# Posting pictures to FB with custody issues



## Elsnba (Dec 4, 2011)

Hi. I'm just starting my business up and ran into a question/situation. I took pictures of a little boy and the mom wants me to post them to FB but she has primary placement. Do I need both parents permission to post or will I be ok with only the mother's permission? She has signed a model release. If the father comes across the pictures, can he take any legal action against me if he doesn't want them on FB? Any help on the matter will be greatly appreciated! Thanks!


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## tirediron (Dec 4, 2011)

You are asking a technical legal question; this is an Internet forum.  Spend the money, consult an attorney who practices family law in your state.


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## cgipson1 (Dec 4, 2011)

^^^ +10!!

If she is primary, and has given permission... then you are "probably" ok (I am not an attorney.. this is only a somewhat educated guess!) ! But in this day and age of frivolous litigation... I would either let MOM post them (so you aren't responsible)... or talk to an attorney and get a professional opinion.

Divorces often get very nasty.. and innocent bystanders can get clobbered too!


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## Big Mike (Dec 5, 2011)

Welcome to the forum.

As mentioned, it's a much better idea to get actual legal advice when you're unsure, than to get 'internet forum advice'.  

That being said, I'm not aware of any reason why you wouldn't be allowed to post the photos....provided the photos don't show any illegal activities or abuse/neglect etc.


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## KmH (Dec 5, 2011)

I'm with Mike. In fact, you may not even need a model release signed by Mom to self-publish the photo for self-promotional purposes.

If you're going to have a photography business I highly recommend you quickly become familiar with the model/property/right-of-publicity statutes in Wisconsin, and US federal copyright law.


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## MrSleepin (Dec 5, 2011)

is it out of the question to just ask the father? i'm sure he wouldn't mind seeing pics of his son.


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## Destin (Dec 5, 2011)

I'm going to catch flack for this, but you have a model release in your hand, the mother asked you to do it. What's going on with the custody battle is NOT your problem or concern. I'd simply post the photos.


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## unpopular (Dec 5, 2011)

I am not an attorney. if you get legal advice from internet forums you're an idiot. the following is not provided for informational, education purposes nor may be applicable to any specific situation and is intended as conjecture only.

----

This is largely between the client and the father. Legally, the OP cannot provide advise either way to the client, even if he does talk to his attorney about it. Even relating what the attorney said might be UPL since the attorney does not have a client/counsel relationship with the customer and unless you quote the attorney verbatim, you're interpreting what the attorney had said. 

The OP only needs to worry about if he or she could be held liable by his or her actions.


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## o hey tyler (Dec 5, 2011)

Destin said:


> I'm going to catch flack for this, but you have a model release in your hand, the mother asked you to do it. What's going on with the custody battle is NOT your problem or concern. I'd simply post the photos.



That was my logic, without precise knowledge of the law. The manager of Baby Gap doesn't need to contact the divorced father to ask if the childs mother has permission to purchase the child clothing. Why would it be different if she paid you for photos of her child? 

That's my knee jerk reaction, but like I said, I am not versed in the legalities.


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## c.cloudwalker (Dec 5, 2011)

o hey tyler said:


> Destin said:
> 
> 
> > I'm going to catch flack for this, but you have a model release in your hand, the mother asked you to do it. What's going on with the custody battle is NOT your problem or concern. I'd simply post the photos.
> ...



I agree with you both which means I can only repeat what "o hey tyler" said in his response: just a knee-jerk reaction, I am not a lawyer.

At the same time, I understand the OP being worried and as such I would seek advice from a lawyer, not from a bunch of yahoos here.


Yeah, I'm one of the yahoos.


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## shootermcgavin (Dec 5, 2011)

He can take legal action against you, anyone can.  Most likely it will start in the form of a letter asking to take it down.  I would just do it, I think you are too worried about something that isn't that big a deal if someone were to get mad.


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## unpopular (Dec 5, 2011)

^^ that is a good point. I am pretty sure that before the father can even take you to court he'd have to provide notice. I don't know much about notice though. I'll ask my wife when she comes home - who is also not legally qualified to provide advise - but at least she got an "A" in Civil Procedure, which is more than what most of us here can claim.


