Filming legal issue

[David W. Richardson]

Oral release, I like that How about if the dancer winks at you and you keep it in the shot? LOL

Can that be considered a release?

I doubt it. Just because she doesn't mind you videotaping her, that doesn't mean she's approving your use of her image in a publicly-displayed video. I doubt any court would consider a wink to be a waiving of her rights.

 

[JonathanLB]

I doubt it. Just because she doesn't mind you videotaping her, that doesn't mean she's approving your use of her image in a publicly-displayed video. I doubt any court would consider a wink to be a waiving of her rights.

I think that was a joke... LOL. It's something called sarcasm

 

[Pipe Dream]

From what I understand, even if something is in public view it doesn't necessarily mean it's safe to shoot it.

It really depends on what you are using it for in the end to. If it is to be used to make you ant kind of money, you probably need a release.

Let's say you got a McDonald's sign on a street scene. If the piece is a not for profit educational or news documentary type video. You are covered by the 1st Amendment, but if you are doing a video on dieting to sell, you better have a release from McDonald's to use their logo, as well as a release from the particular property owner where you are taping. Otherwise you need to find a McDowell's (A la Coming to America).

Release's are required for property, people, performances, music, voice, and if you are shooting art pieces like architecture, sculpture, and paintings. Pretty much anything IF YOU ARE GOING TO MAKE MONEY FROM THE VIDEO YOU LOOSE 1st AMENDMENT PROTECTION!

Gray ares I have questions about are 'stringers' - freelance shooter's that just sell to a news org, and arent really press themselves; are they afforded 1st amendment protections?

and things like public art - I would assume this may depend on how the piece was commissioned (i.e. the contract with the municipality).

As for architecture I think most of that you are pretty safe on shooting, as the cases i have heard of involve the building being incorporated into a trademarked logo. I think there are some house in San Francisco near the Golden Gate Bridge that are used by some company, so you have to now be careful of the background from a certain angle. The other was a building in chicago that had a thing on top that was the company's trademark. They actually have scout crews go determine what is ok to shoot for movie locations etc. for this kind of crap.

As for people, if you can determine someone's identity from the video you have recorded. I would get a release. That goes for body parts as well (moles ant tattoos can id someone).

It just really depends on what you want to do with the footage, and what kind of money if any are you going to make with it?

You also have to worry about ambient audio, is the jukebox playing in the background with a popular song.

It is really sick how far down lawyers can take things, I ran across a little guide book for some of the laws. I will try and post a link if I can find it.

Scott Hunt

 

[Pipe Dream]

Here's a pretty good quickie:

http://www.krages.com/ThePhotographersRight.pdf

Here's some more intensive reading:

http://www.centerforsocialmedia.org/resources/publications/fair_use_frequently_asked_questions/

Enjoy

 

[Chamber005]

The whole release thing is really silly. Unless someone is actually talking on camera or is the primary focus of a shot (which may be the case in the belly dancing thing), you just fill out some phony releases and tell the distributor "Yeah, that's that person in the background." They don't care, the person who was filmed would have an incredibly difficult time suing them (not you -- the DISTRIBUTOR at that point would have to sue you only AFTER they lost the case to the person; and I would be hard pressed to believe that any judge is going to award a major distributor a suit against an individual if the individual states that they received the release from that person and that's what they signed their name as, yadda, yadda).

No one cares about this sort of thing.

Music, on the other hand, is a totally different animal. I think it entirely bizarre that any monies need to be paid upfront to use any music whatsoever. There should be a general law that states ASCAP, BMI or whomever should receive X% of a movie's gross profits because X number of songs were used. The way things are set up now it makes it nearly impossible for independent filmmakers to work with licensed music, which, as someone else stated previously, does nothing but hurt all the artists involved.

FYI:

The law and photographing people in public places

Eric Friedemann , Dec 11, 2001; 04:37 p.m.

