validity of on camera releases vs. signed releases

[Tim O'Connor]

Often filmmakers will get an on camera release if possible. "Do you consent to have us

record your likeness/image and use it in our for profit movie in exchange for a dollar/lunch/us letting you be in the movie ?"

 

I hear people say that although useful, an on camera release is not as legally strong as a signed written release.

 

Why is that? I suppose that a written release might be more specific in informing the person about all the ramifications of what it means to sign that release, but if you get an on camera release with one of the filmmakers on camera asking a specific question and having it answered affirmatively by the person on camera, shouldn't that be pretty strong?

 

Also, there is a lot of discussion about how it's far more okay to shoot people on public property than say on private property. I saw part of Michael Moore's "The Big One" on cable today. It shows him in scenes where he's at come corporation's lobby and the police show up and they and the security guards and the receptionist are all telling him that he's on private property and to turn off the camera and that he has to leave. All of those people are clearly shown, including when they're saying turn off the camera and get off this private property. I doubt that any of them would have been likely to sign releases.

There are no faces blurred or voices changed. How does this movie, or others like it, get away with this? This movie certainly got distribution and is still being shown publicly.

 

By the way, does anybody know what happened with the lawsuits against "Borat"? Weren't people suing saying that they had signed releases but they had been misled about the film so that they could be tricked into being portrayed as buffoons when they thought that they were being asked to help out?

[Walter Graff]

"I hear people say that although useful, an on camera release is not as legally strong as a signed written release."

 

All depends. Having footage of someone making clear consent could be as 'legal' as a piece of paper. It all depends on the lawyers and how good they are at presenting a case and the situation at hand. But generally, one wants to have paper signage because the terms are more well defined. And for those who post signs at events you are shooting at that state the area is being filmed in order to get general blanket coverage, make sure to film the signs themselves and the areas they are located in as you not only need to say you had signs up in court but show that they indeed were in the public view. The bottom line is that no contract written or otherwise is a guarantee of security. For instance in some states prenuptials can easily be thrown out of court if a judge determines they are not fair to a party. As lawyers like to say contracts were made to be broken, and as your Borat question says, even when signed, releases can be challenged.

 

"You get an on camera release with one of the filmmakers on camera asking a specific question and having it answered affirmatively by the person on camera, shouldn't that be pretty strong?"

 

It certainly works for me. I was involved with a few cases in the nineties working for Sony pictures television. We had some last second entries for set ups and simply did on camera releases. In two instances litigation was brought up, both times the on camera proved enough.

 

"The Big One" on cable today. It shows him in scenes where he's at come corporation's lobby and the police show up and they and the security guards and the receptionist are all telling him that he's on private property and to turn off the camera and that he has to leave. All of those people areclearly shown, including when they're saying turn off the camera and get off this private property. I doubt that any of them would have been likely to sign releases."

 

This is where it becomes subtle difference between news and entertainment. When one is doing 'news type' investigative documentary journalism, the line of what is legal changes. Moore often crosses back and forth between the lines and the constitution protects his right as a journalist to get answers. If it went to court, that is how his legal team would present it.

 

 

By the way, does anybody know what happened with the lawsuits against "Borat"? Weren't people suing saying that they had signed releases but they had been misled about the film so that they could be tricked into being portrayed as buffoons when they thought that they were being asked to help out?

 

I would imagine some monies were paid to the parties and releases agreed upon and considering how much Borat earned, giving a ways a few hundred thousand dollars would be chump change.

[Tim O'Connor]

"I hear people say that although useful, an on camera release is not as legally strong as a signed written release."

 

All depends. Having footage of someone making clear consent could be as 'legal' as a piece of paper. It all depends on the lawyers and how good they are at presenting a case. But generally, one wants to have paper signage because the terms are more well defined. And for those who post signs at events you are shooting at that sate the area is being filmed to get general blanket coverage, make sure to film the signs themselves and the areas they are located in as you not only need to say you had signs up in court but show that they indeed were in the public view. The bottom line is that no contract written or otherwise is a guarantee of security. For instance in some states prenuptial can be thrown out of court if a judge determines they are not fair to a party. As lawyers like ot say contracts were made to be broken, and as your Borat question says, even when signed, releases can be challenged.

 

"You get an on camera release with one of the filmmakers on camera asking a specific question and having it answered affirmatively by the person on camera, shouldn't that be pretty strong?"

 

It certainly works for me. I was involved with a few cases in the nineties working for Sony pictures television. We had some last second entries for set ups and simply did on camera releases. In two instances litigation was brought up, both times the on camera prooved enough.

 

"The Big One" on cable today. It shows him in scenes where he's at come corporation's lobby and the police show up and they and the security guards and the receptionist are all telling him that he's on private property and to turn off the camera and that he has to leave. All of those people areclearly shown, including when they're saying turn off the camera and get off this private property. I doubt that any of them would have been likely to sign releases."

