Legal rights for public spaces...

[Greg Boston]

Originally Posted by Mark Bournes

I have walked thru areas where a sign is posted that filming is taking place inside and if you do not wish to be photographed then come back later. I have also seen similar signs posted in airports where filming is going. There is a similar sign posted outside of HART AND HUNTINGTON tattoo shop at the Palms in Las Vegas. I'm not sure but I am guessing they don't have to get releases from everyone. I do recommend getting legal advice if you can on this matter. Good Luck

Yeah Mark, I mentioned that same thing a few posts back. The local Triple AAA farm club stadium has the same notice. I've also gone to nightclubs where they had posted a similar sign about filming activity. I think it's probably a solid idea, but as always, one should check with a lawyer for their particular scenario.

-gb-

[Greg Boston]

Originally Posted by Michael Hamilton

Greg,

Thanks for the link to the legal rights book. I ordered it.

Cool, I don't have it, so give some us feedback when you get it. I might get a copy myself.

-gb-

[Steve House]

Originally Posted by Jarrod Whaley

Mark, that does sound like a workable Plan B, if nothing else. Still, I'd like to keep the shoot a secret if possible, because it'll be easier to manage in addition to the fact that the people in the diner will be acting completely naturally. I'm also afraid that the owner of the diner might hate the idea of posting signs, since it will potentially scare off some of his all-important lunch-rush business.

I do plan on getting some advice from a lawyer, even if only of the "free advice from a lawyer friend" variety. I'm just curious as to what you guys think.

Your plan has a much bigger problem than shooting permits. Without a written release from every recognizable person who appears in-frame you are leaving yourself wide open for lawsuit. What you're going to end up with may well be an excellent film that no one will ever see because no exhibitor, festival, distributor, or broadcaster will touch it with a 10-foot pole because of the legal liability. Every background person who you see in a Hollywood feature or network TV drama is a paid actor - about the only exceptions are those vaguely human shapes 2 or 3 blocks away in some street scenes. Your idea of shooting from across the street with the actors inside the restaurant and visible through the window is fine (but glare control might be an issue), though I'm not sure I'd want to use that for more than an establishing shot, but you need to worry about vehicles and foot traffic passing through your set and the other patrons in the restaurant much more than shooting permits and suspicious police.

[Todd Giglio]

Steve's got a point. You need to make sure you get everyone to sign a release form. Imagine you try to do this as 'secret' as possible and film without the diner customers knowing it. You end up shooting a clip where in the background you record a couple having an intimate dinner together and the film is shown. It turns out the couple in the background are actually having an affair which causes all kinds of problems. You are now being sued because you caused the breakup of a marriage... Yikes!

Of course this is all drama, but it could happen...

When I film, I always get a release form from everyone who appears on screen (and I mean 'appears'; if I'm shooting shallow DOF and everyone is blurred out then I don't worry about it).

Todd

[Jarrod Whaley]

How would you suggest getting releases from a room full of individuals when each of them is coming and going as he pleases? If I make everyone in the room sign a release before I shoot, and then take another pass around the room with releases afterward, what do I do about the guy who stopped in for coffee during one of the takes and left before I could get to him? Not to mention the fact that I highly doubt that the owner of the diner will allow this level of disruption. You point out that Hollywood uses only paid extras, but isn't the real point of this practice that the director can control the crowd's behavior?

Steve, I actually want cars and pedestrians passing through the shot; that's part of what makes it a visually interesting idea to me. And I do want to shoot the scene as a single take--it's a short scene anyway, and the rest of the project contains a lot of long takes. This is a calculated aesthetic decision that makes sense within the context of the project. I realize it breaks Hollywood's "rules" of continuity editing, but then so does the work of people like Jarmusch, Tarr, Godard, and Truffaut, to name but a few. You may not like the idea, and while the input is useful and appreciated, I'm purely looking for opinions on the legal side of all of this.

Your point about potential glare on the window is something I have considered; I have carefully observed the window in question at the appropriate time of day, and it looks to me like the building's overhang makes the glare pretty manageable with a polarizer. Of course I'll do a test before I commit fully to this idea.

