With the increased role of visual communications in engagement efforts, colleges and universities have frequent occasion to feature member of the campus community, visitors to campus and participant in university activities in communications. Laws require that institutions obtain permission for certain uses of individuals’ images, and institutions that are not in compliance with the law may face legal claims.

Images maintained by the University, which are often shared across the institution for a variety of multimedia purposes (including through Brown’s digital asset management system), must have the appropriate permissions for use to be compliant with privacy concerns and in order for Brown to have a robust repository of images for communications.

Federal and state law, together with University’s Image Use Policy, govern the use of photographs and other images that include students, faculty, staff, alumni and visitors to Brown University’s campus.

The federal law, known as the Family Educational Rights and Privacy Act (FERPA) protects the confidentiality of certain information and records pertaining to students that the University maintains. The University is prohibited from disclosing to third parties information from a student's educational records unless the student consents (or a FERPA exception applies), though FERPA does permit the University to define several types of student information as "directory information." Directory information may be disclosed to third parties without the student's consent unless the student has requested in writing that the University NOT disclose his/her directory information. The University has designated photographs of students as directory information as long as they are used only for University purposes.

However, the University's use of the photographs and other images of people must also comply with Rhode Island law. RI Gen. Laws Sec. 9-1-28 and RI Gen. Laws Sec. 9-1-28.1 provide that any person whose name, portrait, picture, image or likeness is used without that person’s consent may bring an action against the person so using his/her name, portrait, or picture. There also are provisions of Rhode Island law pertaining to publicity that places individuals in a “false light” in the public (when individuals feel that they were portrayed in a manner that gives a false impression).

The Image Use Policy applies to staff, faculty, students, visiting scholars and consultants and governs their use or reproduction of photographic and electronic images under the auspices of the University or when using University facilities. 

Please note that permission to incorporate a produced work into a communication (for example, consent to use a photo) is distinct from image-use permission (consent from the person in the photo) and is additionally subject to Brown's policies for Copyright and Fair Use.

A “Do I Need Image Use Permission?” chart is available to Brown’s communicators from the Office of University Communications upon request to serve as a resource guide.

The law requires written permission for USE of an image if either or both of two conditions are met:

1. Individuals captured are identifiable and had an expectation of privacy.
   This includes individuals in the following spaces unless these spaces are being used to host classes, lectures or other public events: residential spaces; private offices; libraries; in chapels or worship spaces; and in secluded spaces engaged in private conversation.
2. The individuals captured are identifiable and the image is used for marketing or promotional purposes.

This applies when an individual or individuals are identifiable and “featured” — the focus of an image — for websites, publications, e-communications, social media etc. for the purposes of: promoting academic or administrative programs; promoting events in advance; fundraising; recruiting; and encouraging attendance or participation, etc. News and news-related social media are exempt, as long as there was no expectation of privacy for the individuals in the images when the images were captured (coverage of events, announcing new initiatives, announcing research, etc.). Social media used for news also is exempt, though not for marketing or promotion.

News is a factual account about an individual, initiative, event, body or work, etc. that would be “new” to the reader (“news”) for the purpose of relaying information for advancement of knowledge. Documentary use is the factual “documenting” of a person, initiative, program or event, purely for the purpose of relaying information or advancing knowledge.

Promotional or marketing uses are generally considered those that use communications vehicles to seek to motivate action — attendance, donation, participation, enrollment, etc. Also, most websites are seen as marketing vehicles, except for sections devoted to factual news.

It is possible to capture an image for news use and use it subsequently and repeatedly for news use. By law, the intent of capturing the initial image does not exempt the image from requiring permission if certain conditions exist for subsequent marketing or promotional use. Therefore, it is best practice when capturing images for news or documentary use to secure information about the individuals’ identities in the images (which is common practice for the purpose of captioning news photos) to make it easy to contact individuals featured in the image if permissions are required for potential future marketing or promotional use. This provides the greatest flexibility for using images.

Certain forms of blanket notifications can help inform individuals who may be photographed that Brown may use their image. However, in the cases in which a unit should obtain permission for the specific use for marketing or promotional purposes, written permission should be obtained.

Brown communicators may consult the “Do I Need Image Use Permission?” and “Managing Image Permissions” guideline documents available from Brown’s Office of University Communications.

Written permission must be obtained and maintained by the Unit that secures the image for the reasonable life of the image. Permission can be in the form of a release form or other written consent specifying the use. The Office of University Communications has available a General Consent and Release form for use by offices and departments across campus.

The Office of University Communications is responsible for ensuring that images available to be shared with offices across campus have appropriate permissions. Units will be guided in sharing images to the shared gallery only for which permission for use “by Brown” (any unit on campus) has been granted. The Communications Photographer in OUC maintains the digital asset management system and guides offices in appropriate protocols for shared images. The photographer also contributes photos of academic and campus life regularly to offer a replenished and robust source of images.

There is a distinction between copyright law and image permission. The right to a produced work — a photograph, video, artwork, written material or other multimedia work — relates to copyright law. The producer of the work owns the copyright of that work, and if the work is produced for the University (by University employees for their work product), the University has rights to it. Images produced by non-employees cannot be used without a professional services agreement OR written consent from the creator of the image (in accordance with copyright law).

However, this permission pertains to the produced work itself and not the people IN the image. If individuals are pictured and the photo or video is to be used for marketing or promotional purposes, separate image use permission might be required. The permission to use the images of the individuals pictured in the work is governed separately by privacy law. For questions about intellectual property and copyright, please refer to Brown's policies for Copyright and Fair Use.

Because of significant liability issues, identifiable images of minors cannot be used for any marketing or promotional purpose without the written permission of a parent or guardian for the specific use. Minors may be captured for news and documentary purposes.

Lecture capture often involves intellectual property rights, so the Office of General Counsel should be consulted before posting of this type of content. Most institutions of higher education maintain very brief “lecture video permission to use” forms managed by their divisions of educational technology.

The term of permission is dependent on the terms expressed when permission is sought and granted. For example, permissions sought for a “series of events,” for “the duration of a trip,” “installments of a series,” etc. should have this language in the request for permission.

When seeking permission, it’s best to ensure that the request for permission makes clear that the image will be used “by Brown,” rather than for a specific office or for a specific publication, to ensure that the image can be used by any unit of Brown for Brown purposes.

Images secured with permission for use by Brown are for use in University communications and media and cannot be provided to entities outside the University for non-University purposes without the written permission of the individuals pictured. If Brown doesn’t own the image, the copyright holder must grant permission if a written agreement giving Brown unlimited redistribution rights is not in place.

It is the responsibility of the “owner” of the photo to secure permissions. Units always should confirm with the external entity providing the photo to Brown that the individuals pictured have given the external entity redistribution rights for the image or otherwise have agreed to have the image provided for Brown’s use.

Any release form must have language that gives Brown permission to use the images, and should specify whether the photos are for news and/or promotional use.

Public domain and Fair Use doctrine apply to copyright, which is distinct from image permission. Public domain applies to intellectual property (copyright, trademark and patent law), not privacy law. Something is in the public domain after the intellectual property rights have expired, meaning “the public” now owns the works. Separately, the U.S. Supreme Court has established tests for “Fair Use” of “owned” works not in the public domain, but again this applies to copyright infringement.

Individuals using non-complying images may be vulnerable to personal liability and pass that liability on to their offices, programs or departments.

The Office of University Communications maintains a more detailed FAQ document for members of the internal campus community who seek further guidance. Email the Office of University Communications to request the “Detailed FAQ for Understanding Brown’s Use of Images.”