In "Legal Matters?," below, Stephen wondered aloud about the right to photograph people in public places. Without canvassing the law of the fifty U.S. states, let's look at New York law. This is an instructive example, as New York has a hyperactive body of civil rights (including privacy) law.

In Arrington v New York Times Co., 434 N.E.2d 1319 (N.Y. 1982)[Cert. denied by the U.S. Supreme Court at 459 U.S. 1146 (1983)], a young black man in a business suit was photographed while walking along a Manhattan street without his consent and the image was used on the cover of The New York Times Magazine in connection with an article entitled "The Black Middle Class: Making It". The problem was that the author of the article opined that the black middle class was removing themselves from the problems of poor blacks. Arrington took offense to his photograph being used as an illustration of this opinion.

The New York Court of Appeals (New York State's Supreme Court) stated that the photograph of the plaintiff was not a use "for the purposes of trade or advertising within the prohibition of the (New York Civil Rights) statute," even though it was undisputed that The Times Magazine was a commercial venture paid for by advertising. The court refused to permit Arrington to "vindicate a personal predelection for greater privacy," concluding that that "may be part of the price every person must be prepared to pay for a society in which information and opinion flow freely."
As such, in New York, one of America's most liberal venues, a person may be photographed in public without giving consent. Further, that person's image may be published or displayed without that person's consent, so long as the image does not appear in an advertisement.

 

[calchip]

Let's say you got a McDonald's sign on a street scene. If the piece is a not for profit educational or news documentary type video. You are covered by the 1st Amendment, but if you are doing a video on dieting to sell, you better have a release from McDonald's to use their logo, as well as a release from the particular property owner where you are taping. Otherwise you need to find a McDowell's (A la Coming to America).

That's a particularly interesting example because it brought to light Morgan Spurlock's excellent documentary "Super Size Me" which was anything but complimentary to McDonalds. There's footage of him repeatedly calling McDonalds corporate relations for comments on his film and they won't even return his calls.

I'm wondering if the distributor just took a chance that McDonalds wouldn't sue, realizing that if they did, it would be more publicity for the film, or if they felt they had strong legal footing. It's definintely not a film I'd want to take on without some big legal guns backing me (and someone to pay for said guns.)

 

[Chamber005]

That's a particularly interesting example because it brought to light Morgan Spurlock's excellent documentary "Super Size Me" which was anything but complimentary to McDonalds. There's footage of him repeatedly calling McDonalds corporate relations for comments on his film and they won't even return his calls.

I'm wondering if the distributor just took a chance that McDonalds wouldn't sue, realizing that if they did, it would be more publicity for the film, or if they felt they had strong legal footing. It's definintely not a film I'd want to take on without some big legal guns backing me (and someone to pay for said guns.)

But aren't documentaries different? Aren't they covered under the same blanket as is news coverage? I think the line is blurry and shouldn't be there in the first place. I mean, if you're showing people drinking a Coke and aren't having them then go out and murder entire villages, I can't imagine a distributor needing that to be cleared. I really think this whole thing only applies when you're doing potential harm to the brand.

 

[David W. Richardson]

Why do people take serious risks by seeking legal advice from virtual strangers on a public forum?

Do you consult forum posters to decide if that crushing pain in your chest is indigestion or a massive heart attack?

Ask a professional. Anything else is just taking risks.

 

[Chamber005]

Why do people take serious risks by seeking legal advice from virtual strangers on a public forum?

Do you consult forum posters to decide if that crushing pain in your chest is indigestion or a massive heart attack?

Ask a professional. Anything else is just taking risks.

To your point, I think it's the reason WebMD exists. Most people don't want to spend hundreds of dollars for what (could be) very basic information. Most people find it pertinent to first ask other professionals (be them medical or otherwise) online before going out and spending money. If the consensus (medical or otherwise) comes back as "Go see your doctor immediately" (severe chest pains) or "You absolutely have to talk with a lawyer about that" (starting an LLC), then sometimes people will follow that advice.

