Privacy Rights

[ESTEBEVERDE]

DISCLAIMER:

Legal Information Is Not Legal Advice

This thread's sole purpose it to discuss information and experiences in regards to privacy law and is for informal purposes only and is no way, shape, form, or fashion intended to give legal advice. No information contained herein should be considered legal advice under any circumstances.

"Legal information" is not the same as "legal advice" -- the application of law to an individual's specific circumstances. If you have the need for legal advice it is recommend you consult a duly qualified attorney if you want professional assurance that any information contained herein, and your interpretation of it, is appropriate to your particular situation.






When Filming News and Documentaries, what are the requirements for releases?

Do you need them for news?

Do you need them for Docs?

Do you need them for people in the crowds?

Do you need them to film a building?


Please post your opinions with supporting references to the pertinent law.




Here are some great resources to give you a better understanding of the current state of the Law in the United States:

[SIZE=-1]The Pocket Lawyer for Filmmakers: A Legal Toolkit for Independent Producers: Books: Thomas A. Crowell by Thomas A. Crowell.
[/SIZE][SIZE=-1]Clearance and Copyright: Everything the Independent Filmmaker Needs to Know: Books: Michael C. Donaldson by Michael C. Donaldson.[/SIZE]


.

 

[Mattykins]

Yes, to all but the news one.

News is a thing unto its own. They have a lot more leeway with permission. But basically if someone or something is recognizable on film, you need a release.

 

[ESTEBEVERDE]

I absolutely disagree. You do not need to have a release for incidental use in docs when your subjects are in public places or can easily be photographed in public places.

And under certain circumstances you don't need it even for the subject of the documentary.

Please provide the pertinent laws that you assert curtail our right to free speech.

Please back up your claim.

 

[Barry_Green]

Estebeverde, you are once again trying to promote what may amount to practicing law without a license over the internet. I understand that you're passionate about this subject, but unless you can back up your claims with a law license, I'm afraid you're really not in a position to be advising people about their legal obligations.

 

[Mattykins]

Alright, well, you know something I don't then.

Every film fest, competition, every video anything that is viewed by anybody I need a release for. Granted it can be one given on tape, but you need one none-the-less.

And this comes from working in television, talking to hollywood producers, and independent documentarians that have their work screened nationally.

I personally don't agree that I need to back up my claim. Look at ANY video submission form. That paperwork they ask for should be enough of a claim.

 

[ESTEBEVERDE]

Estebeverde, you are once again trying to promote what may amount to practicing law without a license over the internet. I understand that you're passionate about this subject, but unless you can back up your claims with a law license, I'm afraid you're really not in a position to be advising people about their legal obligations.

Hello Barry.

Thanks so much for your post. I absolutely understand where you are coming from and I am not in any way practicing law on the internet let alone the unlicensed practicing of law (which is actually a crime in some jurisdictions.) I am not giving legal advice (the application of law to an individual's specific circumstances), but only starting a thread where general discussion about the law can take place.

I won't say one way or the other I have a law license or not as it is immaterial since I am not representing anyone and either way it is problematic at best.

I will say that each and every person has an individual responsibility to themselves to be familiar with the law to what ever degree they are personally comfortable and that they should seek qualified legal council anytime they feel then need advice or guidance and that I am in no way shape form or fashion in the business of giving such advice.

For discussions sake, I simply posed questions and asked for information with supporting evidence.

But, I will add a disclaimer to my original post as it seems prudent and a transparent way to do things.

Thanks so much again and I most definitely respect both your personal and professional opinions.

 

[ESTEBEVERDE]

Alright, well, you know something I don't then.

Every film fest, competition, every video anything that is viewed by anybody I need a release for. Granted it can be one given on tape, but you need one none-the-less.

And this comes from working in television, talking to hollywood producers, and independent documentarians that have their work screened nationally.

I personally don't agree that I need to back up my claim. Look at ANY video submission form. That paperwork they ask for should be enough of a claim.

I appreciate you points and your post.

But, this is only anecdotal information and does not provide anything to back up a legal requirement for releases.

 

[moonlitnite]

Hi Estebeverde,

Please forgive me for saying something you probably already know, but most of us here don't post questions requiring the responder to "back up their opinion with supporting references to the pertinent law." And when someone is nice enough to respond, rather than immediately discounting the feedback "I absolutely disagree... Please back up your claim.", you're more likely to engage in a win-win dialog when you aren't posing what appear to be loaded questions.

