OT - Filming in Public

A fellow videographer I know asked this question and wanted to know your thoughts:

"Ok, the scene: You've set up to shoot three actors in a public park. It's a fairly wide shot with two of them seated at a public chess table playing a game and the third person standing and looking on. In the middle of the shot, a woman walks by behind the actors... just some regular person out about her business in the park. In reality, it's the most natural thing in the world for somebody to be walking by, since it's a public park, and actually looks pretty good in the shot.

Problem is, she comes and goes quickly and you have no idea who she was, so obviously she didnt' sign any sort of release form, etc.

Can you use the shot in your film?

I mean, she's only three or four feet behind the actors and her face is clearly visible so that anybody who knew her could easily identify her. But then again, she's out walking in a public place. I know in some movies you see (probably stock) footage of city scenes with hundreds of people walking along the streets. Are they all paid extras, or is it just a given that if you go out walking in public you may be captured on film without your express written consent and compensation?"

Interesting question, I'd like to see the answers...!



Marcus T
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Quick answer: You can use it and she can sue you!

There's plenty of examples of "unrelased" images in movies, docs, TV shows, etc. It just comes down to how concerned you are about getting sued. If you're feeling lucky, and don't care about defending a lawsuit which may never arise, then go ahead and use it. On the other hand, if a lawsuit, or the threat of one, would do serious harm to your lifestyle, then you may want to take more care in controlling the contents of your frame.

Just 'cause it's a "public park" is no defense. She didn't ask to be in your film, and has the right to protect her own image.

This issue gets "fuzzier" (literally) when you're talking about very wide "crowd" shots. I think someone would have a harder time proving damages if they were only one face in a hundred in a frame versus a single, identifiable closeup.

Still, if you're staging a "walk and talk" on a public s idewalk, you may want to have paid extras surrounding your stars.

mark

Quick answer: You can use it and she can sue you!

There's plenty of examples of "unrelased" images in movies, docs, TV shows, etc. It just comes down to how concerned you are about getting sued. If you're feeling lucky, and don't care about defending a lawsuit which may never arise, then go ahead and use it. On the other hand, if a lawsuit, or the threat of one, would do serious harm to your lifestyle, then you may want to take more care in controlling the contents of your frame.

Just 'cause it's a "public park" is no defense. She didn't ask to be in your film, and has the right to protect her own image.

This issue gets "fuzzier" (literally) when you're talking about very wide "crowd" shots. I think someone would have a harder time proving damages if they were only one face in a hundred in a frame versus a single, identifiable closeup.

Still, if you're staging a "walk and talk" on a public s idewalk, you may want to have paid extras surrounding your stars.

mark

At the very least, that person can ask a judge to put an injunction on your film to prevent it from being shown anywhere. It will almost certainly be granted, and your film will grind to a halt. No distributor would want to touch such a project.

> is it just a given that if you go out walking in public you may be captured on
> film without your express written consent and compensation?

It's different if you're a news show. But if you're talking about a narrative feature or a documentary, especially one that's to be "exploited" (sold, broadcast, played on the web to make a name for yourself), then you're liable. As Mark says, that woman has a right to control where her face appears.

If this is a documentary, your best shot is to try to blur or crop out her face by blowing up the shot. Such a lawsuit will depend on the fact that you can recognize the plaintiff in the shot. If this is a narrative, you should use an alternate take, or stick to close-up singles.

Reshoot the scene. And next time have those release forms handy.

Incorporate the project and sell it outright.

Blur her face--Like on cops ect.--

Are you FILMing or TAPEing? Two different things dontcha know. ;-)



Kevin Monahan
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Jay's on the right track...I would use a very subtle tracked blur...not the scary "mosaic" or harsh "cop" blur, but a smooth feathered tracked composite blur. You want this effects to be invisible.

If it's a walk-through, she probably isn't in the shot that long. I would do this effect in After Effects Pro 7 for sure.

- Joey



When life gives you dilemmas...make dilemmanade.

i always wonder what that lawsuit would look like and what exactly the 'damages' would be?

has ANYONE ever heard of anything like this ACTUALLY develop into litigation?

fp

Interesting story. I read about a case that went to court involving a street shot in NY used in a major movie. In the shot one of the cars that drives by is a convertible with the top down, inside a man and a woman.

A woman who went to see the movie saw the man and woman in the convertible, the man in the car was her husband, the woman in the car was not her. She sued her husband for divorce and he in turn sued the film company for his problems.

The judge ruled in favor of the film company.

Maybe not relevant but interesting.

