Photo Attorney

Jul 29, 2007

Taking and Posting Photos of Children Is Not a Crime

Many photographers take and post photos of people on their websites and then wonder whether they need a model release, especially for children. But you don't for editorial uses, even when the purpose of the photos is clearly wrong.

This fact is a bit difficult to face in one extreme situation. Jack McClellan, a self-described pedophile, has had web sites detailing how and where he likes to troll for children. As reported by the New York Times, "he had been posting nonsexual pictures of children on a Web site intended to promote the acceptance of pedophiles, and to direct other pedophiles to events and places where children tended to gather."

Parents are understandably upset and want Mr. McClellan locked up. But he's not done anything wrong, as far as anyone can tell. According to the article, "while posting pictures of children in sexual situations is a felony, posting them fully clothed in everyday situations is not, even in the context of sexualizing them by proxy, so to speak, First Amendment scholars said."

Eugene Volokh, a law professor and First Amendment expert at UCLA explains: "The general rule is pictures of people in public are free for people to publish. Now if it is without permission and the person is a child and he suggests the children are sexual targets, you can imagine a court saying this is a new First Amendment exception. But it would be an uphill battle."

Unfortunately, this situation makes it more difficult for photographers with an unadulterated intent to photograph children. People already are spooked by someone with a camera, fearing terrorism. Popular Photography has a great article about photographers being hassled for taking pictures of public places (except for the article's statement: "You can find out if something's been copyrighted or trademarked at www.copyright.gov or www.USPTO.gov." You don't have to register to have a copyright or a trademark and the Copyright Office has not uploaded all registered copyrights to their online database, so checking those lists is not all-inclusive). This example adds pedophile to the list of concerns for those of us with a SLR in our hands.

Thanks to Dan Heller for submitting this topic.

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