We're all here to learn from one another. How about if you share with us your references and cites? Seems this might help get the tone of this thread back on a positive perspective. Then I'd be happy to look through some of my video magazine legal columns on these issues.

Warm Regards, Michael

 

[Steve House]

I absolutely disagree. You do not need to have a release for incidental use in docs when your subjects are in public places or can easily be photographed in public places.

And under certain circumstances you don't need it even for the subject of the documentary.

Please provide the pertinent laws that you assert curtail our right to free speech.

Please back up your claim.

You are setting up up a situation where only an attorney with access to a law library and who has the time and resources available for the research could possibly answer you. Trying to win an argument by saying "This is my assertion, prove me wrong!" when you know few if any would have the resources to do that under the conditions you impose (citing specific statutes and case law, in the case) is hardly a way to hold a meanigful amd informative dialog.

The right to free speech recognises the fact that you have the right to state your ideas without government interference, a right that transcends any laws or govenrment. And I personally believe unless it protects your right to be offensive and obscene and outrageous and radical and run counter to accepted social norms it's meaningless. But it does NOT trump the rights of other individuals to control their own property and person nor does it limit their right to restrict your ability to co-opt their personal likenesses for your own ends. It is not a violation of your right to free speech for your neighbor to say "you do not have the right to use my picture without permission" and to enlist the aid of the power of the government to enforce his rights against you if you do not respect his wishes. It is not a matter of government restircting your right to think as you will and to publish your thoughts - it is the government forcing you to behave with respect to your neighbor and placing his rights as equal to yours. Your right to free expression ends when your fist touches my nose. And the First Amendment of the Constitution does not prohibit the government from aiding your neighbor in enforcing his rights.

 

[ESTEBEVERDE]

Hi Estebeverde,

Please forgive me for saying something you probably already know, but most of us here don't post questions requiring the responder to "back up their opinion with supporting references to the pertinent law." And when someone is nice enough to respond, rather than immediately discounting the feedback "I absolutely disagree... Please back up your claim.", you're more likely to engage in a win-win dialog when you aren't posing what appear to be loaded questions.

We're all here to learn from one another. How about if you share with us your references and cites? Seems this might help get the tone of this thread back on a positive perspective. Then I'd be happy to look through some of my video magazine legal columns on these issues.

Warm Regards, Michael

Hello Michael~

Thanks so much for your excellent and insightful reply.

When asking for the references to the pertinent areas of the law I was and am not trying to be glib nor to be goading one into a great debate.

I am asking in all sincerity.


As to my reference and site, please see:

"United States Constitution

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. "


As you know the constitution is the highest law in the land and all other laws must absolutely conform to it.

There are no exceptions.


I think is most probably the best place for us to start.

Looking forward to any and all information we can all amicably, logically, and accurately discuss here.

All the Best.

~Estebe

 

[ESTEBEVERDE]

You are setting up up a situation where only an attorney with access to a law library and who has the time and resources available for the research could possibly answer you. Trying to win an argument by saying "This is my assertion, prove me wrong!" when you know few if any would have the resources to do that under the conditions you impose (citing specific statutes and case law, in the case) is hardly a way to hold a meanigful amd informative dialog.

....

Hello Steve~

Actually, we all have access to the law. We all are responsible both to and equally "for" the law.

We are talking about the most important thing to our individual and collective liberty and that is the ability to openly communicate with one another in a democracy.

The free exchange of ideas, pleasant or not, is of dire consequence.

What I am seeking to explore here is what restriction might exist to ones First Amendment Rights.

....

The right to free speech recognises the fact that you have the right to state your ideas without government interference, a right that transcends any laws or govenrment. And I personally believe unless it protects your right to be offensive and obscene and outrageous and radical and run counter to accepted social norms it's meaningless...

That is fantastic! As you know doubt know or can easily surmise, I am in complete agreement with you.

....
...
But it does NOT trump the rights of other individuals to control their own property and person
....

These are most excellent points!

First, in this thread, we are specifically dealing with Privacy Rights. The right for an individual to prevent themselves from having sound and images recorded of them and for those images to be broadcast or made otherwise public.

Recoding sounds and/or images of people does not deprive them of their personal property.

Under very narrow circumstances it may deprive them of intellectual property and invade their privacy.

But, I know of no law in the United States that prohibits one from filming any and all persons and events in public.

