model release at the ready, so you know if there are limitations to using that child’s image. Is it okay to post on Facebook (which can geotag a photo so that the location of that interaction is identified)? Is it okay to use the photo to promote your business on the web site? In a contest? In a contest to win a monetary prize? In a newsletter? For training purposes?

I have heard many a face painter say that the photo is for their own training purposes to study later, but then the image appears on the internet as a record of their activities of the day. This is outright deceptive.

Believe me, I have heard myself saying to a freshly painted child, “would it be okay if I took your picture?” But the protector of that child’s privacy is only a parent or guardian, not the child themselves. It only takes a moment to get them to sign a model release.

Don’t know what to include in a model release?

Download them here for free:  Sample Adult Model Release Form, Sample Child Model Release Form
Feel free to make them your own.

* Federal Trade Commission FAQ’s
**https://www.theverge.com/2016/3/2/11145184/france-facebook-kids-photos-privacy
Questions, comments about this article? I would love to hear them.