As far as legal advice goes, most any legal documentation can be found online. And, since this is a forum that has professionals and non-professionals (the professionals being pretty clearly recognizable), I think it makes sense to ask other professionals about the legalities of filmmaking. Heck, I've never had a DUI, but I had a friend who had one, so I was able to give another friend of mine legal advice when her DUI came up and my advice was all she needed when she went into court.

Legal advice is no different than any other kind of advice. I'm not a mechanic, but I can tell you how to change your oil.

Usually people understand the law and only come on forums as a reassurance that breaking said law isn't going to really matter in the long run.

If some girl walks through your background while you're shooting and you don't get a release from her can you still put that image in your film and still secure distribution? Of course. That's common sense, but since the law is vague to protect people from outright invasions of privacy, people want that reassurance from other professionals that it's okay to bend the "law".

 

[Steve House]

...
Usually people understand the law and only come on forums as a reassurance that breaking said law isn't going to really matter in the long run.

If some girl walks through your background while you're shooting and you don't get a release from her can you still put that image in your film and still secure distribution? Of course. That's common sense, but since the law is vague to protect people from outright invasions of privacy, people want that reassurance from other professionals that it's okay to bend the "law".

I disagree. If you can't field a successful endeavor while maintaining strict compliance with the letter, the spirit, and the intent of the law, you have lost any moral authority to claim any benefits from your work. Most of the laws such as the right to privacy are designed to protect people's legitimate personal rights from interference by others. You have no right to achieve success by trampling on those rights of others, even if you manage to find a loophole that lets you get away with it. You should not benefit from the stupidity of a legislature that left the loophole in place. We need to function on a higher human plane, going beyond "if I can manipulate the situation so the law allows it or if I can get away with it, it's okay."

 

[Ted Spencer]

It seems to me that incidental inclusion of people in film and TV shoots must be legal without a release, simply on the basis of my numerous personal experiences of being one of those people. There is a great deal of film shooting in my neighborhood in NYC (West 72nd St area), and I and others are constantly walking through the background in these shots while they're filming. I must have seen this happen at least a hundred times, and no one - no one - ever asked me, or anyone else to the best of my knowledge, to sign a release form. Their only concern was gawkers - someone visible in the shot who was just standing there, obviously staring at the set, which would spoil the realism of the shot. Walk through in the background, no problem. And no release either. Ever...

 

[Chamber005]

I disagree. If you can't field a successful endeavor while maintaining strict compliance with the letter, the spirit, and the intent of the law, you have lost any moral authority to claim any benefits from your work. Most of the laws such as the right to privacy are designed to protect people's legitimate personal rights from interference by others. You have no right to achieve success by trampling on those rights of others, even if you manage to find a loophole that lets you get away with it. You should not benefit from the stupidity of a legislature that left the loophole in place. We need to function on a higher human plane, going beyond "if I can manipulate the situation so the law allows it or if I can get away with it, it's okay."

LOL Come on, man, really? You park in a no parking zone while you hop out of your car quickly to nab a shot with your camera and that should lose you "any moral authority to claim any benefits from your work". That was just a bizarre sentiment. As the poster mentioned after you, the law in question regarding getting a signed release from every single person who might ever pass in front of your camera while shooting is just ludicrous and has NOTHING to do with the "spirit" of the law which is in place to protect your privacy, not to insure that never another film should be possible to shoot outdoors.

 

[Steve House]

LOL Come on, man, really? You park in a no parking zone while you hop out of your car quickly to nab a shot with your camera and that should lose you "any moral authority to claim any benefits from your work". That was just a bizarre sentiment. ....

Actually it's more akin to parking in a handicapped zone when you're not handicapped and no, I don't do that, no matter how great the shot will be that I'm going to miss. Your rights end where other's rights begin. If you find it impossible to make your movies without dotting the "i"s and crossing the "t"s maybe you should find a different line of work, or make different styles of movies.