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## GooniesNeverSayDie11 (Dec 5, 2011)

I am no lawyer. However, you are simply posting pictures to facebook which would be equal to posting them on a portfolio of your personal photography website to display your work. The custody and model release are rendered moot.

The only way I can see this even being legally twisted into a potential problem would be 1) if you are using this image commercially 2) if Facebook uses the image commercially as you grant them the right to do when you agree to the TOS. (unless they have changed )


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## unpopular (Dec 5, 2011)

Wait. Is this going onto his FB or hers? I thought it was kind of strange that she wanted him to post images to her FB...


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## GooniesNeverSayDie11 (Dec 5, 2011)

unpopular said:


> Wait. Is this going onto his FB or hers? I thought it was kind of strange that she wanted him to post images to her FB...


 Its irrelevant. Look at it this way....do you have to get model releases from every guest at a wedding before selling the bride and groom pics of the wedding party and all of the guests, or before posting them to your website or facebook page? No. The OP is making this into a more complicated issue than it has to be. As others stated, anyone can sue for practically anything. Whether it has any merit is another story. You may piss people off, and end up with an irate parent, but there isn't much they are going to be able to do about it.


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## shootermcgavin (Dec 5, 2011)

Yup, anyone can make you remove the image, let them do it first.  Have you ever watched a Tom Green show or similar and the first show you can see everyone and then people get pissed and the next show everyone who got mad is blurred out.  Unless you're a millionaire there is little reason to worry the only crazy lawsuits happen with lawyers who see big dollar signs.


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## KmH (Dec 5, 2011)

Facebook has business pages.


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## Kerbouchard (Dec 5, 2011)

There is no reason to waste money on an attorney.  This is very, very simple.  Yes, you can post the photos.  The end.

Oh, and just in case somebody is confused, I will add...Period.

Honestly, you have gotten a lot of bad advice on this thread, specifically from people who claim to not know what they are talking about.  Turns out, when somebody tells you they don't know what they are talking about, you should probably listen to them.


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## unpopular (Dec 6, 2011)

GooniesNeverSayDie11 said:


> unpopular said:
> 
> 
> > Wait. Is this going onto his FB or hers? I thought it was kind of strange that she wanted him to post images to her FB...
> ...



This may not have any consequence, but it is relavent. If she wants him to post onto her FB then it's solely an issue between her and the child's father. If I publish something, that's my responsibility, no matter who presses the upload button - provided it was authorized.

When two parents are married, they work as a single unit regarding the child's welfare. When they split, it's not the same. There are a million cases where you need both parents consent to do something. I very much doubt that this is one of such cases, however.




> The OP is making this into a more complicated issue than it has to be.



That is my first impression as well. Still, why is this image so vital to be on the FB page in the first place? Why is it so important?



> As others stated, anyone can sue for practically anything. Whether it has any merit is another story. You may piss people off, and end up with an irate parent, but there isn't much they are going to be able to do about it.



This is not true. Anyone can file a lawsuit for anything, but it will only go to court if the case has merit. The majority of the "frivolous lawsuits" you hear about have been hyped up by the media. Even the McDonald's Coffee incident is much more complicated than what the media portrayed it as.


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## orljustin (Dec 6, 2011)

Elsnba said:


> Hi. I'm just starting my business up and ran into a question/situation. I took pictures of a little boy and the mom wants me to post them to FB but she has primary placement. Do I need both parents permission to post or will I be ok with only the mother's permission? She has signed a model release. If the father comes across the pictures, can he take any legal action against me if he doesn't want them on FB? Any help on the matter will be greatly appreciated! Thanks!



I'm going to go back to the OP.  First off, you should just give the images to the mother, and she can do what she likes with them.  It is her issue.  Two, sure you can post them.  Just like the mother doesn't need permission to take the kid to the store, or post a picture on her blog, as her contracted photographer, you are doing what the client has asked of you.  (Unless there is some overriding privacy issue you haven't mentioned).  Three, a model release has nothing to do with this.  Do you know why you are having them sign a model release?


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## GooniesNeverSayDie11 (Dec 6, 2011)

unpopular said:


> GooniesNeverSayDie11 said:
> 
> 
> > unpopular said:
> ...



