Hidden Cam Reactions and Releases...

IjabaFilms

IjabaFilms

Well-known member
Alright, I was searching on here for something similar to this but couldn't find anything so I'll ask. It may be pretty obvious too but since I see this so much, I want to ask anyway.

I'm doing a documentary in April on my best friend who is Albino. And the doc is about her life as an Albino. I was wanting to hide my camera and have us go for a walk in the mall or in some public place so I can get on camera how people stare, laugh, or say jacked up stuff to her all the time.

I'm wondering if this would of course be usable footage without releases from these folks. I'm thinking the obvious answer is no but I've seen some docs and shows where folks have done this and I've always wondered how they got these people to sign releases for something that made them look like sphincters....

Any Thoughts?

Thanks!
 
If you can get a location release - and publically post a notice (eg: at all enterances) that you will be filming in the area - you should have a pretty good start.

- Mikko
 
IjabaFilms said:
and have us go for a walk in the mall or in some public place
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A mall is private property, not a public place.

I'm wondering if this would of course be usable footage without releases from these folks. I'm thinking the obvious answer is no
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Read the stickies and read Estebeverde's posts on journalism/doc shooters' rights. If it's news for a news organization you'll have a lot more leeway, but if you're shooting a recognizable individual on private property you're absolutely going to need a release.

Every criminal you've ever seen on "Cops" has signed a release. If they didn't sign the release they got their faces fuzzed.

All those idiots in "Borat"? They all signed releases. Even then some of them tried to sue because they did, indeed, come across "looking like sphincters."
 
mikkowilson said:
If you can get a location release - and publically post a notice (eg: at all enterances) that you will be filming in the area - you should have a pretty good start.

- Mikko
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As I've said before, I think you're on shaky ground legally with the idea that posting a notice will give you the right to use people's faces and voices without a signed release. People may not see the notice. They may be illiterate, or not speak English. Especially in a situation where you intend to use footage of them that is clearly unflattering, I think you're leaving yourself wide open to lawsuit if you rely on the "posted notice".

Get releases. Have someone follow behind you and approach the people after they've passed your camera and made their comments -- and ask at that time for them to sign a release. That's the only SURE way to protect yourself. Anything else is risky.
 
A very important issue you may not be aware of.

Using a hidden camera for this project, you are not only recording video but audio. There are serious penalties in many states for recording people's audio without their prior consent.

Many times there needs to be two party consent. Not in every state, but most. This means all persons whose voice is being recorded are aware of the recording and have agreed to be recorded prior to recording. Not after.

You are treading on very dangerous ground going onto private property using a hidden camera.

The issue about audio is not whether the audio is broadcast. The issue is the simple act of recording the audio, whether it is broadcast or not.

Wiretap laws are very strict in today's world.

You need to check with a lawyer who will give you correct information about what you can and can't do.

A message board like this is not the place to find the definative answer.

Laws about audio are even more strict than those covering video.

Be very careful.
 
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Thanks everyone. That would be a risky undertaking. I think I'll put that idea out the window and focus on other things for the doc.

I thought there might have been some "secret" I didn't know about. hahaha I just see folks looking like jerks on TV and can't believe they signed a release. :)
 
Lensmith said:
A very important issue you may not be aware of.

Using a hidden camera for this project, you are not only recording video but audio. There are serious penalties in many states for recording people's audio without their prior consent.

Many times there needs to be two party consent. Not in every state, but most. This means all persons whose voice is being recorded are aware of the recording and have agreed to be recorded prior to recording. Not after.
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While you are right that recording audio has serious implications, and should be researched heavily beforehand, most states are actually one-party states, not two party ones.

Here's a good site to use as a reference. I haven't checked their sources for every state, but the Missouri statutes they cite are real:

http://www.rcfp.org/taping/

If you are in a one-party consent state, and it works for your doc, you could probably blur out the faces of everyone involved and just sub-title the audio, as long as there aren't any really distinct voices included. Releases are still better, of course, but if someone isn't identifiable, they'd have a hard time suing you for anything.
 
TwistedLincoln said:
If you are in a one-party consent state, and it works for your doc, you could probably blur out the faces of everyone involved and just sub-title the audio, as long as there aren't any really distinct voices included. Releases are still better, of course, but if someone isn't identifiable, they'd have a hard time suing you for anything.
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Again, an important issue is missed.

The breaking of the law happens at the time of recording.

Not IF it is broadcast.

You will have an easier time in a very public place skirting the legal issue. However going into any place of business or area not publicly owned means you are playing with fire.

Many people make this basic mistake and more and more are finding out the hard way they shouldn't have done it in the first place.
 
Lensmith said:
Again, an important issue is missed.

The breaking of the law happens at the time of recording.

Not IF it is broadcast.
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Well that's what I was saying -- if you're in a one-party consent state, then you're not breaking the law by recording your conversation with someone else, but if you are in a two party consent state you are.

I only mentioned the blurring of people's faces because that's a different issue -- the commercial use of someone's likeness without their permission, which is a civil matter, not a criminal one.