 

This is where it becomes subtle difference between news and entertainment. When one is doing new type investigative documentary journalism, the line of what is legal changes. Moore often corsses back and forth between the lines and the constitution protects his right as a journalist to get answers. If it went to court, that is how his legal team would present it.

 

 

By the way, does anybody know what happened with the lawsuits against "Borat"? Weren't people suing saying that they had signed releases but they had been misled about the film so that they could be tricked into being portrayed as buffoons when they thought that they were being asked to help out?

 

I would imagine some monies were paid to the parties and releases agreed upon and considering how much Borat earned, giving a ways a few hundred thousand dollars would be chump change.

 

 

 

 

I guess it's like some of the other discussions on here about different things. It depends on the circumstances and specs. don't mean everything.

 

Thanks, Walter.

[Brian Rose]

I participated in a Q/A a while back with the documentary filmmaker Eugene Jarecki and he discussed a situation he found himself in that was struck me as similar to what you're asking about. It involved footage of an interview he was using for his film "The Trial of Henry Kissinger." In it, a man is doing a standard talking head in his office. During a break, he makes a phone call (or receives one...my memory fails me), and proceeds to make some joking comments to whomever was on the other line. It was pretty juicy, but it posed Jarecki with a problem. Since the interview had ceased, was it therefore "off the record?" Did the release apply? Was the conversation privileged? Jarecki's legal team ultimately determined the footage could be used because of a critical action made by the subject. While he was on the phone he *looked* at the camera. By breaking the fourth wall, he acknowledged the camera's continued presence, and because he did not ask if it was still on, or request it be turned off, he implicitly gave consent for the conversation to be filmed!

 

Ultimately, Jarecki opted not to use the clip, because he deemed it a rather cheap shot that didn't serve his purpose. Kudos to him for showing some editorial integrity! Ultimately, the lesson is to have a written release that covers all bases. I use a fairly simple form that says, in lay terms, "Anything on camera I can use in any way I want." It's phrased a bit nicer than that, but that's ultimately what it boils down to. But failing that, there are ways to use footage, like in the example above. I'm also pretty sure that footage shot in public spaces fall under fair use, though it always helps to ask. Most people don't mind being on camera, and are actually excited by the prospect of being in a movie. It's all about how you handle it. I keep a lot of business cards on me. It makes me look professional, and it reassures them that they can contact me.

 

Hope this helps!

 

Best,

BR

[Tim O'Connor]

I participated in a Q/A a while back with the documentary filmmaker Eugene Jarecki and he discussed a situation he found himself in that was struck me as similar to what you're asking about. It involved footage of an interview he was using for his film "The Trial of Henry Kissinger." In it, a man is doing a standard talking head in his office. During a break, he makes a phone call (or receives one...my memory fails me), and proceeds to make some joking comments to whomever was on the other line. It was pretty juicy, but it posed Jarecki with a problem. Since the interview had ceased, was it therefore "off the record?" Did the release apply? Was the conversation privileged? Jarecki's legal team ultimately determined the footage could be used because of a critical action made by the subject. While he was on the phone he *looked* at the camera. By breaking the fourth wall, he acknowledged the camera's continued presence, and because he did not ask if it was still on, or request it be turned off, he implicitly gave consent for the conversation to be filmed!

 

Ultimately, Jarecki opted not to use the clip, because he deemed it a rather cheap shot that didn't serve his purpose. Kudos to him for showing some editorial integrity! Ultimately, the lesson is to have a written release that covers all bases. I use a fairly simple form that says, in lay terms, "Anything on camera I can use in any way I want." It's phrased a bit nicer than that, but that's ultimately what it boils down to. But failing that, there are ways to use footage, like in the example above. I'm also pretty sure that footage shot in public spaces fall under fair use, though it always helps to ask. Most people don't mind being on camera, and are actually excited by the prospect of being in a movie. It's all about how you handle it. I keep a lot of business cards on me. It makes me look professional, and it reassures them that they can contact me.

 

Hope this helps!

 

 

Yes, thanks Brian.

 

Of course perhaps the man looked at the camera or camera person because he was incredibly naive enough to think that he was indicating

'don't record this' and didn't know enough to take the call elsewhere or ask and wait till the camera got turned off. It does sound like Mr. Jarecki did the decent thing.

 

I think a case in the news now of interest is how Fox News showed Jesse Jackson's whispered comments this week while he was

in a studio and miked. Now he's a savvy guy and should know better but since most every media person I've heard says that such talk on a hot microphone is fair game, I guess that means that those media people would also use it if the Rev. Jackson weren't miked but they overheard him.