Is it legal to film people without their permission? Assuming you're filming them in a public place, the answer is usually "yes."
(Ed. Note: Be sure to check out the article, Privacy versus the Right to Know, also in this issue)
But is it wise to film somebody without permission? The answer to that question is not so clear.
A recent case involving tennis star Maria Sharapova helps to illustrate the problem. According to court documents, Sharapova and her agency, SW19, Inc., accused production company Byzantium Productions, Inc., of violating her rights of publicity and trademark rights when the company created and distributed two documentaries featuring footage of Sharapova playing tennis. Although Byzantium had lawfully obtained press credentials and shot much of the footage itself, neither Sharapova nor her agency had consented to the use of the Sharapova footage in Byzantium's documentaries or her pictures on the video boxes. When a Florida federal court was asked to determine if the documentaries infringed Sharapova's trademark rights, it ruled that as far as U.S. law was concerned, they did not. However, the court left open the question of whether the films infringed any rights under Japanese law, where one of the films was distributed.
Here's the kicker: even though Byzantium won the lawsuit, the filmmakers may still have suffered a loss. According to the Associated Press, the threat of a lawsuit has chilled the distribution prospects for the films, and copies of the movies still sit in a warehouse unsold. In short, Byzantium may have won the lawsuit but lost the war.
First, the good news: most states' laws say that people have very few privacy rights over those things that they do in public. Furthermore, the First Amendment is very protective of the rights of filmmakers, documentarians, and news crews. However, several areas can and do trip up unsuspecting filmmakers.
At the outset, it's important to draw a bright line between photographing a subject for commercial use as opposed to all other uses. Although the First Amendment protects most forms of speech, communication, and expression, it is somewhat less protective of commercial speech. As a rule of thumb, the commercial use of the subject's likeness will almost always require that person's express written permission.
For filmmakers, it is often helpful to think of television commercials, promotional videos, and advertisements as sitting on the commercial speech side of the equation, and narrative films, documentaries, and news as sitting on the other side.
The right of publicity
Right of publicity law protects subjects against the commercial misappropriation of their likeness. Be careful, industrial filmmakers: corporate videos may also count as commercial speech if they are being used to advertise the company's services or products. You should have a signed authorization from your subject; otherwise, you might be violating his or her right of publicity and can be sued.
Example: You film your neighbor washing his car and use that footage in a television commercial for car wax. You're using your neighbor's image for commercial purposes and must have his written permission to use the footage.
Example: You film your neighbor playing catch with his kids and use the footage in your company's film promoting its life insurance products. The finished video is used by insurance agents to help land clients. Here again, you're using your neighbor's image for commercial purposes and must have his written permission to use the footage.
Thanks to the First Amendment, right of publicity law rarely applies to filmmakers who are making expressive works such as movies, news, documentaries, and narrative television programs. Advertisements that are incidental to those expressive works are usually shielded from right of publicity laws as well.
Example: You shoot a narrative film that tells the true story of the real-life crew of a fishing ship that perishes in a horrible storm. To distribute your movie or television commercials advertising your movie, you do not need to obtain the publicity rights from the estates of the dead crew members.
Trademark infringement and false endorsement
A trademark identifies the source of a good or service. Although a person can have a trademark in his or her name or image, it is very difficult to win a trademark suit against a filmmaker who is not using the subject's name or image in a commercial manner. Generally, you can use a celebrity's image or name in your film if the use has artistic relevance to your work. However, filmmakers must be especially careful not to give the appearance that a subject has expressly endorsed the film if the subject, in fact, has not.
Example: A documentary about Tiger Woods would not necessarily infringe Tiger Woods's trademark rights or imply any endorsement on the part of Woods. However, a documentary called Tiger Woods Presents an Expert Guide to Golf would imply that Woods endorsed the film, and therefore would require his express permission.
Defamation and libel suits arise when a person who is distinguishable on camera claims that he or she was portrayed in a false manner that is harmful to his or her reputation. Usually, statements that are "merely unflattering, annoying, irksome, or embarrassing, or that hurt only the plaintiff's feelings" do not support a defamation claim. Nor will humor or parody. Furthermore, public figures such as celebrities and politicians have a much harder time winning defamation cases: they have to prove that the filmmakers knew that their portrayal of the subject was false or was made with a reckless disregard for its truth (a standard called actual malice).
Filmmakers tend to get into hot water when they portray nonpublic figures in contexts that are both scandalous and false.
Example: ABC News producers shot footage featuring close-ups of a black woman walking down the street as the voice-over commented on the number of black prostitutes who cruise for white johns. The woman featured was not a prostitute but an ordinary pedestrian, unaware that she was being photographed for the story. When she sued for defamation, the court held that the broadcast could be considered defamatory.
Even though you may have the right to film people in a public place, that right must be heavily qualified and subjected to a host of legal nuances and distinctions. To complicate matters further, laws differ from state to state and from country to country. As a result, if your film is distributed internationally, another country's more restrictive laws might apply to the question of whether or not you have violated your subject's rights. What is legal in the United States may not be legal in Japan, France, or Germany.
Remember, being able to win a costly lawsuit is not as important as preventing one in the first place. The law may be on your side, but the best practice is often to seek a subject's permission before you start shooting.
THIS ARTICLE HAS BEEN PREPARED FOR EDUCATIONAL AND INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE OR A LEGAL OPINION. ONLY YOUR ATTORNEY CAN ADVISE YOU WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC CASE AND SITUATION.
Thomas A. Crowell concentrates his law practice in the areas of entertainment and intellectual property law. Portions of this article were taken from his new book, The Pocket Lawyer for Filmmakers, scheduled to be published by Elsevier in February 2007. Crowell can be reached at www.thomascrowell.com
Avoiding Lawsuits: Consents and Releases
Although no one has the exclusive right to tell his or her own life story, a subject can file a veritable catalog of claims against the filmmaker who shoots an unauthorized biography, unflattering documentary, or fictionalized account of him or her. Film subjects who sue often lose their lawsuits, largely due to the protections afforded to filmmakers by the First Amendment.
That being said, subjects can and do sue. Your best protection is to have your attorney draft an agreement for your subject to sign. In other words, get the subject's permission up front and avoid lawsuits altogether!
Filmmakers working on documentaries or biographies should have each of their subjects sign a Life Rights Consent Agreement. Typically, a Life Rights Consent Agreement grants to the filmmaker the following rights:
• The right to portray a particular person's life in whole or in part
• The copyright to any images, footage, sound, or other depictions you record of that person
• The right to fictionalize or modify that person's life story
• The right (and sometimes the obligation) to use pseudonyms for people and places portrayed in the life story
• The copyright or license to use any accounts of that person's life story (this of course may be limited by any pre-existing literary works, such as autobiographies, based upon the life story)
• Often, the right to use the subject's name and likeness for commercial purposes
In addition to the grant of rights, the Life Rights Consent Agreement should also include clauses, called releases and waivers, that say the subject will not sue the filmmaker for any of the following:
• Libel and defamation
• Invasion of privacy
• Infringement of the right of publicity
• False endorsement
• Copyright infringement
• Trademark infringement
• Intentional and negligent infliction of emotional distress
• Any other claim arising from the granted rights
A depiction release (also called a model release) is used when you are shooting a subject but not telling his or her life story. This release is often used when you want somebody to play a minor role in your film or give an interview on camera. The depiction release contains many of the same grants, releases, and waivers as the Life Rights Consent Agreement, but is typically much shorter and less formal in tone. Unlike the Life Rights Consent Agreement, a depiction release doesn't contain clauses granting the rights to dramatize or portray the subject's actual life story.