 

[Chamber005]

Actually it's more akin to parking in a handicapped zone when you're not handicapped and no, I don't do that, no matter how great the shot will be that I'm going to miss. Your rights end where other's rights begin. If you find it impossible to make your movies without dotting the "i"s and crossing the "t"s maybe you should find a different line of work, or make different styles of movies.

You would not (and not because of getting a ticket but because of your own personal moral compass) park briefly in a handicapped spot if it was the only parking spot and you needed to park and get a specific shot?

I don't believe that makes you morally in a better position to make narrative film, that simply means you're making different choices than would other narrative filmmakers.

I think quite a few directors (and maybe even some whose work you respect) would absolutely park their car in that handicapped spot for two minutes if it meant getting a good shot.

Dotting "i"s and crossing "t"s does not make you morally better or worse, it simply means that you are adhereing to a letter of a law, be that law morally important or not. One person's insistence on adhereing to every single law "to the letter" (that means of course never going a single mile over the speed limit to make sure you make it to your next shot's destination on time, mind you) is just a choice they're making. It doesn't make them more moral, it's just a decision, it's legality not morally subjective.

I'm never in a hurry to be anywhere and almost never speed for that reason, but if I ever needed to get a specific shot and going 50 in a 45 was the difference between getting it or not, you better believe it's pedal to the metal. Doesn't mean I'm morally loose, just means in that moment one thing is more important than the other. E.g. self-defense is not murder though you just committed the exact same act.

My position. Which is as entirely valid as is yours, neither being of any "higher moral ground", just different.

 

[polfilmblog]

"If you can't field a successful endeavor while maintaining strict compliance with the letter, the spirit, and the intent of the law, you have lost any moral authority to claim any benefits from your work. Most of the laws such as the right to privacy are designed to protect people's legitimate personal rights from interference by others. You have no right to achieve success by trampling on those rights of others, even if you manage to find a loophole that lets you get away with it."

We're talking about filming people in public. There is no alleged "right to privacy" if you're in public. You can be photographed, and seen, by anyone.

This bogus "moral" spin is nonsensical. We're not talking about spying into people's private homes.

A release should not be necessary if you're captured incidentally by someone's camera, although I'm sure the ever so moral lawyers of the world have made quite a chunk of change off of frivolous lawsuits against filmmakers and documentarians.

Give me a break on the moral indignation about, essentially, filming people in public as thousands of city owned traffic cameras do constantly. Where's your moral outrage on that issue?

 

[PaulWM]

Watch the news on TV tonight and you will probably see people getting off a train, plane or attending some football match or baseball game or something. Probably none of these people ever gave permission (or were asked for it) to appear on TV. Laws are surely tempered by common sense too.

Sometimes when you try to do the right thing when no-one else bothers you suffer. E.g. it took me four years and a lot of work to get permission to use a commercial poster (I was a fan of the movie), in a purely amateur film that I made ages ago. I had to type reams of explanation letters to different people in the film company to do this. Meanwhile friends shots dozens of items like this in their own films and never got bogged down in admin or consultation. Right or wrong, to this day (decades later) no one got into trouble.

I just saw a shot of a US senator on TV being interviewed in a library. There were lots of books just behind him with titles clearly on show. Do you think that the programme maker wrote to each of the publishing companies to get the correct permission?

Regards

 

[Steve House]

"If you can't field a successful endeavor while maintaining strict compliance with the letter, the spirit, and the intent of the law, you have lost any moral authority to claim any benefits from your work. Most of the laws such as the right to privacy are designed to protect people's legitimate personal rights from interference by others. You have no right to achieve success by trampling on those rights of others, even if you manage to find a loophole that lets you get away with it."

We're talking about filming people in public. There is no alleged "right to privacy" if you're in public. You can be photographed, and seen, by anyone.

