Do Babies Have the Right to Their Own Image?

We recently posted Does the Royal Baby Have a Right to Privacy, which asked the question: is it appropriate for paparazzi and other media to take and publish images of the Duke and Duchess of Cambridge, as well as infant Prince George, without the family’s consent. The conclusion was that, under Article 8 of the ECHR, the Duke and Duchess could legally file injunctions against any member of the media taking photos without consent, since many official photos of the royal family and Prince George would be made available for media use and the media did not need to take unsolicited photos to distribute the news of Prince George’s birth.

What about non-royal babies, who aren’t being hounded by paparazzi, but rather by their own parents? We’ve all seen the Facebook friend who can’t stop sharing pictures of her children online, or the couple Instagramming their new addition from baby bump to delivery. Parents literally photograph and post every aspect of their children’s lives, from toilet training to midnight vomiting. One famous Tumblr, Reasons My Son Is Crying, has hundreds of images of toddlers mid-tantrum.

Do these infants and toddlers have the right to their own image? In 15 years, will we see a young adult suing his parents for posting his toddler meltdown, with mocking commentary, to Reasons My Son Is Crying?

In 2011, the New Jersey State Assembly considered bill A3297, making it illegal to photograph or videorecord a child without parental consent. This bill would have established two key precedents: first, that all non-consensual photos/videos of children not under legal guardianship are illegal, even if these children are not the subject of the photo and even if the person running the camera accidentally captures a child in the camera’s field of vision. Second, that parents own the right of consent to images of their children, and that children themselves do not own this right.

In the end, the Assembly chose not to vote on A3297, deciding it would not stand up to constitutional scrutiny. This appears to be a wise choice, considering the possible legal entanglements it assumes: a godparent being unable to take pictures of his godchild, for example. It also makes it unclear as to when children become old enough to retain the rights to their own image: does this happen at age 18, or earlier? What happens when two 14-year-old children photograph each other?

These are only a few of the issues lawyers will have to face in the years to come. Glenn Peterson Attorney and California Lawyer Magazine Super Lawyer, is already working on cases involving young people, social media, and intellectual property. These types of cases, involving everything from Twitter feeds to mp3 sharing, will set precedents about ownership and age of consent that will no doubt come into play when the first young adult sues his parents for posting to Reasons My Son Is Crying or oversharing on Facebook.

Currently, the rules seem clear: parents have the legal right to post as many pictures of their children as they like, in all types of unflattering or inappropriate situations. However, expect these rules to change as these current toddlers grow up and realize that their lives have been turned into a photo album for the world to share. As a budding lawyer, it will be your job to sort out who is right, who is wrong, and who owns the right to a young child’s image.

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