I was reading the "tricky question" thread and had some questions about obtaining video of people in public and the legality of it.

If I am filming a street shot and average everyday people are in the background just walking by, do I need to get their permission to tape them? Even if for just a home video.
If I end up playing the final video in a public non-profit setting, do I need to get their permission for that?
What if I want to sell the video?

At some point I may make a promotional video for my company, part of which would include public shots of the town and others perhaps inside private events (sporting events, outside street concerts,etc.) where I would certainly catch innocent bystanders on tape. I'm a hobbyist and wouldn't be selling the video per se but may send it to a handful of potential employees.

I suspect some of you more experienced videographers have dealt with this issue.

When in doubt, get a release. If it's for profit or not it makes little difference. If the usage is strictly home use and nothing beyond that your OK. The copyright police won't be peeking in your window. Anything beyond home use is a red flag and your just putting yourself, your business etc. at greater risk. If the shot is that important, do it right and get the release. If not, wait until the people are out of the shot.

I believe that most of what you are talking about is considered "incidental", they are not considered the subject area of your filming. Kind of like doing video at the zoo or something.

To some degree there is an expectation of privacy. If the subjects are recognizable I would get a release. If your talking a blur, or they are so small as to be unrecognizable you're safe. Otherwise, get the release unless it's just for your private use.

It's not hard to ask for a release. Why risk anything more than you have to? We live in a very litigious society these days.

Usually when there is shooting to be done in a public area where non participating individuals are going to be in the shot, I have seen large disclaimer signs posted on the perimeters of the set. These clearly state that if your image is captured while you are in the proximity of camera's lens or if you make an effort to be captured or whatever, you are doing so with no chance of receiving a reward or compensation for your incidental or purposeful appearance in the frame.

James,
The "sign" method was used here recently while shooting a feature film along North Michgan Ave. The producers wanted a certain amount of casual street traffic in the background of shots. Of course, they also had a permit for the location.

Yes, as I mentioned in another post on Friday, we used a sign while shooting at a "special olympic" event. It was posted at the entrance where everyone had to pass by.

The book I got it from is full of good signs and release forms.

"The Complete Film Production Handbook" by Eve Light Honthaner

This is a must have for any indy pro co. I use it all the time.

For scenes I am considering it is essential to have normal pedestrian traffic. The "sign" method sounds like a good idea.

I just thought of something interesting. I used to work at Grady Hospital in Atlanta, GA which is a major trauma center. The news was frequently broadcast from outside with the hospital in the background when they were covering an interesting trauma case. I walked by several times in shots (as have many other people over the years) and as I recall the news stations made no effort to get a release or post signs. It was obvously clear to everyone that they were taping and I guess they asumed if you don't want to be in the shot you wouldn't walk past the camera.

Is that how they get away with it or does news coverage fall under different rules?

News media have different rules.

Notwithstanding what the production book may say, I'm not at all comfortable with the sign approach, unless it's a darn big sign and you make absolutely sure that anyone who walks through the shot has seen it.

There are at least two legal concerns about using recognizable images of people without obtaining releases. One involves right-of-publicity/commercial appropriation of likeness laws, which vary from state to state. These are fairly straight-forward, and generally prohibit use of someone's name, likeness or image for commercial purposes without permission. The other is false-light defamation, which is a product of common law, rather than statute. As an example of the latter, if you're shooting a film about hookers on Sunset Boulevard in Hollywood, and you have non-actors walking across the shot in the background, sign or no sign, they might have a cause of action for false-light defamation if a reasonable person upon seeing the film might assume that the _filmmaker_ is suggesting that they are present on the street because they, themselves, are hookers.

A big sign at all street corners (and in all applicable languages), by which everyone on the street would have to pass, with PAs to call attention to it, and clear demarcation of where people can go if they don't want to be in the shot MAY obviate liability for commercial appropriation of likeness. It probably would NOT eliminate liability for false-light defamation, which is the more serious of the two, as it is a tort and can carry the possibility of punitive damages.