As for being in a privately held location, I can see how that could cause problems if the location is recognizable in your video, and you are portraying them in a bad light somehow. But getting permission from the owners or the establishment would probably cover that angle.
 
TwistedLincoln said:
Well that's what I was saying -- if you're in a one-party consent state, then you're not breaking the law by recording your conversation with someone else, but if you are in a two party consent state you are.

I only mentioned the blurring of people's faces because that's a different issue -- the commercial use of someone's likeness without their permission, which is a civil matter, not a criminal one.

As for being in a privately held location, I can see how that could cause problems if the location is recognizable in your video, and you are portraying them in a bad light somehow. But getting permission from the owners or the establishment would probably cover that angle.
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Just because the owner of a location gives you permission, does not allow you to step on the rights of others.

The owner of a location can not, under any circumstances, give you the right to secretly record audio of people who come into his location.

Those people have an understood expectation of privacy. Especially when it comes to their voice and image.

My posts have always been directed toward the recording of audio. The image is secondary since the laws covering audio recording are MUCH stronger and cover a larger area of concern.

It is a very common mistake for people new in the business to assume that video and audio recording laws are equal.

They are not.

Since 9/11 the laws covering who can and can't record audio have been getting tougher and tougher. I'm not just talking about government abilities to record audio secretly. I'm talking about ALL individuals who want to record audio secretly. In fact, it's easier for the government to do it than private individuals.

Being in a one party consent state does not somehow make it a free for all to record secret audio. There are lots of federal laws about recording audio that supersede state laws.

You won't be getting sued in a state civil court. You'll be in front of a federal judge facing much higher penalties and legal bills.
 
Ok, I see your point now. You do suggest an important issue -- that Federal and state wiretapping laws (which I referenced) may be different than those that cover simply recoding conversations out in the open (ie not being transmitted in any way over wires, etc). I haven't been able to find out much about that so far in my research.

The real issue, I think comes down to the "anyone can be sued for anything at any time." I was mostly arguing the criminal recording issue, which I think is pretty lenient. But people can sue you in civil court for just about anything (with or without cause), so you're right that it's probably best not to provoke an incident.

The big problem about worrying too much about lawsuits is that you'd really never be able to make any kind of truthful documentary if you always operated in that fashion. Because saying anything derogatory about someone or some group in your doc, even if totally true and provable can provoke them to sue you. I'm sure plenty of news organizations that did undercover recordings have been frivolously sued, and simply won because they had the money to defend themselves, which most of us do not.
 
Of course, the incentive to sue typically gets stronger when the violating party has a deep pocket.

Not sure whether a documentary maker would be viewed as such.
 
TwistedLincoln said:
Ok, I see your point now. You do suggest an important issue -- that Federal and state wiretapping laws (which I referenced) may be different than those that cover simply recoding conversations out in the open (ie not being transmitted in any way over wires, etc). I haven't been able to find out much about that so far in my research.

The real issue, I think comes down to the "anyone can be sued for anything at any time." I was mostly arguing the criminal recording issue, which I think is pretty lenient. But people can sue you in civil court for just about anything (with or without cause), so you're right that it's probably best not to provoke an incident.

The big problem about worrying too much about lawsuits is that you'd really never be able to make any kind of truthful documentary if you always operated in that fashion. Because saying anything derogatory about someone or some group in your doc, even if totally true and provable can provoke them to sue you. I'm sure plenty of news organizations that did undercover recordings have been frivolously sued, and simply won because they had the money to defend themselves, which most of us do not.
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I don't think there's anything wrong with YOU saying something derogatory (in a documentary) about a person or group (as long as it's true). I don't think there's anything wrong with getting OTHERS to say derogatory things on-camera about a person or group, as long as they're aware they are being recorded and have signed a release of some sort.

The problem comes when you record someone secretly -- they don't know they're being recorded until after the fact. That's where you leave yourself vulnerable to lawsuits. It's thin ice, not to be stepped upon carelessly.
 
I really don't know anything about this. Say that if he and Albino were shooting footage with lav mics on that are not highly visible. If the two of them are walking in a Public place, recording their conversation and another person walks past and makes a comment that is picked up during their conversation. If the features of the person walking past is blured out could you still leave the audio in? What if you also put a effect on that persons voice so that it is not noticeable from the natural tone, could you use it then without having to have a release?
Just a couple thing that poped up when I was thinking about that situation.
 
Waivers

Waivers

Contact a lawyer in your state. My experience is that anything short of that is a waste of time. Are you really going to make this decision without proper legal counsel?
 
interesting points ! I thought face blurring and respoken audio covers most issues.
but then I am in Europe and not the US of A where I would be more careful about filming with hidden cam!
 
I always shoot first and get permission after the fact. It's the only way to get real reactions. If your a good sales person, you'll always get a yes. I have only had one person refuse (in 20 years!) and it's because they were wanted.
Probalby a third of those said no at first. Talking strangers into signing a release is awesome people skills excersise.
 
If you shoot with a mass release poster, you still need an express, signed release for anyone who speaks on-camera.

As has been stated, don't shoot on private property without first securing permission to do so. Aside from being asked to leave, you could be charged with criminal trespass - among other offenses.

e
 
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