bystanders in frame

[Grainy]

hi all - can anyone give me a definitive guideline regarding the degree that bystanders can be in frame in a public outdoor setting and NOT have to get them to sign a release. IE: in a parade shot.

I've heard things as vague as "not prominently displayed". Can anyone advise better than that?

thanks very much

G

[Guest Charlie Seper]

I don't think there is a definitive guideline. People just wrangle through the process the best they can and hope they don't get sued. Technically you must obtain a release from every bystander in every frame of film. Only news stations are exempt from this, but even they cheat with it quite often. They're really only allowed to have 1-time broadcast rights when it comes to showing their clips involving bystanders, however, you'll notice that they often rerun old clips quite often. But they know they probably won't get sued over a news broadcast and can afford it if they do. The only way around this for us non-news people is the route you alluded to, that is, making sure the bystanders are in the distance enough not to be made out clearly, or that you've blurred the focus on them purposely. But that raises another sticky question to which I have no idea what the answer is: What if on a DVD disc a person is reasonably far off in the distance so as not to be identified but that they could be identified if someone watching the DVD uses the zoom control?

 

Anyway, you're really required to get the release unless you're positive they can't be identified in the shot. Of course, if it s documentary you can always claim "fair use", and more documentarians are using this now than ever before. Michael Moore makes use of the fair use provision more than anybody, but then again, he can afford to get sued.

[Grainy]

thanks for the tips charlie -- man, the whole thing of everyone's image being sacred -- no matter how fleeting-- seems to have totally eclipsed resonable use these days. I can see how someone wouldn't want to end up in some grindhouse movie, but generally it seems like a way to keep the big guy and some crooked lawyers in business, and crush the little guy.

G

[Dimitrios Koukas]

thanks for the tips charlie -- man, the whole thing of everyone's image being sacred -- no matter how fleeting-- seems to have totally eclipsed resonable use these days. I can see how someone wouldn't want to end up in some grindhouse movie, but generally it seems like a way to keep the big guy and some crooked lawyers in business, and crush the little guy.

G

 

If it was me,

I will have just sign people that I wanted to use for continuity to any close shots.

It's not so much like the old days now, people are more get used to the camera, with all the TV stations today.

And if you aren't going for a box office release (who could maybe cause you problems), I am suggesting you to do not worry at all.

It's just that people do have the right to be on a frame or not, and especially if they re walking around with their new boyfriend, and kissing in the street, and their wifes see it on tv.

You can ruin a marriage , have u ever thought about it?

Dimitrios Koukas ;)

[Grainy]

It's just that people do have the right to be on a frame or not, and especially if they re walking around with their new boyfriend, and kissing in the street, and their wifes see it on tv.

You can ruin a marriage , have u ever thought about it?

Dimitrios Koukas ;)

 

Ha! True, and I do respect people's rights to privacy. What I'm really talking about is purely background, not the focus of attention, action.

And on that note, I suppose shallow focus or maybe even a little vaseline on an ND filter would help...

[Ellen D. McCarn]

Something I've seen used is posting a sign somewhere out of frame (visible to people in the area, of course) saying that by walking through the area, you give permission for use of your image. Just make sure you get a shot of the sign where it's hanging so you have proof of it.

[Grainy]

Something I've seen used is posting a sign somewhere out of frame (visible to people in the area, of course) saying that by walking through the area, you give permission for use of your image. Just make sure you get a shot of the sign where it's hanging so you have proof of it.

 

Good one, thanks!

G

[Guest Charlie Seper]

I don't know how well that would stand up in court Ellen but it sounds like a good idea.

 

Grainy, personally I agree with what Dimitrios was saying here. If you're just producing a short or something that you want to show at a festival then its highly unlikely that anyone will think twice about your bystanders, or that one of those bystanders will show up at the festival. If you want to really play it safe then I would only submit the film to a festival somewhere other than the town where it was shot to lesson the chances of anyone recognizing themselves in the movie. Most festival goers are wise enough to realize that shorts are just about newcomers to film trying to get their foot in the door. On the otherhand, if POV would ask to show your short on PBS, then you might want to think twice about those bystanders. :lol:

[Guest]

With all due respect I'll have to disagree with this statement...

 

"Technically you must obtain a release from every bystander in every frame of film."

 

This is not the case. You see wide shots of crowded streets of people in movies all the time, I can make out individual faces, but there is simply no way the producers got a signed release from every individual in the shot. Nor would the courts require them to.

 

A tight shot of one individual is a different story, and a release would be required.