--ken

Wasn't there a woman who was attending a pro game (I think it was football or baseball) and you know how some camera shots shoot the fans, some cheering or some not realizing that they were being taped? Well this woman was supposedly picking her nose and then sued the station for airing it?

Anyone hear of that? I'm sure I remember that story on the radio or something.

Hi Darren,

I saw that football game. Small world.

Did not hear about the law suit that follow. Wonder how it turn out.

--ken

how about you go back to the park everyday for the next week at the same time.
the woman will walk by again,
and you can get her to sign something then.

this is partly fantasy, of course!

"you want me to sign a release form, and there's no film crew around? what are you some sort of creep!"


nick

<<what are you some sort of creep!">>>

"No, worse. I'm a producer." Then you hand her a DVD of that scene with your contact information. Offer to pay scale up front. *Nobody* can resist that.

Koz

Hi Koz,

And what would 'scale' be for a five second walk through?

Inquiring minds want to know.

--ken

there is no way the nose picker won THAT lawsuit. she was also picking her nose IN A STADIUM. if that shows that she had no expectation of privacy WHAT does?

i personally think there are no such lawsuits unless one has damages. and exactly what damages can someone aquire simply by being photographed in public? just look at the guy who wanted to be compensated for damages he sustained cheating on his wife. court chucked it.

TV blurs out stuff as per instructions from the incredibly conservative legal dept. they can't risk perceived damages. say if someone is wearing a shirt that says 'coka cola' and the does something un-coke like while wearing the shirt.

i would really love to hear of one true, successful lawsuit filed from a citizen vs ANY production company or entitiy. the citizen can even be a lawyer! i'm not being snarky. i'm curious and serious..

fp

As someone already mentioned just that fact of putting your film in a position of possible litigation, could tie it up in the courts for years. Is it worth the risk? Another thing the judge may ask to see is your PERMIT for shooting in a public park. Most productions that do this will have extras, earning $54 a day, to walk by in the background. They will also have a retired motorcycle cop and a couple of PA's standing by to stop the public from entering the shot, so as to avoid this type of situation in the first place.

It breaks down into Feature Film, Television Show, Commercial, etc. etc. but on a best guess, it's going to work out to somewhere between $50 and $150. I also think it's by the day. Five seconds doesn't count.

She owes you 7:59:40:00 of screen time.

That's to be a recognizable animated prop with no dialog.

Our regularly working actor went home because it's after 5P Pacific. I'll ask him in the morning.

Koz

<<< And what would 'scale' be for a five second walk through? >>>

No more than $50 to $75 bucks - extra scale.



When life gives you dilemmas...make dilemmanade.

"i always wonder what that lawsuit would look like and what exactly the 'damages' would be? has ANYONE ever heard of anything like this ACTUALLY develop into litigation?"

Actually yes...the recent movie RENT...they filmed a guy on the street for the "student film" inserts into the movie and said they were just making a "student film" which, they were, kindof...to insert into a Major Motion Picture.....got him to sign a release and no pay...

He saw the movie and sued....think they had to cough up some extra dough after that.

Andy

The law we're all talking about here and the reason for the release forms is called the Right to Publicity. Currently there is no federal protection for the Right of Publicity, so the law varies from state to state. Some states only protect the publicity rights of those who are already famous. Others protect any individual. I'm not sure which state you're filming(taping) in, but I'm in San Diego, so I'll enlighten the group on California's Right to Publicity statute.

By the way, here's the link to where you can peruse this information in much more depth:

[library.findlaw.com]


In California, any individual has the right to control their image, likeness, yaddah yaddah. If you film(tape) someone and intent to use their image, voice, likeness etc. to profit from merchandise, goods or services, you must get their consent.

However, and you should read the link carefully, there are some caveats that apply.

One - The person has to be identifiable as an individual rather than members of an identifiable group (ie: crowd on the street, in a stadium)

Two - The burden lays on the so called "injured person" to prove that they were harmed or incured damage as a result of the publication of their image.

As this applies to your situation, I don't think you really have to worry much. So long as the person was not caught in a compromising position that could suggest embarassment and therefore damage, she would likely find it difficult to get any kind of ruling in her favor since she would have to prove that her walking in front of your camera caused her some punitive damage.

Also, since she isn't the subject of the shot, or of the movie, you can argue (if it came to it) that she is not identifiable as an individual but is rather exactly what she was: a person walking in a park, and you are not profiting directly or indirectly from her image or likeness.

However, having said that, it really pays to get release forms if only for your own piece of mind.

