Promotion of our parks and recreational activities is vital for public awareness, and a good picture can be a wonderful promotion tool, but what are the legalities regarding using photos taken in our parks without signed releases? Although the laws of the 50 states vary, all states recognize that individuals have a right to be left alone in their daily lives and that harm (in the form of embarrassment, scorn or loss of status) can result if that right is violated. However, our right of privacy is not absolute. In particular, according to the American Society of Media Photographers (ASMP), the courts have long held that news reporting and social, political and economic commentary — the things the First Amendment was designed to protect — are more valuable to society than an individual’s right to be let alone. Therefore, images that are part of the public colloquy about events have usually been exempt from privacy lawsuits. In contrast, the courts have generally held that making money is distinctly less valuable to society than the right to be left alone.

 That doesn’t mean anyone with a camera has free rein to take photos anywhere. Your First Amendment rights stop when it comes to locations where people have a “reasonable expectation of privacy,” such as public bathrooms and hospitals. In addition, you may not take photographs of people in their home through their windows even if you are photographing from a public place such as a road.

 The determining factor for when you need a release is based on how the photograph is used. Without a release, the photos taken can only be used for “editorial” purposes. That doesn’t mean the photo can only be in a newspaper or magazine; photographers can and do use those images in books and galleries. It does, however, mean that images cannot be used for commercial purposes. Using a photo of a cute kid for an advertisement requires a release. Using the same photo in a newsletter does not. ASMP states, “Thus, privacy issues typically arise when an image is used for purposes of trade or advertising.” That means it’s not the picture, but how it is used that determines the need for a release. For instance, an image that is printed in a newspaper, shown in an exhibition or reproduced in a book might well be immune from a privacy suit. But the commercial sale of coffee mugs or t-shirts with the same image would probably not enjoy such protection. An advertisement almost certainly would be considered “commercial usage.” The American Civil Liberties Union puts it this way: “When in public spaces where you are lawfully present, you have the right to photograph anything that is in plain view. When you are on private property, the property owner may set rules about the taking of photographs.” 

 One important consideration is if the individual is playing in an amateur league in a park. Amateur leagues often rent public parks for events. Some jurisdictions consider the property private for the event’s duration. If that is the case, the league has the right to ban photography during the game.

 As stated above, you can’t publish images that depict someone who would have a reasonable expectation of privacy, or images captured on private land where the landowner forbids photography. It is important to note that while you may be on public land when photographing, you cannot publish photographs that are defamatory, or in the case of a minor, anything that could be considered indecent. I expect all of us in the park and recreation business are very cognizant of issues relating to decency, especially when it comes to minors.

 So the question becomes, why use a release? ASMP states, “A release is a written agreement between you and the person you are photographing, or the person who owns the property you are photographing. The purpose of the release is to protect you from any future lawsuits the person might file for claims such as defamation and invasion of privacy. It doesn’t just apply to professional models or situations where people know they are posing for photos. You should seek to get a signed model release any time that your photos contain recognizable images of people, unless you are certain that you will never want to use them for anything other than editorial purposes.

 “A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release.

 “The releases you obtain should be saved forever and should be linked in some way with the photographs to which they relate. You can expect to be asked to produce them whenever you license an image, and you will need them if you ever have to defend yourself in court.”

 That means that technically you do not need a release for any photos you take and use on your social media page or send off to use in editorial publications. However, we live in a litigious society, and people are not always aware of the laws. So the decision to have a release is left up to the individual and organization, keeping in mind that while the law is on your side, others are not always aware of the law.

Becki Cramer is the Director of Communications for the New York State Recreation and Park Society.