Bottom line: don't go there without legal advice. There are plenty of lawyers who provide advice to young, starving artists pro bono (that is to say, free). Find one if you fit the young & starving category. If you're a professional, making money from this, then spend a couple of hundred bucks (about the cost of one or two batteries for your camera), and get a definitive answer. Trust me, you'll sleep better. ;)

That's interesting.

I think I'll limit my showings to family and friends for now.

Just out of pure curiosity, I also assume permission is required to include a business' name (such as a downtown street scene with a Sizzler or Hyatt sign included in the shot). Or do different rules apply?

Yes, permission is required as their names are generaly trademarks.

Yes, permission is required as their names are generaly trademarks.

Business names are always trademarks. But you're wrong . . . You don't necessarily need permission to use trademarks. There are two concerns -- trademark infringement and trademark dilution. The legal definition of trademark infringement is creating, "a likelihood of consumer confusion as to source, sponsorship, affiliation or endorsement." If there's no possibility of consumer confusion, then there is no infringement. Trademark dilution results when a famous mark (that is a legal term of art) is either tarnished or its source-identifying character is diminished by another commercial use.

Going back to my earlier example, if you do a film about hookers in Hollywood, and you show a police car driving past Ben Frank's coffee shop on Sunset Boulevard, you almost certainly haven't infringed the Ben Frank's trademark, merely because it appears in the background. If, on the other hand, your film's plot involves hookers who habitually hang out at Ben Frank's, you may have tarnished the mark by suggesting that Ben Frank's is a hooker hang-out.

Intellectual property law is rarely a matter of black and white, and is definitely not an area where lay opinions are likely to be accurate. Once again, if you're doing this professionally, include a consultation with a lawyer in your budget. You'll avoid unnecessary artistic compromises, and you'll have some security that you won't find yourself sued.

Interesting!

Is that why Pepsi is able to use Coke name and logo in their commercials?
Everyone I've ever talked to in the past has said that you can't use other people's trademarks in video without permission, from a Subway store in the background to a bottle of Evian on someone's desk. I like your answer better.

Right. Pepsi can mention Coke, as long as there is no likelihood of consumer confusion (and Pepsi isn't misrepresenting any comparison). There's also a separate doctrine in trademark called fair use. It's similar to its counterpart in copyright, except that its much less well-defined. That's what allows Michael Moore (and, for that matter D' Ali G show) to address specific businesses by name.

Hi All -

I am doing a video shoot of the local Southern California Muscular Dystrophy Association (MDA) anual walk / run.

The video will be used in a varity of ways, including poss. TV commercials, local advertizing to the MDA family's and as thank you's to their corp. sponsors. Maybe some other stuff too.

How do I get a release or something for potentally thousands or more of these supporters who will be at the event?

They all (the walkers /runners) obviously will be supporting the MDA so is there a legal issue with that?

Any help on this would be great.

- AR

All of the runners/walkers will, no doubt, have to sign some sort of entry document to participate. Make sure that that document includes a consent to use their images (and be specific about how those images will be used). I would not be comfortable with implied consent by virtue of participation -- all they agreed to do was support MDA by running. Also, see what I wrote, above, about false-light defamation.

Hello, gang -- :-)

Along the lines of this thread -- I am considering taking a calculated risk for a commercial appropriation of likeness violation.

OK --

I am thinking about filming some stuff on the Santa Monica 3rd Street promenade -- a public walking space full of shops in Los Angeles. I would not be going into any private stores. I will be a one-person crew. Looking like a tourist. (I don't know exactly how much a permit costs to shoot there -- the research I have done indicates that it's about $250 and up -- plus a use fee -- so I think that I may take a calculated risk and play the role of the tourist without permits.)

I will mostly be following a single subject (maybe 2 subjects) around -- from whom I have already secured model releases. The camera will at all times (almost) be on them.

OK -- here's the tricky part for me --

There will be background foot traffic. It is possible that some background faces will be fleetingly recognizable -- But at no time will the background people be the "focus" of the filming. Anyone who speaks on camera or who has any featured or "principal role" interaction with the talent -- I will get a release from.

I know that I am exposing myself to "commercial appropriation of likeness" considerations -- from the foot traffic in the background -- if the film that I am making ends up (in my dreams :-)) getting picked up for distribution or broadcast.