This bogus "moral" spin is nonsensical. We're not talking about spying into people's private homes.

A release should not be necessary if you're captured incidentally by someone's camera, although I'm sure the ever so moral lawyers of the world have made quite a chunk of change off of frivolous lawsuits against filmmakers and documentarians.

Give me a break on the moral indignation about, essentially, filming people in public as thousands of city owned traffic cameras do constantly. Where's your moral outrage on that issue?

Photographing people in public per se is not the issue. Filming strangers as part of a commercial endeavor, using their images in your hopefully for-profit product without asking for releases because you're either too lazy to get their permission, don't want to bother with obtaining the necessary permits and permissions to have secure locations and are too cheap to pay background extras or too lazy to recruit volunteer background people, or you know that you'll be denied if you ask so you don't bother and hope they don't find out, is more to the point. IMHO, it's a sleazy way to operate.

PaulWM, news gathering is a totally different kettle of fish from entertainment. Though I would say the current fad for blurring EVERY trademark, title, label, and person visible on screen seems to be getting way out of hand and silly, bordering on the ridiculous. Some segments in "Cops" have got so much stuff in the shot around the officers and the perps blurred out that they're starting to look like a 1930's movie dream sequence.

The fact that you're a grass-roots filmmaker doesn't make you special and entitled to special exemptions. The fact that it's *your* film, and not Sony's or Fox's, doesn't mean the legalities of how it gets made are any different. Being someone other than a major studio or network doesn't cut you any slack. If Sony needs to get a release from their background characters for their latest theatrical epic, you need to get one for your festival entry submission.

 

[Ted Spencer]

Watch the news on TV tonight and you will probably see people getting off a train, plane or attending some football match or baseball game or something.

Speaking of sports events, how about the fans being on TV? Does buying a ticket to a game constitute a signed release? I don't think so...

The idea of getting a release from every bystander who happens to walk through a shot on a TV or movie set in a public place would be so nightmarishly difficult that it only makes sense that laws allow it to happen without one.

And the point about TV news footage is on the mark too. Imagine a 'signed release' scenario in Times Square on New Year's Eve...

I think we need to let this particular aspect of the case rest...

 

[CB_Radio]

Watch the news on TV tonight and you will probably see people getting off a train, plane or attending some football match or baseball game or something. Probably none of these people ever gave permission (or were asked for it) to appear on TV.

And the point about TV news footage is on the mark too.

The point about TV news footage couldn't be further off the mark and proves nothing.

First off, News and narrative filmmaking are two completely different scenarios. You can't assume that because a news program can do it that a narrative film can do it. Apples and oranges.

Secondly, watch any news program about obesity and you'll see a lot of overweight people getting off a train, plane or attending some football match and you won't see a SINGLE one of their faces. Why? Because they haven't signed releases and the news stations don't want to be sued.

 

[Chamber005]

The point about TV news footage couldn't be further off the mark and proves nothing.

First off, News and narrative filmmaking are two completely different scenarios. You can't assume that because a news program can do it that a narrative film can do it. Apples and oranges.

Secondly, watch any news program about obesity and you'll see a lot of overweight people getting off a train, plane or attending some football match and you won't see a SINGLE one of their faces. Why? Because they haven't signed releases and the news stations don't want to be sued.

The "common sense" law is pretty clear on this matter as you can see by watching any studio movie (or indie flick) that has ever been shot in any large city ever -- if your primary storytelling focal point is regarding a person who is the focal point of the shot, you need a release. If it is by HAPPENSTANCE that someone walks through the back of the frame and does not pertain in any way shape form or fashion to the story or the purpose of what's happening in the plot, there's no legal standing for the person who was photographed outside in public. If you're OUTSIDE in public and someone walks by your frame but is not the SUBJECT of the shot, these release laws have no merit. Show me any case in history that says different -- a case where someone sued a filmmaker for this and actually won.