 

Some times even the media will not use people's faces when they think they might be sued because they are showing the people in a non-positive light. For example, over weight Americans is a continuing news story, you'll often see fat people in news stories shot from the rear or neck down. The media does not want to be sued by an offended fat person, since being fat is not viewed as a positive thing.

 

R,

[Guest Charlie Seper]

I got to thinking that the laws concerning this may be statutory because I know that individual states have their own laws concerning whether or not private investigators can use audio when they're video-taping and/or whether or not either the audio or the video could be used in court. I did a bit of searching and found a pretty good web page from: internetlegal.com Click on the first article at the top of the page. The following is some of whats on it:

 

Acceptance

 

Since the Pavesich case, some form of the right of privacy relating to appropriation and/or the right of publicity has been adopted either by statute or court decision in every state that has addressed the issue. Minnesota and Virginia (in Virginia only in federal cases applying Virginia law) appear to be the only states which have rejected right to privacy involving giving unreasonable publicity to an individual?s private life. See, Hendry v. Conner, 303 Minn. 317, 226 N.W.2d 921 (1975) and Williams v. Nathan, 21 Med. L. Rptr. 1339 (E.D. Va. 1993); Brown v. American Broadcasting Co., 704 F.2d 1296 (4th Cir. 1983). In 1998, the Supreme Court of Minnesota overruled prior precedent in recognizing this right. See, Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn.1998).

 

Written Consent

 

To avoid violating these rights, the best approach is to obtain a written consent from each person whose name, likeness, or identity will be included in a film or television program. There are three reasons consent should be obtained in writing. First, unless in writing, some state statutes provide that such consents are not valid. See, J. Thomas McCarthy, The Right of Publicity and Privacy, § 10.6 (2003). Second, there could be a dispute about the existence of an oral consent. Finally, unless the consent is in writing, there could be confusion concerning its scope.

 

Uses Permitted

There are often situations in which it is impractical to obtain written consent to use a name, likeness or identity and one must decide whether or not to use a particular photograph or video for a film or television program. Situations in which such uses are permitted include the reporting of newsworthy events and uses in which no person is identified or identifiable. Courts generally hold that the use of names, likeness or identity in connection with the reporting of a newsworthy events is allowed under the First Amendment which forbids any laws "abridging the freedom of speech or of the press."

 

There are four circumstances in which the use of photographs, films and/or videos is permitted. First, the use of photographs, films and videos of buildings or other structures taken from public streets and similar non-restricted areas in which individuals are not recognizable does not violate anyone's privacy or publicity rights. The reason is that privacy and publicity rights relate to individuals and not to buildings or other structures. See, e.g., Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La. 1979). Of course it would still be important to make sure that the use of the photographs, films or videos of the structure does not infringe someone?s copyrights in the materials or constitute a violation of other privacy rights such as wrongful public disclosure of embarrassing private facts, which is discussed in this paper below, or amount to a wrongful intrusion, not addressed in this article but relating to such actions as peering into someone?s home through the windows.

 

Second, only individuals who are recognizable in a photograph or video have any claim for misappropriation of likeness or identity. Therefore, morphing pictures and videos so individuals are not recognizable eliminates any privacy and publicity right claims. See, e.g., Cheatham v. Paisano Publications, 891 F.Supp. 381 (W.D. Ken. 1995), where the Court said that there was a jury question whether or not the Plaintiff's posterior was recognizable in the particular photograph.

 

In Pesina v. Midway, 948 F. Supp. 40 (N.D. Ill.1996), a martial artist hired to model for characters of the coin operated arcade games Mortal Kombat and Mortal Kombat II alleged that use of his name and likeness in subsequent home video games violated his common law right of publicity. Mr. Pesina?s movements had been captured on video, digitized, and incorporated into the games after extensive editing. The district court granted Midway?s motion for summary judgment in part because Midway was able to show that the public did not recognize Mr. Pesina within the game. ?[A]fter comparing Mr. Pesina and the game character, Johnny Cage, who allegedly resembles the plaintiff, only 6% of 306 Mortal Kombat users identified Mr. Pesina as the model.? Id. at 42. The brief use of Pesina's name in the game (for eight seconds only when a player won), although unauthorized, also was held not enough to constitute a right of publicity claim.