As to controlling someones person in an extrajudicial manner, that is tantamount to slavery which was abolished by the 13th Amendment to the US Constitution.

"AMENDMENT XIII Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation."

....
...nor does it limit their right to restrict your ability to co-opt their personal likenesses for your own ends. It is not a violation of your right to free speech for your neighbor to say "you do not have the right to use my picture without permission" and to enlist the aid of the power of the government to enforce his rights against you if you do not respect his wishes.
...

Of course the 1st Amendment does.

It absolutely limits them as all laws in the United States have to comply with the US Constitution. It is the Supreme Law of The Land. Quite literally.

The 1st Amendment grants me the right to free speech.

What law can you site that restricts my use of your image for news and in particular documentary use?

....
It is not a matter of government restricting your right to think as you will and to publish your thoughts - it is the government forcing you to behave with respect to your neighbor and placing his rights as equal to yours.
...

Recording images and sounds of someone in public is indeed covered under the 1st Amendment as is the display of these images and sounds.

Our laws are indeed an attempt to balance our rights with one another. Again, in this particular instance, I am asking you to sight particular law (legislative, case, administrative...) that prohibits me from using these recordings?

....
Your right to free expression ends when your fist touches my nose.
...

Nonconsensual physical violence against someone is assault and is a crime. But, again, it has nothing to do with privacy rights.

Well, unless you decide to assault someone for recording you.


In all sincerely, I appreciate your position but without any specific laws forbidding something it is actually in fact 100% legal.

You have asserted that filming someone in public and using those images in news or documentary is forbidden.

I am simply asking you for the laws that you base this on.

 

[Steve House]

...
You have asserted that filming someone in public and using those images in news or documentary is forbidden.

I am simply asking you for the laws that you base this on.

I have not asserted that at all. In point of fact, the original post dealt with filming someone in a private location, ie, a place of business, outside of public view and even more to the point, filming the interior of that private location that would normally be hidden from public view and using the footage without a release. But be that as it may, I am also stating that 'news' and 'documentaries' are treated differently by the courts - that legally documentaries do not share the more relaxed rules that surround property and privacy rights that news coverage enjoys. What would be permissable use without release for news coverage is not automatically permissable use for documentaries and the legal status of documentaries in terms of the producer's obligation to respect other's privacy and property rights is, for the most part, no different from fiction or advertising shoots. The fact that it is non-fiction does not in itself make it journalism and entitle it to the exceptions allowed for news reporting, political commentary, filming of public figures and celebrities, etc.

 

[ESTEBEVERDE]

I have not asserted that at all. In point of fact, the original post dealt with filming someone in a private location, ie, a place of business, outside of public view and even more to the point, filming the interior of that private location that would normally be hidden from public view and using the footage without a release. But be that as it may, I am also stating that 'news' and 'documentaries' are treated differently by the courts - that legally documentaries do not share the more relaxed rules that surround property and privacy rights that news coverage enjoys. What would be permissable use without release for news coverage is not automatically permissable use for documentaries and the legal status of documentaries in terms of the producer's obligation to respect other's privacy and property rights is, for the most part, no different from fiction or advertising shoots. The fact that it is non-fiction does not in itself make it journalism and entitle it to the exceptions allowed for news reporting, political commentary, filming of public figures and celebrities, etc.

Steve... please show us the pertinent laws.

Unless it is specifically forbidden it is indeed permissible.

 

[Bobonli]

Let me have a crack at this. First: I am an attorney and this is not my area of specialization. So anything I write here should be construed only as general information, not legal counsel. I am not giving legal advice and by reading this you are not entering into an attorney-client relationship with me. There, legal stuff out of the way.

The OP has set up a straw man argument for the sake of taking it apart. I don't think anyone is going to convince the OP that his/her opinions are wrong. Having said that, what you are asking for is almost impossible. No one is sitting at their desk with legal citations waiting for such a question to come up so they can reply with detailed cites. Citing the Constitution just doesn't cut it since courts are free to interpret the Constitution and apply the law to the facts. That's called case law and it could be different for different states and it is certainly different for different fact patterns. The outcome of one litigation is often specific to that litigation and may not confer protection on a future situation.

It is easy to confuse case law or statutory law with the common sense application of the law. I can cite you hundreds of cases from my area of specialization but they will not tell you how to conduct yourself in a particular circumstance. That's why you consult an attorney: for practical advice on what you can and cannot get away with.

