Legalities of release forms in photography

[Johnboy2978]

I work for a non-profit mental health agency and over the last couple of years, we have hired a couple of ladies who do PR for the agency. Part of their responsibilities include publishing brochures and advertisements for the agency which occasionally includes pictures of actual patients we serve. They realize that they need to have a release form in order to use their image, but I question the language of the release form and how they're using the content. Essentially, they are getting patients to sign this release which says that the agency essentially has carte blanche use of it and that it can be used and reused as our agency sees fit (e.g. advertising, fund raising, annual reports, newsletters, tv, etc.) They seem to believe that having the patient sign this release means that it is good indefinitely.

I contend that we can not use the content like this and the release must be explicit and specific in the intent. For example, by signing this release, you are allowing us to use your image in the June Annual report for ABC agency. Once we have used it for the expressed purpose, if we wished to use it for another purpose, a new release would be needed. I know this matter gets even more complicated because it also pulls in HIPAA laws because you are identifying actual patients who are being treated and in doing so, making confidential information public (albeit with their approval).

I am researching this as I write this, but if anyone has already done the homework on this, I'd appreciate your input and info instead of recreating the wheel so to speak.

 

[ronlane]

You are going to get a ton of different answers on here about this topic. Ultimately, it is best to contact a local Lawyer that deals with this type of stuff.

As for my opinion, I don't see the issue with their release. If you take a photo and get a release that says we may and can use this at anytime, and they read and sign it, then I don't see an issue.

 

[The_Traveler]

There are two issues here.

First, since these people are patients being treated in a mental health facility, there is always a question whether the client is fully able to understand the ramifications of what they are signing.

Second, your organization certainly can ask for carte blanche permission, whether it is wise to use patient pictures is something else again.

I have a fair background in the HIPAA regulation (I wrote a book on doing the assessments) and I think that an organization who is using pictures of actual mental health patients, whether you have signed permission or not, is leaving themselves open to litigation and regulatory intervention.

There is no way this can be construed as being for the patient's good or necessary for their treatment.

Picture the situation if you get permission from the patient and the competency of this patient to give permission is challenged in court.
Would you want to be defending that?

There is no way I would do this.

 

[The_Traveler]

In regards to getting a local lawyer's opinion.
The average local lawyer will not have any way to give a smart opinion on the HIPAA regs.
The combination of pictures used in what is essentially advertising and mental health patients is so radioactive that I wouldn't conceive of doing this.

 

[ronlane]

In regards to getting a local lawyer's opinion.
The average local lawyer will not have any way to give a smart opinion on the HIPAA regs.
The combination of pictures used in what is essentially advertising and mental health patients is so radioactive that I wouldn't conceive of doing this.

Thanks for the insight Lew. I didn't even think about the whole HIPPA issue in this situation. I will file that away in the memory for reference.

 

[pixmedic]

There are two issues here.

First, since these people are patients being treated in a mental health facility, there is always a question whether the client is fully able to understand the ramifications of what they are signing.

Second, your organization certainly can ask for carte blanche permission, whether it is wise to use patient pictures is something else again.

I have a fair background in the HIPAA regulation (I wrote a book on doing the assessments) and I think that an organization who is using pictures of actual mental health patients, whether you have signed permission or not, is leaving themselves open to litigation and regulatory intervention.

There is no way this can be construed as being for the patient's good or necessary for their treatment.

Picture the situation if you get permission from the patient and the competency of this patient to give permission is challenged in court.
Would you want to be defending that?

There is no way I would do this.

^^^this. OMG this. X10

In my area, most facilities that have pictures posted showing the actual use of the facility are taken using paid actors to portray "patients".
a few places have pictures of actual employees in various department shots, but most of the hospitals opt for actors in all of their pictures in case they have a "disgruntled employee".

Patients in mental health facilities often have limited POA over themselves (especially BA-52's or marchmen acts) and i would seriously question the validity of their legal ability to give consent. I would recommend the facility get some people to pretend to be patients, where there would be no question of their ability to sign a waiver or consent for image usage. Better yet, all facilities have access to legal counsel concerning HIPPA rules. that would probably be the best place for them to look for answers.

 

[KmH]

Release law (model and property) varies by state.

As mentioned, consult an attorney qualified in both publication law and HIPPA requirements.
There are many kinds of mental illness. Mental illness does not necessarily mean unable to make an informed decision.
Many people with a mental illness are legally competent.

In general: Yes, a model release can stipulate an unlimited range of uses for the image.
A model release can also cover more than 1 image of the person, as long as the multiple images are identified in some way, like by file name, date produced, or range of dates produced.

 

[The_Traveler]

Release law (model and property) varies by state.

As mentioned, consult an attorney qualified in both publication law and HIPPA requirements.
There are many kinds of mental illness. Mental illness does not necessarily mean unable to make an informed decision.
Many people with a mental illness are legally competent.

In general: Yes, a model release can stipulate an unlimited range of uses for the image.
A model release can also cover more than 1 image of the person, as long as the multiple images are identified in some way, like by file name, date produced, or range of dates produced.