 

Third, photographs, videos, and films taken of participants and spectators in connection with a newsworthy event may be used in photo essays and documentaries of the event. In Cheatham v. Paisano Publications, supra, the Plaintiff was a jean "designer" who wore one of her own "designs" to a Kentucky bikers' convention. She had cut out the bottom of a pair of jeans and replaced it with fishnet fabric. A magazine published a photo essay of the event which included pictures of her wearing her special outfit. She sued the magazine and claimed that it misappropriated her identity. In dismissing her claim, the Court held that the photo essay was a report of a newsworthy event. See also, Time, Inc. and Steve Kagan v. Sand Creek Partners, L.P., 825 F.Supp. 210 (S.D. Ind. 1993). The Court in Cheatham also held that use of the Plaintiff's pictures on T-shirts was not a protected newsworthy use and, if the Plaintiff were recognizable from the picture, then Plaintiff would have a basis for a claim.

 

There are limitations on the use of name, likeness, and identity in connection with reporting news. For example, in the movie "Woodstock" there is an extensive interview with an individual responsible for cleaning latrines. This interviewee sued for misappropriation of his right of privacy. The Court held that he was made an "involuntary performer" due to the extensive interview and allowed the case to proceed to trial. See, Taggart v. Wadleigh-Maurice, Ltd., 489 F.2d 434 (3d Cir. 1973). Additionally, copying a performer's entire performance goes beyond the allowed reporting of a newsworthy event and constitutes a violation of the performer's right of publicity. See, Zacchini v. Scripps-Howard Broadcasting, Co., 433 U.S. 564 (1977). Also, where a performance is staged using actors, such as a professional wrestling match, it is unlikely a Court would hold it to be the type of event to which the rights of publicity and appropriation policy do not apply. See, e.g., Ventura v. Titan Sports, Inc., 65 F.3d 725 (8th Cir. 1995).

 

Finally, use of names, pictures and identities in connection with the production of biographies of newsworthy individuals is permissible. In Harris Matthews v. Random House, 15 F.3d 432 (5th Cir. 1994), the Fifth Circuit U.S. Court of Appeals, applying Texas law, held that a book detailing the author?s and her ex-husband?s experiences as undercover agents did not violate the privacy or publicity rights of her ex-husband. Information concerning their activities and convictions were the subject of news reports. Thus, it was a matter of public record and considered newsworthy events. See, also, Mickey Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2D 790 (Cal. App. 1993), in which Mickey Dora, a surfing legend, appeared in a video documentary entitled "The Legends of Malibu." The Court held that the use of Dora?s picture was newsworthy.

[Guest]

That all makes perfect sense. I remember seeing the interview with the guy that cleaned the latrines in the movie Woodstock, he sued them huh? Interesting, they should have got a release.

 

The bizarre thing about the latrine cleaner is...what did he think was happening while one guy pointed a camera at him and another guy asked him questions? Was he too stupid to understand that he was being interviewed and his image was being recorded? Was he a member of a primitive tribe that had never seen a camera before? If he had objections why did he talk to the film crew for so long? One thing documentarians can do is ask the person for permission to use their image in the final product while the camera is rolling, get them to say yes on camera, and save it. It's not as solid as a signed release, but it's sure better than nothing.

 

At least this way the judge will ask them, "why did you give your consent to the interview on camera?"

 

Well after reading all of that it's clear that in most cases people who have their image used without their permission have an uphill battle in the courts to get a financial settlement.

 

R,

[Grainy]

Great resource, Charlie -- that's exactly what I was looking for!

Richard, I'd guess that the latrine cleaner's case was won not because of the extensive interview at the time but the extensive use of the interview compared to others, which put him into the involuntary performer status.

It does look, though, like if you in good faith don't focus on any bystanders you can probably do what you need to w/o having to touch up frames later.

G

[Guest Charlie Seper]

One thing documentarians can do is ask the person for permission to use their image in the final product while the camera is rolling, get them to say yes on camera, and save it. It's not as solid as a signed release, but it's sure better than nothing.

 

Yeah, that's another good idea. I think the first time I heard of that was while watching the "filming of" (or whatever) on the special features portion from "The Blair Witch Project". They did that a few times during the filming while talking to people on the street at the beginning of that movie. They also talked about some woman who appeared in the film that did a great off-the-cuff interview that they never got a release from because they couldn't track her down later, but they took a chance and used the footage anyway and never managed to get sued.

[Jonathan Bryant]

It's just that people do have the right to be on a frame or not, and especially if they re walking around with their new boyfriend, and kissing in the street, and their wifes see it on tv.

You can ruin a marriage , have u ever thought about it?

Dimitrios Koukas ;)

Yeah more people will see it if he films them, but hey they are out in public view the wife could just as well see it. Doesn't sound like a good marriage anyways.

 

This reminds me of what commedian Chris Rock said "Men get caught cheating with their wifes best friend in town. Women don't get caught because they go out of state on a business meeting or a trip with the girls (wink wink) and cheat with some guy her husband will never know"

 

Both of course wrong though