Company using my baby's photo to advertise

[pinguwings]

We went swimming this morning and there was a pool photographer. They took some photos of the kids as the grandparents love that kind of thing for Christmas.

When we went to look at the photos they had some already printed spread out on the desk as display. I did a double take and then realised that one of the photos was my DD as a baby - 4 years ago. Photo was taken by the same company but at a different pool. The photographer said we could take the photo away with us- and she doesn't think they have other copies.

I had never given any sort of permission for her photo to be stored or used for advertising. I feel really uncomfortable about it but am I just overreacting?

I thought that photographers owned the photos and could do what they wanted with them? Unless they took it in a private place without your permission (spying essentially), which if it's a public swimming pool wouldn't qualify. I wouldn't really care unless your child was somehow identifiable from the picture (eg name)

[quote sleepymidwife]@SofiaMichelle yeah a swimming pool isn't a public place though. It's private. [/quote]
Yeah, but it is a public place.

Unless it's a privately owned pool, of course.

I think I'd ask for a copy of the release form, and bring it to their attention that it's not reasonable to use the image without asking (and obtaining) permission.

GDPR refers to "images where the individual can be identified" - you could identify your baby from fours years ago - would anyone else be likely to? Might be better to check the legal implications before going in all guns blazing.

at the end of the day, it sounds like a small local company that needs to be made more aware - it's not a major international brand that is making megabucks and saving money on a photos shoot or paying for stock images.

& quite flattering that thye've taken your baby as one of the most attractive from the doubtless hundreds that they take every year.

I believe any photos they take are their copyright and not yours so they can do what they like with the photo.

I don't think they need permission as to how they use the photo but only to take the photo, especially if its kids. Not sure if permission needs to be in writing.

Obviously there are laws around child pornography and stuff, which this isn't.

I'd let it go tbh, its not that big a deal

@PurBal

Generally the owner of the photographs is the photographer so I wouldn’t have been that surprised. I do wonder if you should have signed a release though.

Even when it's a commissioned photo the photographer is (usually) the owner, however this photo of an identifiable human is a record of that human in a specific location at a specific date and time and taken only after the parent consented. So a data subject. A decent quality photo can collect biometric data e.g. using software age up a baby photo, and children are given extra protections under GDPR. In this instance the photo would have been commissioned by the OP who did not knowingly give permission for the image to be used for commercial purposes. Potential additional use of the data have to be clearly disclosed not hidden in the small print. The photographer opens a reputation risk by using photos without proper parental ok.

I believe any photos they take are their copyright and not yours so they can do what they like with the photo
Incorrect.

In order to use someone's image in marketing [and not get sued] they needed to have obtained a model release form signed by a parent or guardian.

It is a well know thing, it even has a name. MODEL RELEASE FORM.

"Where does it say she didn't notice? Presumably the garndparents liked photos of the kids 4 year ago as much as the do today, I think it's safe to assume the OP choose to have the pictures then as well."

That's the way it came across to me I obviously misunderstood.

In which case surely they knew Op's details so that they could ask to use photos for their literature?

People’s ignorance on safeguarding in a case like this is a bit shocking tbh. I bet you’re the kind of people that don’t see the problem of taking photos at your kids school play even though the school have told you not to.

SofiaMichelle
Yeah, but it is a public place.
Unless it's a privately owned pool, of course.

Using that logic what is preventing anyone from entering onto the floor of Parliament while a debate is being held?

The photographers would have had to have the following for this:

1. Permission from the pool owners four years ago to come into the centre and take photos
2. Permission from OP four years ago to photo her child
3. Model release form four years ago to use the photo of her child for advertising. ie permission in writing.

The PP is correct that officially the photographer owns the actual copyright of this photograph unless they have signed that copyright over to you. So they could use the photo in marketing and advertising if they adhered to points 1, 2 and 3 above.

I would be asking them for a copy of the model release form from four years ago. If they cannot give it to you (because it doesn't exist) then they are breaching GDPR and can be fined. Or you could ask them to remove all copies of it from everywhere. I would personally be using the existence of the photo without your permission to get your current photos free of charge.

SofiaMichelle
Yeah, but it is a public place.
Unless it's a privately owned pool, of course.

Not correct. The pool would be owned by the pool owners eg David Lloyd or Xxx borough council.

Public places means streets, public parks etc. This is why reporters and cameramen can stand on the pavement near someone's house and film their front door and drive, but the moment they step onto the front garden or driveway they are trespassing if they don't have permission.

Not correct. The pool would be owned by the pool owners eg David Lloyd or Xxx borough council.

Public places means streets, public parks etc. This is why reporters and cameramen can stand on the pavement near someone's house and film their front door and drive, but the moment they step onto the front garden or driveway they are trespassing if they don't have permission.

I have no idea what you think the relevance of this is.

There's no dispute regarding whether the photographer has permission to be there.

I am laid back about my kids having their pics on FB and in school publicity pics etc personally however some friends of mine have an adopted child whose birth parents are very close location wise. They are not allowed to have his photos on any social media or any form of public pics. They would be extremely upset if this had happened. Whilst it is unlikely that the birth parents would see it, it most definitely isn't beyond possible that a similar situation would mean someone could see a child they are not allowed access to attends lessons in a specific location perhaps.

No photos should be used for advertising without permission. It isn't just about people being 'precious' about their kids. My DS is in the public eye to an extent and we have had to have social services and police involved in a situation involving him and an unhinged adult, there are some scary people around and obviously it is his choice to be involved in an industry where he has to be publicly seen so we were on the ball when something seemed off. If businesses are using photos of children without permission god knows what could happen.