FERPA Guidelines for Photos and Videos
Image and Video Guidelines
The Family Educational Rights and Privacy Act (FERPA) is designed to protect confidential student records. Some photographs and video of students are considered a form of ‘student records’ and thus subject to the limitations imposed by FERPA. Typically, unless a student consents (or a FERPA exception applies), Western will not disclose information from a student’s education records to third parties.
Western Release Form
Western’s Image/Quote Release form details the rights and responsibilities of both the student and Western and should be provided in either electronic or physical form, to Western staff, faculty, and alumni (who are not covered by FERPA) and Western students whenever recognizable images of their likeness are used for commercial or external purposes in print or electronic media. For students or community members under the age of 18, a legal guardian must complete a Release form.
In general, authorized University personnel (and the contractors they hire) may videotape and photograph events and people in public areas on Western’s campus, however, distribution of resulting materials requires sensitivity. It is important to take into consideration how public or private the environment, (dorm rooms versus library gathering spaces), the people featured (students versus administrators), how identifiable those individuals are and the intended use of the materials.
Regardless of the situation, Western asks that you take into careful consideration:
- respect for individual privacy
- your best professional judgment
- Western’s legal rights regarding photos, videos and audio
Public Spaces, Figures Material Uses
Generally, releases are not required to take a photograph or videotape of individuals in public spaces, as there is a minimal expectation of privacy in such spaces. However, the use of the materials may be limited if a release has not been obtained.
Examples of public spaces at Western are sporting events at Harrington Field, Commencement, Red Square, and even at times non‐sensitive invited events.
Images that feature campus sculpture as the subject of the photo rather than a background image should not be used for commercial purposes or business purposes on behalf of the university. Limitations with regard to specific sculptures are outlined in the artist agreements.
While some public figures, such as elected officials, celebrities, and prominent speakers have a less limited expectation of privacy than members of the general public, consent should still be obtained and intended usage should be discussed with guests to campus prior to taking photo or video.
It is important to use your best judgement when captioning or describing those depicted i.e. listing those photographed as members of a crowd of observers versus assuming they are participants in the event. Clarity of descriptions is particularly important when photographing demonstrations, protests or other sensitive events.
Permission, Releases and Opting Out of Photos/Video
It is best to err on the side of caution with regard to FERPA requirements and photography or videography. There are a number of options for obtaining agreement from individuals when taking a photograph or video. The best approach depends on the specific scenario, the context, the intended use of the images, footage or information and the associated risk.
- Prior to taking photos or video, announce to the group verbally that photos or videos will be taken, how they will be used and state clearly that participation is optional.
- Post large, legible signs at points of entry to the event or space indicating that photos or videos will be taken, how they will be used. The sign should clearly state that participation is optional.
- Obtain written or electronic consent using the Image/Quote Release form.
- In addition, you may create a ‘no photo/film’ seating area in the back or side of a room that will not be included in the shot or photos for those who wish to participate but do not want to appear on film or in photos.
Students and FERPA
Certain photos of students are considered “education records” under FERPA, and may not be shared publicly without student’s written consent. Consent is particularly important when:
- A photo prominently and recognizably features a single or small group of students rather than a crowd.
- The image or video shows students in an educational or academic environment.
- The image will be used as part of Western’s official business functions (on a program brochure, ad, webpage or banner).
It is particularly important to obtain written consent when photos or videos may be used to promote Western or one of Western’s programs, products or services. Liability risks are significantly higher for commercial use of photos or video. Photos or videos of public figures have an even greater liability risk when used for commercial purposes.
Classrooms and Students
Class recordings can trigger concerns about freedom of speech, academic expression, privacy rights, copyright issues and FERPA. Recordings or images must comply with Western’s policies. When recordings are made accessible only to the students and instructors in the class and administrators, students must be informed in advance that the class will be recorded. When photos or videos will be posted publicly or made available to individuals outside the class or university administration, students must be informed as such and areas of the classroom must be made available for students who do not wish to be shown in the video or photo. Per FERPA, students may not be required to agree to participate in recordings or photos, or agree to the public distribution of said images as a condition of enrollment in the class. Whether in or out of the classroom, when an image of a student(s) is readily identifiable, FERPA may apply. When in doubt, it is best to obtain permission before a photo or video is shared publicly.
In addition to following Western’s Social Media Guide, FERPA and the associated considerations apply to images or video used on social media. It is particularly important to protect confidential personal information on social media. Only share what you have been given explicit permission to post by law, policy and from the person(s) featured. Live media captured via social media –i.e. Facebook Live video, Snapchat or Instagram stories, still requires FERPA compliance. If you are interviewing someone via social media, we suggest you record your conversation regarding use and scope of the broadcast at the start of the recording, making it clear that participation is optional.
Use your best professional judgment when taking photo or video of a child or a group of children. It is imperative that we obtain written release from parents prior to photographing or taking video of children, especially if those images will be widely used or published. Photographing patients in Western’s health facilities triggers additional HIPPA confidentiality requirements. If a project necessitates photo or video in such context, the process should be conducted with prior organizational approval as it will require additional consent forms. If an event covers a sensitive topic that could trigger privacy concerns, Western recommends posting a sign and announcing that photos or video will be taken and noting areas of the event where attendees may participate without being photographed or recorded.
Copyright and Digital Photos
In addition to privacy issues it is important that individuals remain mindful of potential copyright issues that pertain to communication on behalf of the University. Typically, Western owns the copyright in photos and videos taken by Western employees as part of their employment duties. Payment to an independent photographer/videographer does not convey copyright rights to images or video unless Western obtains a written agreement from the photographer/videographer stating that Western will retain copyright as a part of the contract. Western’s use rights may be limited to those purposes specifically communicated during the written agreement at the time the photographer was hired. For this reason, it is important to have a written agreement with the contractor that states what ownership or use rights Western will have with respect to the photos or videos produced by the contractor and what rights, if any, the contractor retains. As digital photos and videos can be used repeatedly and for different purposes, it is important to document the nature and scope of releases or permissions at the time of the initial contract.
Release should be maintained for the life of the recording/image use plus 7 years. You may wish to include a time limit in promotion‐specific waivers to limit the required retention cycle. For example, if you plan to use a photo for an annual print project with a 2‐year circulation, and you note the project term on the release form, you would be required to retain the release for a total of 9 years. Please note, once the university’s digital archive system (MABEL) is live, we will have the option to archive releases digitally in conjunction with photos and may have options to set automatic retention/archive schedules.