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My mother has been diagnosed with moderate Alzheimer's and has several other health related issues. A new website from the nursing home in Ohio features her more than any other resident. The home has tried to evict her three times without success. I know she would never have consented to be pictured if she understood the eviction attempts. I was never contacted regarding her appearance, and I know if she were told she was being removed it would be very hurtful to her. The website is designed to market the home, are there steps I can take against the home without my mother being impacted. I chose Elder Law as the topic, but I also consider this either fraud or elder abuse.

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I'd check with the ombudsman for the home. Go to the state website and look up nursing home ombudsman for the ZIP code of the home - or go to www.ltcombudsman.org. This person is your mother's representative. He or she could lead you to some conclusions.

My opinion is that informed consent should be mandatory for this kind of exposure. Since your mother's diagnosis is Alzheimer's, only her representative should be able to give consent. Please let us know how this goes.
Carol
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I do not know the answer to this but, I certainly know what I would be doing about it!
we are all entitled to our privacy and this does not appear to have been taken into consideration re your Mother! quite disgraceful!
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Review the admissions contract. There could be a sentence within in that allows for "fair use" of residents images. Now you can as DPOA send them a notice that you no longer allow for this to happen. You also need to include in this that a notification is to be sent to any ad agency, PR firm, marketing group and to any & all photographers or others who have taken images.

One other problem will be that if mom is cute (& photogenic) is that the image will be sold for stock. Like the images on this site are probably stock images purchased for a set usage fee. Images of attractive elderly is very much a commodity. For photographers selling images for stock is done routinely and files downloaded to the list serves they belong to (like shutter stock, Getty). In theory there should be a model release on file for the person before images sold if the shot was done on private property (& property release too). This is why it's important that notifications be sent out.

Another issue is that if the image is on a website, is that anyone clever can lasso the image and use it. Cute mom in pretty robe can be in an ad in another state. You have to become Nancy Drew to shut this down.
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Igloo is right, you sign the publicity release during admittance. read the papers.
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Interesting, I received brochures from some homemaker agencies, and 2 of them used the same image! Was so hard to figure that out!
But seriously. You might not be able to confiscate all the materials already printed, but you could prevent further "use" of those images. It would be up to you to be the watchdog however, for any further use.....
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Likely Pam is right. Most of us aren't thinking of these issues when we place a loved one in a care facility but likely the language is there.

The larger the corporation is that owns the facility the more likely the images will be widely used. My community has good facilities, most of which are owned by religious non-profits that aren't large, but one or two are owned by large corporations. This topic has made me wonder about their contracts.

Sometimes we sign away rights without being aware. It's the nature of these endless terms and conditions. One would need a personal attorney to completely read and understand the implications of everything said so most of us don't take it all as seriously as we should - especially when under stress.

I'm not sure what can be done about the pictures now used, but perhaps future picture use can be forbidden. Good luck,
Carol
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It's so sad that everything a senior does, seems to need an attorney!
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Don't know if this would help, but apparently this type of thing is quite common as same happened to us. Dad lived at home and had end stage Alz. 3 weeks before his death last November we hired a home health agency/aide from Home Instead Senior Care to bathe him. The aide was excellent with him. Then we found out during her 3rd visit that during that visit she put him outside on the lanai and photographed him. This was the WORST time of his life and would NEVER have wanted to be photographed! The aide, NEVER asked mother's (who was in taking a nap at the time as she was recovering from a recent TIA) or my permission (I was there that day also) to do this. The only way I found out about it was when I overheard her while sitting at our dining room table telling her manager (who also happened to be there that day) about the great pics she'd just taken of dad. I interrupted their conversation to ask WHAT were talking about. And she told me...and then added that she'd just won a cruise for Caregiver of the Year (were the pics to be used as part of a slideshow during the cruise....???) I was totally shocked - AND livid - but I bit my tongue. After they left I told mom what had happened and SHE was livid also. The manager was to return the next day about something else and when he arrived I met him OUTSIDE and promptly FIRED his agency. He was defensive but knew he didn't have a leg to stand on and left. The top guy at the agency called and emailed me and was all apologies, etc. and I demanded the pics back (there were 2 taken, and they 'couldn't find' the second one). I told him they'd better NOT show up ANYWHERE in this entire universe or he'd be sued! As it is I've threatened him (am currently doing the paperwork) with a HIPAA violation. No one else should have to go through this. I share this with you to let you know you are NOT alone - apparently these elder care institutions have no respect for folks who cannot give informed consent and will use them for their own (advertising) ends. I WILL make sure this agency - Home Instead Senior Care - never does this again AND is cited for HIPAA violations.
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Just curious, if an image of someone is used without permission, what would be the grounds of the lawsuit? I realize out of common decency that one should get permission to use a photo. Yes, I would be upset if said photo isn't flattering or something we know our elder would not want published. Then there are people who love to have their photos taken, the more the merrier.

Let's extend this further.... could our friends, co-workers, and relatives sue us for using their photos on Facebook if we didn't get permission, or we sue them? I realize these photos aren't being used for *profit* in most cases.

I know in the business world, if someone took my photo and used it where it would damage my career, I could sue for loss business, but that would be tough to prove, unless I had cancelled contracts due to said assumption of the photo.

Every time we are in the outside world, doing our routine shopping or even visiting sights, someone somewhere has taken our photo with their cellphone or iPhone. Just food for thought.
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As a magazine publisher, I always get written permission if I am photographing people for publicity. It's the law. A release must be signed. Sometimes I will use the blurr on my software to blur out the face so it won't be recognized by anybody if it's someone in the background.
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Having been a professional videographer as well as a board member of our local public access TV station, the gray areas of both copyright and image usage can be a real headache.