You mention the risk of my getting sued by a private party. I do worry about this, which is why I've been asking for your opinions. It appears, based on everything I've been able to learn about these situations, that I'd be within my rights to shoot this scene in the way I've described. I realize that a private individual could still bring a suit even if I'm not breaking any laws, but at some point in this litigious society, you just have to accept some level of risk if you want to get anything at all accomplished. I could just as easily be (wrongly) sued if one of my neighbors backs into my garbage can at the curb, then freaks out and drives his car into a ditch... or if someone trips over her own feet at an event I'm shooting and claims to have in fact tripped over my taped-down mic cable. If you run from every potential lawsuit you can imagine, you'll find yourself locked inside your own house pretty quickly. That doesn't mean I'm saying that one should ignore the risk; on the contrary, I'm saying that in each case you have to assess whether or not the risk is an acceptable proposition. Discussing the risk in this thread is part of my assessment, and I appreciate the fact that some of you feel the risk is too large to be viewed as acceptable. I'm taking that into consideration.

As for festivals and/or distributors not accepting the work because of this scene--that's a bigger problem, if true. Doesn't pretty much every festival put a clause in the submission form stating that any legal and/or permissions issues with the submitted work are the producer's responsibility?

[Steve House]

Originally Posted by Jarrod Whaley

How would you suggest getting releases from a room full of individuals when each of them is coming and going as he pleases? If I make everyone in the room sign a release before I shoot, and then take another pass around the room with releases afterward, what do I do about the guy who stopped in for coffee during one of the takes and left before I could get to him? Not to mention the fact that I highly doubt that the owner of the diner will allow this level of disruption. You point out that Hollywood uses only paid extras, but isn't the real point of this practice that the director can control the crowd's behavior?

Steve, I actually want cars and pedestrians passing through the shot; that's part of what makes it a visually interesting idea to me. And I do want to shoot the scene as a single take--it's a short scene anyway, and the rest of the project contains a lot of long takes. This is a calculated aesthetic decision that makes sense within the context of the project. I realize it breaks Hollywood's "rules" of continuity editing, but then so does the work of people like Jarmusch, Tarr, Godard, and Truffaut, to name but a few. You may not like the idea, and while the input is useful and appreciated, I'm purely looking for opinions on the legal side of all of this.

...?

I'm not critisizing your esthetic choice of having pedestrians and traffic passing through the scene, far from it. Sounds like it could be an interesting shot. Just saying that if you can recognize anyone's face inside the restaurant or out you have to have a release to be able to legally use the image and all it takes is one disgruntled passer-by to prevent you from ever using that scene.

Yes, the director needs to control the crowds behavior but that's not the reason they use extras instead of just anyone that happens to wander in. The whole release issue that we're talking about is the main reason. Whether you use PAID extras or not is not the point. It is that no one is in the film who doesn't know that they're in it and has agreed to the use of their likeness ahead of time.

You ask how can you possibly get a release from everyone in the restaurant as they come and go. The answer is that the restaurant is closed to normal business for the shoot and everyone in the scene - principals, restaurant staff, passers-by, other patrons, everyone from the star on down - are all there specifically to appear in the film and you have signed releases from them all before an inch of tape is rolled. Whether paid or not, that's the way it's done. Been there, done that. A very sleepless night as we couldn't get in before 9pm and had to be wrapped and out by 8am, and this was a training film for the company that owned the restaurant!!

[Jarrod Whaley]

Thanks for your replies and input, Steve. Let me address a few points:

Originally Posted by Steve House

Just saying that if you can recognize anyone's face inside the restaurant or out you have to have a release to be able to legally use the image and all it takes is one disgruntled passer-by to prevent you from ever using that scene.

I have heard and read many times that this is the case, but I'm also beginning to encounter a contradictory opinion--namely, that photographers (and videographers / cinematographers, by extension) have a right to photograph people when they are in public places. This has been discussed in this very thread. What is your reaction to this opinion, especially in light of the lawyer-drafted document to which Greg Boston has linked above?

I'll also point out that at the long focal length I'll be shooting with, any pedestrians walking through the shot will be quite beyond the near end of the shot's depth of field; the sidewalk nearest to the diner is at least 15 feet from the window. So pedestrians will not at all be recognizable, just some of the people inside the diner.