That's not the point here.
However 'true' your point, is that there is a real potential liability to be taken to court and having the HIPAA Rules used as evidence that the organization has intentionally transgressed.

The HIPAA rules were specifically formulated to protect Personal Health Information from being used in exactly this way.
No organization - and particularly no PR person - should expose their organization to this possible litigation.

Using patient pictures, even with approval, is treading on the edge of a cliff, daring gravity to work.
All that is needed to have disastrous outcome is one angry relative to sue - and the legal costs and the costs in public respect overwhelm any inconvenience of having paid models.

 

[sm4him]

I agree wholeheartedly with Lew here. The HIPAA rules are what they need to be concerned about here, more than what the release can or can't say. There is NO way I'd use pictures of actual patients for ANY medical organization, mental illness-related or otherwise.

But as to the release in a more general sense--if it weren't in the medical arena where HIPAA rules apply, there would be no reason that the release couldn't give them "carte blanche." Some people might not be willing to SIGN the release, but that's another matter.
That was basically the wording I used in the photo release I created for a recent shoot with bus passengers, and then we also made sure they understood that the release was giving us the right to use the photo not JUST in the current ad campaign, but for any other legal, ethical commercial use we might choose in the future.

 

[Gavjenks]

Yeah having mental health patients sign stuff and then relying on it is pretty dumb.

Normally, carte blanche model releases would be just fine, if they are written correctly (You can't just say "any use" and be super vague about it, and then go use it for a BDSM porn ad, and get away with it usually. There is case law where lawsuits against that sort of thing have won. But if you actually list out enough examples that are similarly extreme, then people sign it anyway, then it will be pretty binding). But for mental health patients, I wouldn't put any more value in any contract than the paper it is written on.



One obvious solution in this case, in my opinion, is to hire non-mental-patient models from outside and have them pose as patients, if you really want to have photos of your facility in action. I'd expect to pay a pretty penny though for models willing to show up in mental hospital ads.

Another probably cheaper option is to just go shop for stock photos that look sort of similar to your facility, and buy and use those. Even then, you need to call up the stock agency and consult with them and carefully read their model release, because mental hospital ads are something that not all stock agencies might have adequately extremely enough worded releases for to be entirely comfortable with.

 

[The_Traveler]

I'd expect to pay a pretty penny though for models willing to show up in mental hospital ads.

Another reason why the organization should not use patients. Because the mere fact that someone is getting care is stigmatizing.
Maybe it shouldn't be that way, but should a PR firm want to indebt the organization to fight that battle?

 

[vintagesnaps]

The type of work I've done involved having families sign HIPAA forms as part of the enrollment process; our agency also had its own photo release form. Those as well as most of our paperwork (except for the initial enrollment form etc.) was signed annually and parents could request to make a change and sign a new form at any time; it was up to the family if they wanted to allow their child's photo to be used or not. Anything involving permission I believe had an end date.

The agency had a staff person who took photos for in-house purposes like agency newsletters etc., and releases would be checked prior to using a child's photo. If there was an agency sponsored event and an outside photographer came in (local newspaper), we had to pull releases to be checked and someone from our agency accompanied the photographer to make sure only children whose parents had signed a release would have their photos taken/used. For the individuals we served (our agency served birth thru adulthood) most families would give permission in the same way they would for any child they had in school or youth sports, they may give permission or had the option to decline.

Many rules & regs seem to vary state to state and others that agencies follow are federal; as an employee it might be a good idea to share information you find thru your research with your agency so they can be proactive in making sure they are following appropriate laws related to this.

 

[pixmedic]

One obvious solution in this case, in my opinion, is to hire non-mental-patient models from outside and have them pose as patients, if you really want to have photos of your facility in action. I'd expect to pay a pretty penny though for models willing to show up in mental hospital ads.

i dunno....
do you think the actors in the erectile dysfunction, STD's, bankruptcy, and feminine hygiene ads got paid big bucks?

 

[Gavjenks]

One obvious solution in this case, in my opinion, is to hire non-mental-patient models from outside and have them pose as patients, if you really want to have photos of your facility in action. I'd expect to pay a pretty penny though for models willing to show up in mental hospital ads.

i dunno....
do you think the actors in the erectile dysfunction, STD's, bankruptcy, and feminine hygiene ads got paid big bucks?

Higher than for an average boring toothpaste commercial? Probably yes. Maybe not so much the feminine hygiene. That's not particularly stigmatizing.
"Oh my God, I know that woman on that ad. She uses FEMININE HYGIENE PRODUCTS?! WHAT'S WRONG WITH HER?"

 

[The_Traveler]

Many rules & regs seem to vary state to state and others that agencies follow are federal; as an employee it might be a good idea to share information you find thru your research with your agency so they can be proactive in making sure they are following appropriate laws related to this.

It is not an issue of following the appropriate laws.
It is the issue of putting your organization at risk of litigation that potentially could be very detrimental to the organization - even if you win.

Do not use patients who receive mental health services for advertising, even if they do sign a consent form.
The downstream risks for litigation and adverse publicity are too great.