Churches often use photographs that they’ve taken during worship services, conferences, and outreach events on social media, the church’s website, and promotional or informational materials like brochures and flyers.

But using such photos in these publications without the permission of the individuals in the photos may lead to legal liability. 

Virginia has outlawed the use of someone’s picture without prior written consent if used for advertising or trade. The person whose photograph is improperly used may sue for an injunction to stop the unauthorized use. The person may also recover any damages resulting from the unauthorized use. In egregious cases, a court may even award punitive damages. Churches should be aware of the risk associated with unauthorized use of photographs and implement best practices to avoid liability because the statute, although not yet applied against churches, could possibly be applied against them in the future.

The Virginia statute applies to photographs that are used for advertising or trade. A photograph is used for “advertising” purposes if it appears in a publication that promotes the use or purchase of a particular product or service. Courts will examine all aspects of a publication to determine if it is an advertisement. Whether a court would consider promotion of Sunday services to be an advertisement is unclear. Undoubtedly the promotion of items for purchase, like tickets to a church conference or study aids the church sells, would be an advertisement. Any photos used in the promotional materials for these items are subject to the Virginia law on unauthorized use and could expose the church to liability.

A photograph is used for “trade” if employed to draw commercial activity to an entity. Churchgoers seldom regard the church as carrying on commercial activities. But in today’s increasingly secularized society, it would not be surprising if people considered the church to be more like a business than a religious fellowship. Although likely not a correct application of the law, a court could equate a church’s regular services to trade or commercial activity. Therefore, any promotion of the services would be seen as an attempt to draw trade to the church, and the promotion would need to comply with the law regarding unauthorized use of photos.

The law regarding unauthorized use does not apply to photos used to report on newsworthy events or matters of public interest. The law also does not apply to photos that appear in fleeting and insignificant ways in the publication so as to be “incidental” to the purpose of that publication.

Considering the scope of the law and its potential application to churches, there are some best practices that churches should implement to protect themselves from liability when using photographs. First, the best way to avoid liability completely is to receive written consent from all the individuals that appear in photos that the church would like to use. It may be difficult to receive such written consent from visitors, but a church can require all staff and volunteers to sign releases giving the church permission to use any photos in which they appear. It may be possible to have all church members, at the close of a new members class for instance, to sign a release giving the church permission to use any photos in which they appear.

Second, photos are more likely to be considered incidental to the purpose of a publication (and therefore exempt from the law) if they are merely used to fill up space. Therefore, churches should try to use photos of the church building or of people from whom they have received consent, like staff and guest speakers, before resorting to photos of those from whom they have not received written consent. If a church needs to use photos of those from whom it has not received consent, these photos should be less prominent than the other photos that are safe to use. Regardless, a church should never use a photo of a minor without the permission of that minor’s parents or guardians.

Additionally, churches should try to the extent feasible to use crowd shots or other photos in which individuals cannot be identified. This could include photos of people from the back so that no faces are shown.

Under no circumstances should names be used in conjunction with the photos unless the person has given consent to the use of his or her name in addition to consent to the use of the photo. People may allow a church to use an anonymous photo but are uncomfortable with being personally identified.

Finally, the church should provide a mechanism by which a person may contact the church to request that a photo of him or herself be removed. This generally will be some form or method of contact that is included on the church’s website. If anyone requests that a picture of him or her be removed from church publications, the church should promptly remove the photo.

Churches should formally adopt a policy concerning photograph use that encompasses all the preceding recommendations. That way, in case the policy is not followed, the church can show that it does not authorize or approve of such misuse.

Contact Davis Law Group

If you have questions regarding how your church or business can use photography or implement a photography policy, feel free to reach out to our office. Our team of qualified church and nonprofit law attorneys are here to provide peace of mind to you and your congregation.