If you are in a public place where an event (parade, protest, rally, etc., whether formal or informal) is occurring your consent to being photographed or filmed is implied. If you are entering a venue that is not free and open to the public, but where your picture may be taken---say at a concert or convention---there will normally be a sign posted somewhere or a written disclaimer apprising you that your entrance into the venue implies your consent to be photographed.

The gray area comes for public places where people should reasonably expect to not be harassed by paparazzi, such as parks, sidewalk cafes or just walking down the street. Photographers should seek permission and, if the image is to be publicized, have the subject sign a model release with a fee up front of at least $1. (The fee requirement and other stipulations may have changed since I last had to deal with such matters.)

Unless a contract has been signed that includes consent in the fine print, no one has a right to photograph rest home residents any more than they have a right to photograph you in your own home without your permission.

Another thing to consider, even if you don't have a problem with your mom being featured in marketing materials, is that her image is being used without compensation. Why should the care provider or a stock photo company make money off a family member, especially since you aren't getting any of THEIR services for free!
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Freqflyer- if image is being used to promote something that produces revenue, then you need a release to use it unless the image is taken at a public place &/or within a public event. So like if my local gvmt does a Easter egg roll at city park for free, anyone can shoot images at it and use at will. It's fair use. If your 15 yr old shows her tata's on Chartres st during Mardi Gras & it goes viral, it's fair use even though she's underage jail bait. As its public street, public free event. But if I pay to go to an event, like jazz fest at the Fairgrounds, I have an reasonable expectation of privacy. So a release is needed unless on the ticket or within the "contract of carriage" statement for the event. by buying the ticket or entering the event you allow for fair use. Most often there will be signage on this.

Noor75 - what happened to you is beyond the pale. Really follow up on this. home instead is franchised, I think, so there are deeper pockets to go after. Whatever you send, do it certified mail.

You know most contracts have a fair use statement in them. Like our sons school has fair use in the admissions contract. Most programs that get federal funding require some sort of notification of fair use. 1 of our sons h.s. classes has a dept of navy grant, so teacher sent a blanket email to all parents that images taken this school year were allowed unless parents responded back not to allow. Both of my moms NH & her IL had a fair use statement within the multi page contract. You can strike through this part too. Now make sure you get a copy of all the paperwork!
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In California they are very strict about pictures of residences. I sing with a small group that goes to care facilities and does gospel music concerts (free). We once asked about taking a picture of our group in one home and they said that we couldn't take pictures inside at all. (Our church wanted a few pictures or video to show what we did, so we've taken a few in an entry way or exterior. One place did allow us to take a picture with a resident who was a family member of one of our people.)
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As I am from Belgium in Europe, I don't know whether or not this is legal. Here, in any way it is not. And certainly not with someone who has Alzheimer, as they can not figure out what exactly is happening, for what purposes the pictures were taken, etc.. In any case, If it would happen to my mother (or father or partner) I would turn each stone upside down to see what I can do to prevent this and to have all this material destroyed. What is left of our privacy ?? Certainly when the pictures of your mother are circulating on a website, it is accessible to anyone and these pictures can be used for much other things than the website of the nursing home. And how will you know that ?? No, I think first a good talk with the management of the nursing home is imperative, and consulting an ombudsman or an other organisation defending people's interests or even a lawyer if necessary. I hope you can solve this matter without legal steps and lots of misery and difficulties. With warm regards and big hug.
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What exactly is the grievance?

Your mother, whom I imagine to be a pretty lady since the marketing people have selected her image as a feature, is pleased and excited that she appears on this website, yes?

You're concerned about:

1. The invasion of her privacy. What impact is this having on her life?
2. The irony that the company has chosen to portray as their model a resident whom they have on several occasions attempted to sling out. Well, that is indeed ironic. But, again, what impact is it having on your mother?
3. The company's failure to consult you, as your mother's competent representative, before including her image in their material. As several people have pointed out, you will need to check the terms and conditions of her admission before you can rely on this as the basis for a complaint.

So, all in all, I'm not quite sure where you want to go from here. Do you want the images removed? It's a website, it can be easily edited, you can pursue that if you think it worthwhile: but then you say that that would upset your mother, so why would you want to if no harm is coming to her from the use of her image?

If your mother is settled and happy in this place, and if in spite of earlier disagreements the company now seems to be committed to her long term care, what advantage to your mother is there in your taking up arms against the company? I understand and would share your feelings that the marketing team has played fast and loose with reality, here; but before you take it further weigh up what there is to gain on your mother's behalf. Of course you're free to voice an objection; just think through where it's going to lead before you do.

The question of fraud is interesting. The fraud would not be being perpetrated against your mother, but against potential new residents: here is an image of a happy resident we looked after earlier, when it's actually an image of a resident they tried to get rid of. It is a misrepresentation, to that extent. And? Whom is being defrauded of what material value? Does the website even explicitly identify her as a satisfied customer?

That just leaves the question of a) whether taking and publishing photographs of a person without her consent (seeing as she's not competent to give it) amounts to abuse; and b) if so, what redress is appropriate. Well. Then we're back to: what redress, for what harm done to your mother, have you in mind?
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You can insist the nursing home give your mother a percentage of any royalties the nursing home makes from the use of your other's photo.
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