Originally Posted by Steve House

You ask how can you possibly get a release from everyone in the restaurant as they come and go. The answer is that the restaurant is closed to normal business for the shoot and everyone in the scene - principals, restaurant staff, passers-by, other patrons, everyone from the star on down - are all there specifically to appear in the film and you have signed releases from them all before an inch of tape is rolled. Whether paid or not, that's the way it's done. Been there, done that. A very sleepless night as we couldn't get in before 9pm and had to be wrapped and out by 8am, and this was a training film for the company that owned the restaurant!!

While I suppose this approach is at least theoretically possible in my case (even though I don't have much in the way of a budget, I might be able to sweet-talk the diner's owner into letting me shoot there during a low-volume late-afternoon kind of situation and people the room with volunteer extras), a big part of the appeal of the idea I've described is that the people in the diner will be acting naturally, since they won't know they're in a movie. The fact that shooting unawares would be much easier in some ways is really only a happy corollary to the desire to capture an extremely naturalistic atmosphere.

I'm not ruling out the controlled shooting environment you describe by any stretch of the imagination--it may be that I will have to take that route if in fact I am not within my rights in shooting the scene secretly. But again, since I'm hearing conflicting opinions on what my rights (and the rights of the anonymous diner patrons, of course) actually are, I'm at this point weighing my options and trying to see if my admittedly "ballsy" idea is feasible.

So again... what's your take on the difference of opinion here, Steve?

Thanks again for your time and willingness to help.

[Greg Boston]

Originally Posted by Jarrod Whaley

I have heard and read many times that this is the case, but I'm also beginning to encounter a contradictory opinion--namely, that photographers (and videographers / cinematographers, by extension) have a right to photograph people when they are in public places. This has been discussed in this very thread. What is your reaction to this opinion, especially in light of the lawyer-drafted document to which Greg Boston has linked above?

Jarrod, you may have the 'right' to photograph someone, but using it for commercial gain is the problem. To sell your film, releases are needed. There is an exception in the law regarding celebrities and dignitaries. They are considered 'public figures' and as such, are considered fair game in public.

And then there is the journalism scenario whereby releases are not required from bystanders(ie news, weather, sports).

-gb-

[Dave Blackhurst]

What Greg said...

IF you profit from your movie it is different from me taking some "home video". I can take that video, and show it to family and friends, not charge anything, maybe even show it around town for giggles, since I'm not making a dime off it...

BUT as soon as your venture is "for profit" (even if you never make ANYTHING, what counts is you INTENDED to), you're now "profiting" from the use of someone else's likeness, and making a PUBLIC display thereof - thereby potentially exposing that individual against their will to public scrutiny/ridicule/scorn/etc.

Rule is simple - if you intend to profit, get the releases.

The line is undoubtedly blurred by the technology of the day - we are all recorded regularly by security cams, traffic cams, surveilance cams, ATM cams, ad nauseam - all without our consent. There is seemingly little harm in this, and so what is there to stop a private individual from taking a few videos or pictures... nothing per se. Practically every cell phone has a camera either still or video, you can pretty much expect you COULD be caught on video - think of some of the videos lately that have caused MAJOR stinks - Saddam execution, the guy from Seinfeld (Kramer/Michael something). Privacy while in a public place is pretty much nonexistent, and even places that SHOULD be restricted have trouble keeping technology out.

That doesn't mean that you can just shoot without restriction or consequence, and you're far better to cover your tail or be prepared to find yourself on the wrong end of a lawsuit... especially if you make money from your "work".

[Steve House]

I've gotta go with both Greg and Dave. Control your set and get the releases. Call me paranoid ...

[Jarrod Whaley]

Thanks everyone. It looks like I'll end up taking the headache-inducing path of doing everything by the book after all, in spite of what I can assume will likely be a negative impact on the level of naturalism captured in the scene.

I suppose I might be able to use framing, blocking, and selective focus to minimize the number of identifiable John Q. Publics in the scene and thereby end up needing maybe only two or three releases. I suppose it's possible and maybe even aesthetically preferable, but it's going to be difficult on a technical level.

I guess that in the current social climate, I might be sued for just about anything. Someone might think my breath smells bad and sue me for the "mental anguish" it has caused them. It's enough to make me want to smash my head against the wall. I guess I'd be well advised to avoid leaving my garbage at the curb or taping down mic cables anytime soon. :)

Thanks.

