First, a caveat: I am not a lawyer. The information covered in this post is based on my experience, opinions and research. If you have any legal queries or concerns, please talk to a media lawyer. Consider this a guide, not the gospel!
It’s a no brainer: acquiring consent from people who appear in communications or marketing materials in photo, video or quote form is a must.
Using material for which consent was not sought is legally risky and morally questionable. And not using material because there is no documented consent (yes, it does happen) is a huge waste of time and money.
But what does consent really mean? And what is the best way to go about getting it?
The consent form
The consent form, also known as a release form or waiver, is the most common means of gaining hard copy permission to use images or quotes from an individual.
Consent forms vary, but generally they include some or all of the following:
- The name of the organisation + logo.
- The purpose of the photo/video shoot/story gathering.
- A statement giving the organisation the right to photograph, video, gain information and/or quotes from an individual. A mention of the length of use (eg. in perpetuity).
- A list of the types of media in which the images, footage, information and/or quotes may be used (eg newspapers, magazines or other print media, television, radio and the internet). Also, a mention of affiliate organisations that may also use the material and the geographical area in which it may be used (in the internet age it’s safer to say ‘worldwide’).
- A statement that the material will not be passed on to third parties.
- A financial disclaimer stating that the individual has no right to compensation or monetary benefit from the organisation.
- Name of the individual giving consent, plus their signature and the date.
Here’s a link to an Australian Red Cross consent form. Note that it also covers withdrawal of permission, and a clause relating to Aboriginal and Torres Strait Islanders.
Informed consent – talking it through
I recently spoke to a businessman who was supporting a charity and agreed to a photo shoot and video interview. He thought he might appear somewhere deep in an annual report or possibly on the charity website. To his shock – and embarrassment – he then spotted himself on the sides of buses and billboards around Sydney.
In legal terms, the waiver he signed probably allowed for this. But it clearly had not been explained to him properly that his profile might be used so publicly. If it had, he may have had second thoughts – or he may still have agreed. But at least he would have been more prepared for his sudden celebrity status.
It’s human nature to sign a form – if it’s requested by someone you trust. But that’s no excuse not to talk through exactly what giving consent means – and what the potential consequences in terms of media exposure could be. Truly informed consent takes a little more time than just asking for a signature but it helps build trust and could save everyone concerned a headache down the line.
The law, decency and common-sense
I was once taking some shots in a park for a homeless charity. I spotted a man, apparently asleep on a bench. I was after some generic images, so I made sure his face wasn’t visible and grabbed a couple of shots. Suddenly, the man sprang to life and angrily demanded I delete the images.
This was a tricky situation. Since I was shooting in a public place and did not intend to reveal the man’s identity, I felt I was within my rights. Acting in ‘photojournalist’ mode, I felt I didn’t I need to get this man’s consent, written or spoken.
But the man in question felt very strongly that his dignity was at stake. In different circumstances – perhaps if I had been shooting for my own person project and not for an organisation that could have used the image for fundraising or advocacy purposes — I might have stood my ground (I am firm believer in the right to take photos in public spaces). But in this case it seemed the decent thing to do to respect his wishes. So I deleted the images and apologised.
In hindsight, I’m glad I did. Shooting for editorial purposes (photojournalism) is one thing, but capturing images for non-profits, when those images can be used to advocate a position or raise funds, is another. Whatever the legality of a situation, ethics should always come first.
Who handles consent?
If I am on shoot alone (ie. without any comms staff from the organisation I’m working for), I will handle consent myself. But if there is a comms person on hand, I would always prefer that they take charge of consent. As the photographer/videographer, shoots are busy – there’s a lot to do and often little time to do it.
As discussed above, consent should involve talking it through so that everyone is on the same page – not just handing over a form to sign. That should not be rushed.
Also, if for whatever reason consent forms are not completed, it tends to be the comms staff, not the photographer, who has to clean up the mess!
Under 18s
Anyone under the age of 18 is considered a child and therefore the consent of a parent or guardian is required. In many story-gathering situations this adds a layer of complication – after all the parent/guardian may not be present at the shoot.
This means prior planning/preparation is required. If shooting in a school, for example, the school itself would need to contact parents – by note or email – for consent. This is often best done a week or so before the shoot to ensure the communication gets through (as a parent I’m not stranger to the scrunched up note hiding in the recesses of a school bag).
Group consent
Clearly at large events with many people, it’s not feasible to ask everyone to sign a waiver.
Here, a release notice, published on invitations, on a sign at the door or anywhere where it may reasonably be seen, may suffice.
It could look something like this:
“Please be advised that photographs will be taken at the event for use on the …… website and in the press, marketing materials, and other …….. publications. By entering this event, you consent to ………. photographing and using your image and likeness.
Alternatively, an announcement might be made at the beginning of an event explaining that photographs/video will be taken. Participants are then given the chance to ‘opt out’ should they not want their image taken or used.
When is verbal consent enough?
When possible, it’s always best to get a signature on paper. But what if the individual in question is illiterate?
Sometimes, when working in developing countries I photograph or interview individuals who can’t read and write. Clearly they are in no position to complete a consent form.
In this situation, a speaker of the local language, perhaps a representative of the organisation I’m working for, will talk through the form and ensure that the individual understands what it means and is comfortable with it.
In some cases a thumbprint can substitute for a signature. In other cases another individual trusted by the subject may sign on his or her behalf. It may not be perfect, but at least it’s a record that consent was sought and given.
Conclusion
Ultimately the purpose of consent for non-profits is to get everyone on the same page. In my experience, most people are happy to offer their time, image and words for a good cause. Seeking their consent – and ensuring that that consent is informed – builds trust and insures that no thorny issues will crop up down the line.