I've attended a few entertainment law seminars, including one as a shooter interested in selliing material to a network. Here's where real life overtakes what the law may or may not be. As a previous poster correctly wrote, outlets want everything released regardless of what the application will be. The big exception is news but your "news" better not turn up in a commercial project; otherwise, the outlet will be looking for a release. This includes people, logos, locations. This is practical application of the current state of the law. Outlets want protection even if the risk is low. You can argue with them until you are blue in the face; you're not going to convice them otherwise. No release = no go. As one producer told my group "We are risk adverse, we don't care what you think you need our attorneys want everything released."

So you can argue back and forth here but it won't change reality. Rest assured that some network attorney (more liklely his/her summer clerk) has researched the pants off of this subject and they've decided to take the safest road, which is not a bad idea. It leaves us more time to worry about producing rather than visiting attorney offices!

Finally, keep in mind that there are laws that you've never heard of. Go try and film a documentary "interview" standing outside the gates of a military base. You may be on public land but I'm betting you'd be whisked off the street in about 45 seconds and confronted with a little known regulation about filming within a cetain distance of a military base. What we think is public is often not classified as such deep in the bowels of the local laws. Your first amendment arguments will be of little help if you're charged with trespassing.

 

[Steve House]

Steve... please show us the permanent laws.

Unless it is specifically forbidden it is indeed permissible.

Since the issues at hand are almost always civil issues rather than criminal, the chapter and verse statutes you seek aren't likely to exist. Your First Amendment arguments ring rather like some of the right-wingnut 'experts' I used to know who claimed everyone was exempt from paying income tax and didn't need to hold a drivers license because both of them were contrary to the Constitution, steadfastly maintaining their claims and even giving public lectures, seminars, a radio program guest appearances (where I knew them from) on the topic all the way up to the point the US Marshalls showed up to haul them off to the pokey for tax evasion. Case law is agin ya, my friend.

 

[ESTEBEVERDE]

Since the issues at hand are almost always civil issues rather than criminal, the chapter and verse statutes you seek aren't likely to exist. Your First Amendment arguments ring rather like some of the right-wingnut 'experts' I used to know who claimed everyone was exempt from paying income tax and didn't need to hold a drivers license because both of them were contrary to the Constitution, steadfastly maintaining their claims and even giving public lectures, seminars, a radio program guest appearances (where I knew them from) on the topic all the way up to the point the US Marshalls showed up to haul them off to the pokey for tax evasion. Case law is agin ya, my friend.

Steve,

It is absolutely fantastic that you think the constitution is for "right-wingnut 'experts'".

I happen to think that it is for responsible individuals who want to live in an open and just society. Furthermore, the Constitution holds that all laws must flow from it and those that aren't reserved for the Federal Government vis a vis the Congress are reserved for the States. The States in turn grant municipalities the use of this authority as long as the municipal laws do not run afoul of State or Federal Laws. This is known as preemption and is codified in The Supremacy Clause. The Supremacy Clause is the common name given to Article VI, Clause 2 of the United States Constitution, which reads:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Both the legality of the Federal Tax System and the States individual requirement for a drivers license are quite clear and well defined in the law over and over again.


But, what in the world does this have to do with privacy rights!?!?!

Again, you are obfuscating and are desperately flailing about because you cannot back up your claim with any substantial references.

It is O.K. and I understand both your embarrassment and frustration.

This is not a race but merely a discussion. Take your time and if you can find any references in law (statutory, case, administrative, or otherwise...) I would love to learn about them.

 

[ESTEBEVERDE]

Let me have a crack at this. First: I am an attorney and this is not my area of specialization. So anything I write here should be construed only as general information, not legal counsel. I am not giving legal advice and by reading this you are not entering into an attorney-client relationship with me. There, legal stuff out of the way.

The OP has set up a straw man argument for the sake of taking it apart. I don't think anyone is going to convince the OP that his/her opinions are wrong. Having said that, what you are asking for is almost impossible. No one is sitting at their desk with legal citations waiting for such a question to come up so they can reply with detailed cites. Citing the Constitution just doesn't cut it since courts are free to interpret the Constitution and apply the law to the facts. That's called case law and it could be different for different states and it is certainly different for different fact patterns. The outcome of one litigation is often specific to that litigation and may not confer protection on a future situation.