[Richard Alvarez]

Jarrod,

Today's 'legal climate' is certainly different, mostly because today's technical possiblities are boundless. Right to privacy, right to publicity, private property,public property, documentary rights, 'newsworthy elements, and 'fair use' are all tricky terms of art.

But really, you touch on the heart of the issue when you mention it's all about risk assumption.

How much risk are YOU really willing to assume? You put all this time and effort and money, (not to mention that of your actors and crew) into a film, which contains a shot or two that might blow the effort?

Basically, you're asking yourself to accept one of two premises.

"This film will NEVER be successfull enough to become high profile, make money and therefore become a potential target for litigation" (the betting against yourself line)

OR

"All the time money and effort that I and the crew expend, are worth this one scene, and if it keeps it out of festivals or distribution,or costs me enormous wads of cash to settle, at least we'll have a movie we can watch ourselves."

Which is it?

[Denis Danatzko]

Originally Posted by Dave Carson

You cannot shoot accross private property without permission.

Someone sitting on their porch in front of their house, there is no reasonably expected privacy as anyone walking by could see them, they can be filmed - they are in the public.

I can't picture how this could happen.

If shooting someone on their porch, not only are they "using" private property (their own), but you are also shooting across private property (their's) in order to tape them.sitting on their porch. (Presuming I'm shooting from the street or sidealk).

If anyone can explain this, please do.

Contradictions like this "chicken or the egg" situation are what prevent me from shooting in public, and are giving me a headache. (I guess I'll just have to turn my entire house into my own private studio and lot, and bring in talent when I need it. Wonder what my wife would think)?

Yikes! I'm losing my mind.

[Steve House]

Originally Posted by Jarrod Whaley

Thanks everyone. It looks like I'll end up taking the headache-inducing path of doing everything by the book after all, in spite of what I can assume will likely be a negative impact on the level of naturalism captured in the scene.

....

If it's any consolation, what *is* natural in the scene often doesn't look or feel natural on the screen and conversely, what seems the most natural on the screen is anything but in real life. The classic example is the "whoosh" of the Enterprise fly-bys in StarTrek. Complete violation of the laws of physics, in real space travel it would pass in complete silence, but the scene simply wouldn't be believable on the screen without the whoosh. If you're going to go whole-hog and use 'extras' in the scenes, with direction it shoudn't be too hard to get even amateurs to present a natural appearance. And your dialog recording is going to be MUCH cleaner if the background characters are feigning speaking rather than actually talking - you add the background 'buzz' as a walla track later in post.

[Jarrod Whaley]

Originally Posted by Steve House

If it's any consolation, what *is* natural in the scene often doesn't look or feel natural on the screen and conversely, what seems the most natural on the screen is anything but in real life. The classic example is the "whoosh" of the Enterprise fly-bys in StarTrek. Complete violation of the laws of physics, in real space travel it would pass in complete silence, but the scene simply wouldn't be believable on the screen without the whoosh.

I have to admit that this is a good point--another example would be the foley applied to fistfights. These are auditory examples, though, and I would argue that visual naturalism is at least a slightly different kind of animal. I still think, in this particular situation, it would be easier to get a naturalistic *visual* atmosphere if the people in the shot (especially the servers and other employees) were just going about their usual business. I think I'm going to try to just minimize the number of faces in the shot using the techniques I was talking about above--maybe I'll frame and/or block the shot so that only one other table (at which extras are seated) is visible, so that any unsuspecting John Q. Publics in the shot would only be walking across the frame with their faces outside the top of it.

Originally Posted by Steve House

And your dialog recording is going to be MUCH cleaner if the background characters are feigning speaking rather than actually talking - you add the background 'buzz' as a walla track later in post.

Another good point, but I am more than willing to allow for ADR and detailed foley as a "plan B" if the "live" dialogue turns out to be unusable. In other words, I'm willing to end up having to recreate and micromanage the audio if I can get the visual end of things to come across naturally. I'm sure I'll end up doing at least a little ADR for some other scenes in this project, so doing so for this scene wouldn't really add all that much in the way of extra headaches in post.