Andy

BTW: As far as the football game example goes...it's doubtful that woman got anything for her lawsuit. The statute makes provisions for sporting events. They could have zoomed into her nostril and she wouldn't have a legal recourse. But that's only under California Law.

Andy,

Great stuff, thanks.

--ken

I don't agree with all of what Andy's suggesting, so I'd like to offer some views in terms of what I've learned about copyright law from an entertainment lawyer who gave a master class on the subject:

> As this applies to your situation, I don't think you really have to worry
> much. So long as the person was not caught in a compromising position that
> could suggest embarassment and therefore damage, she would likely find it
> difficult to get any kind of ruling in her favor since she would have to prove
> that her walking in front of your camera caused her some punitive damage.

I'm fairly certain that "punitive damages" actually don't refer to this. Look up "punitive damages" and you'll get some definitions along the lines of:

"Money awarded to an injured person, over and above the measurable value of the injury, in order to punish the person who hurt him."

"Damages in excess of actual damages that are assessed as a form of punishment. Typically, punitive damages apply when a Defendant's behavior is found to have been willful or malicious."

"Money damages awarded to a plaintiff in a lawsuit aimed not to compensate for harm to the injured party but to punish the defendant for his or her illegal conduct."

"Over and above the measurable value of the injury". This means that your film doesn't have to make a cent in profits, which the plaintiff caught on your camera would feel cheated out of. That would be "actual" damages. Punitive damages can result whether you were trying to exploit (or did exploit) the film for profit, if the court deems that you've done wrong in including a person's image without consent.

> Also, since she isn't the subject of the shot, or of the movie, you can argue
> (if it came to it) that she is not identifiable as an individual but is rather
> exactly what she was: a person walking in a park

I don't think the law makes this distinction. The important thing is "Can this person be identified via physical features visible in the shots?" If you don't see the person's face at all, even if the plaintiff knows it's his/her body in the shot, s/he can't prove that the image captured is actually him/her. As far as I know, it's similar to copyright law: Unless there's an on-paper agreement, two collaborators on a piece of intellectual property has equal ownership of the resulting work, even if one person only did 10 per cent of the work. I think the amount of time a person appears in the film will dictate how much in damages would be at stake, but I don't think you can get away with saying "You're not the important part of the shot, so we can assume you won't mind".

Even if there are arguments you think you can make, the fact is, you won't be able to exhibit or exploit the film while litigation is going on, because the first step a plaintiff takes would be an injunction against the film, which will be enforced until the case is resolved. By the time you untangle the legal problems, your film may be well past its expiration date.

> BTW: As far as the football game example goes...it's doubtful that woman
> got anything for her lawsuit.

I'm sure that's the case as well. It's a public event, and the woman would have a very hard time convincing the judge that she didn't know there would be cameras there.

Basic point: Disguise that person by blotting out her face, or don't use the shot! Especially don't put the shot in hoping people won't notice!

"Actually yes...the recent movie RENT..."

wow. i never saw rent but now i'm curious to find the story.

all said and done, slighty blur (if video) would do the trick.
fp

For any Aussies reading this thread, this is from the Arts Law Centre of Australia.

____________________________________________
"In Australia there is no specific law aimed at preventing the unauthorised use of your image (unlike the United States (US) which has a law called the right of publicity)."
___________________________________________

But there are laws against audio recordings of private conversations, works of art, defamation of business, broadcast music and lots of other stuff. It's a nightmare really, but at least if someone walks past in the background of yuor shot in a public place, you're OK. So far.

WOW! Thanks for ALL the feedback and stories... This information is very helpful to him... oh and me too.

I may have mispoke by saying punitive damages, but I still stand by my advice. It's highly unlikely that a person would be able to prove that a 2-3 second shot caused them damage unless they were doing something that could have placed them in a compromising position as some of the above examples pointed to.

However, derek is right that the injunction would likely be the first thing filed in the case.

Andy

> It's highly unlikely that a person would be able to prove that a 2-3 second
> shot caused them damage unless they were doing something that could
> have placed them in a compromising position

The plaintiff doesn't have to prove that s/he has been hurt by the portrayal. His/her right to control his/her own image is enough. If the filmmaker is proven to have done something wrong, he could be slapped with punitive damages even if actual damages are low.

Every case produces different results, of course, but it's generally accepted that you don't allow a face which hasn't been cleared to appear in your shot.

Don't risk it!

Right...doesn't matter if she wins the case or not...the injunction imposed while a judge & / or jury hears the case could kill the project DEAD.

Find her...pay her...get a release signed.

- Joey



When life gives you dilemmas...make dilemmanade.