All valid points in different circumstances. However, the point I was making is that the model release isn't applicable. She could have shot a picture of this same exact child without either parents consent ( assuming this shooting was done in a public place or there was no expectation of privacy ) and uploaded it to facebook .


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## unpopular (Dec 6, 2011)

If I understand it though, a release is needed if the image is being used for commercial purposes - such that the model is protected from endorsement, despite that if the model has no expectation of privacy.

I am really unsure where the "commercial use" part of this comes in. If a professional photographer uses an image on his or her commercial website, would that constitute professional use and possibly require a release?


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## Kerbouchard (Dec 6, 2011)

unpopular said:


> If I understand it though, a release is needed if the image is being used for commercial purposes - such that the model is protected from endorsement, despite that if the model has no expectation of privacy.
> 
> I am really unsure where the "commercial use" part of this comes in. If a professional photographer uses an image on his or her commercial website, would that constitute professional use and possibly require a release?



No, commercial use would mean selling the image to Gerber for advertising.  Using an image for self-promotion is NOT commercial use.  Selling a print is not commercial use.  Really, the only time 'commercial use' comes into play is when you are selling an image to a company and they are going to use it to advertise a product or service.  At that point, you would need a model release because you would be using somebody's likeness to endorse a product or service.

Simply posting, sharing, or selling the image is not commercial use.

Also, FWIW, the responsibility is on the user of the image, not the photographer...for instance, let's say the OP sold the image to Gerber without a model release.  It would be Gerber who was responsible for the usage.  Not the photographer.

In any case, the OP is perfectly fine with posting any of those images to facebook.  He doesn't need to have either parent's consent and he doesn't need any sort of release form...


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## unpopular (Dec 6, 2011)

^^ so then if the OP sold the image to Gerber, the client would be suing Gerber, not the photographer?


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## Kerbouchard (Dec 6, 2011)

unpopular said:


> ^^ so then if the OP sold the image to Gerber, the client would be suing Gerber, not the photographer?



Correct, but the OP would probably be named on the lawsuit and it would cost money to defend himself.  The actual liability would be with the company though.  In any case, Gerber wouldn't purchase the photo without the proper releases, so it's kind of besides the point. The only exception would be if the photographer misrepresented the rights to the photo to the company, but most advertisers would still require a paper trail to protect themselves so somebody is unlikely to end up in that situation.


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## 2WheelPhoto (Dec 6, 2011)

This is the internet, everyone is qualified and has great legal advice to offer


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## Kerbouchard (Dec 6, 2011)

2WheelPhoto said:


> This is the internet, everyone is qualified and has great legal advice to offer


I stayed at a Holiday Inn Express last night...

Also, out of curiosity, why is it assumed that a photographer wouldn't know the legal in's and out's regarding sharing photo's?  Why is an attorney required in what is really a very simple scenario?  If you honestly don't know the basics regarding sharing your work online, I don't know how to respond, other than your attorney must be very happy with your payments.  This isn't the type of question that needs an attorney to answer.  It's very, very simple.


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## e.rose (Dec 6, 2011)

Elsnba said:


> I took pictures of a little boy and the mom wants me to post them to FB



I didn't read through the thread so I don't know that this hasn't been asked...

But why does Mom want you to post them to FB?  Why don't you just deliver the images to her and let HER decide what to do with them and where to post them... then it's out of your hands... you're not involved...  Why would she care if *you* posted them to FB?


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## photo guy (Dec 18, 2011)

Consult with a lawyer.


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## Balmiesgirl (Jan 27, 2012)

Follow your instincts and do what feels best. 
Btw.... Your a** is covered by your model release.   when I was doing portrait and wedding photography I posted at least one pic from each session.... Unless the client requested that i didnt. It was included as a check box yes or no on my portrait contract form. If I forgot sometimes clients were worried that I didn't think their kid was cute!


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## 2WheelPhoto (Jan 27, 2012)

Everyone on the Internetz is a legal expert!


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## KmH (Jan 27, 2012)

unpopular said:


> ^^ so then if the OP sold the image to Gerber, the client would be suing Gerber, not the photographer?


The client's attorney would likely sue both Gerber and the Photographer.


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