However, I read that when our resident guru, Paul Tauger, was thinking about doing something with his travel videos -- which also has background faces on it, he wrote:

"I live in a state with commercial appropriation of likeness laws [California] so I could, in theory, be held liable. However, again, the damages for something like this _would be negligible, assuming I were successfully sued_. "(Emphasis added)

I guess my question is: suppose I go ahead and make the film with the background foot traffic -- some of who may be identifiable -- although clearly in the background.

Assuming that there is no false-light violation, but only an (incidental) commercial appropriation of likeness violation (de minimus?), what is the extent of damages that may be claimed?

If they are in fact negligible, I may take a calculated risk.

Consider also:
http://www.caslon.com.au/ipguide24.htm

which writes regarding Commercial Appropriation Of Likeness lawsuits:

"Most litigation involves celebrities, _as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value_ and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts. [Emphasis added.] "

Thanks for your help, thoughts, or ideas -- :-)

This is all really, really confusing!


Albert

I know that I am exposing myself to "commercial appropriation of likeness" considerations -- from the foot traffic in the background -- if the film that I am making ends up (in my dreams :-)) getting picked up for distribution or broadcast.

However, I read that when our resident guru, Paul Tauger, was thinking about doing something with his travel videos -- which also has background faces on it, he wrote:

"I live in a state with commercial appropriation of likeness laws [California] so I could, in theory, be held liable. However, again, the damages for something like this _would be negligible, assuming I were successfully sued_. "(Emphasis added)

Whoa! The particular video I was thinking about taking commercial was filmed in India, which is why I wasn't too worried about getting sued in California by someone from India. That was a practical, rather than legal, decision.

I've seen several videos where they blur the faces of anyone that is close enough to be recognized. That of course could distract from the artistic quality of the video, depending upon what you are shooting it for. Is that an option?

Paul --

Sorry for the misunderstanding. :-(

I didn't realize that your travel video was from India -- yes, way different from downtown Santa Monica :-)!

I probably will just do what Dan suggests -- and blur out the faces of all of the recognizable background people.

It would somewhat distract from the artistic quality of the video, but Better safe than sorry.

Thanks,
Albert

PS. Still curious about the amount of "damages" that may be typically derived from a successful "commercial appropriation of likeness" lawsuit -- whether the non-celebrity background person is from India or Santa Monica.

It is rather strange. It seems like a lot of effort to go through for the probably minute chance that someone will recognize themselves and then be upset that they were on a video. But still, I'd much rather be safe than sorry.

Regardless of the outcome of a lawsuit against you, the cost of defending yourself in court would be a substantial setback against your profit margin.

I was watching the behind the scenes footage on the making of the "Incredibles" yesterday. Quite a bit of 'blurred out' faces in the backgrounds on some street shots.

So yes, even the big boys cover their backs.

"Most litigation involves celebrities, _as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value_ and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts. [Emphasis added.] "

At least in California, commercial appropriation of likeness is an intentional, rather than negligent, tort. This means that, if a plaintiff can demonstrate willfulness or malice, he or she can obtain a punitive damage award, i.e. the commercial value of someone's likeness is not the only measure of damages. Also, actual damages can be determined by the value of the image to defendant, not just by the potential value of the image to the plaintiff.

What all this means is this: don't assume that appropriating the image of an "average Joe" will result in minimal liability for damages. And, as someone else mentioned, the costs of defending a suit, even if resulting in a finding of non-liability, can be astronomical (which, by the way, is a good reason for carrying insurance).

Thanks for all of your thoughts, guys.

I guess the "blurred out" option is the way to go. And I suppose the background "blurred face" is becoming a more and more acceptable/less distracting -- at least in documentaries.

Lawsuits, lawsuits, lawsuits. Man -- I think one day, everything we film is going to look like this:

http://www.smugglersite.com/05/directors/music/adamfreeland_happy.html

Enjoy :-) :-)
Thanks again --

Albert

Lawsuits, lawsuits, lawsuits. Man -- I think one day, everything we film is going to look like this:

And I expect that one day I'll get billing above the title. ;)