It is easy to confuse case law or statutory law with the common sense application of the law. I can cite you hundreds of cases from my area of specialization but they will not tell you how to conduct yourself in a particular circumstance. That's why you consult an attorney: for practical advice on what you can and cannot get away with.

I've attended a few entertainment law seminars, including one as a shooter interested in selliing material to a network. Here's where real life overtakes what the law may or may not be. As a previous poster correctly wrote, outlets want everything released regardless of what the application will be. The big exception is news but your "news" better not turn up in a commercial project; otherwise, the outlet will be looking for a release. This includes people, logos, locations. This is practical application of the current state of the law. Outlets want protection even if the risk is low. You can argue with them until you are blue in the face; you're not going to convice them otherwise. No release = no go. As one producer told my group "We are risk adverse, we don't care what you think you need our attorneys want everything released."

So you can argue back and forth here but it won't change reality. Rest assured that some network attorney (more liklely his/her summer clerk) has researched the pants off of this subject and they've decided to take the safest road, which is not a bad idea. It leaves us more time to worry about producing rather than visiting attorney offices!

Finally, keep in mind that there are laws that you've never heard of. Go try and film a documentary "interview" standing outside the gates of a military base. You may be on public land but I'm betting you'd be whisked off the street in about 45 seconds and confronted with a little known regulation about filming within a cetain distance of a military base. What we think is public is often not classified as such deep in the bowels of the local laws. Your first amendment arguments will be of little help if you're charged with trespassing.

Interesting. But, nothing of substance.

As to filming an interview outside of a military base, this is actually not a privacy issue but falls under "national security". Until very recently, you wouldn't even have had your footage taken away if you were trespassing on the base in publicly accessible areas. (If you were in sensitive weapons areas you were actually very likely to be shot.)

Now, the Bush Administration is claiming National Security as an overriding concern and is indeed trying to limit the filming of some bases. But in general, if you would like to even film on the base all you have to do is contact the local public affairs office and make arrangements.

They are almost always accommodating.

Saying that "distributors" want releases is more often true than not, but I am simply asking for any law whatsoever that requires releases for the recording and distribution of images for nonfiction use.

You have failed to site a single one.

You claim that I am engaged in a "straw man argument" which is laughable as it in itself is a straw man argument thats sole purpose is nothing more than to obfuscate and fill in the void left by your lack of law references.

Thanks for the reply though.

 

[Bobonli]

After much research in the law library, I've concluded you're absolutely right and everyone else here is completely wrong.

Do as you please and let the chips fall as they may. You asked a question which is basically unanswerable (if for no other reason than no sane person is going to spend the amount of time needed to find every legal citation that you seek, at least not without renumeration). People tried to answer your question in good faith but you respond by criticizing their responses.

Have a good time going around in circles. Hire an attorney if you really insist on finding the statutory law in your state.

 

[Steve House]

Steve,

...
This is not a race but merely a discussion. Take your time and if you can find any references in law (statutory, case, administrative, or otherwise...) I would love to learn about them.

I didn't say that taxes, etc had anything to do with the discussion at hand, only that your constitutional absolutist viewpoint that all law flows from it and thus is contained therein is remarkably similar to those of the people I mention.

I am not a practicing attorney and don't have access to the sort of references that would be needed to provide the minimum level of detail that seems will satisfy you. As Bobonli said, you are setting up a straw man and I have better uses for my time than to tilt at it. I can only reitereate what I have learned over the years from attorneys who do know and from media business reference publications have told me is the situation a filmmaker or photographer faces. You are arguing what you want the law to be and to a certain extent I might agree with you - lord knows, it would makes things simpler if it was like that. But AFAIK you are not correct in regard to what the present business environment requires for prudence. Producers who proceed on the wishful-thinking assumption that your position represents legal fact are placing their productions and their assets in jeopardy and you do them a disservice.

 

[ESTEBEVERDE]

After much research in the law library, I've concluded you're absolutely right and everyone else here is completely wrong.

Do as you please and let the chips fall as they may. You asked a question which is basically unanswerable (if for no other reason than no sane person is going to spend the amount of time needed to find every legal citation that you seek, at least not without renumeration). People tried to answer your question in good faith but you respond by criticizing their responses.

Have a good time going around in circles. Hire an attorney if you really insist on finding the statutory law in your state.

So, you couldn't even use Lexus Nexus or Findlaw to come up with a single solitary example of either Statute or Case Law?