More REALITY: Right to Privacy vs. Right to Publicity

This post follows from a question on the last post on Reality Clearance Guidelines.

The question was this:

"Thanks for these guidelines. Curious, though: I've read that people who are captured on film in a public place had no expectation of privacy and therefore would not have a case against you without a release. Can you comment on this? Any cases where this has been tested?" (from filmmaker Dave Gardner, on Linkedin).

And here's my answer:

Hi Dave... yes, that is a good question, and an argument I've heard as well. There are more issues than "privacy" when exploiting a film, although that is one of them.

Publicity rights are different from privacy rights. The following quote from the Library of Congress website makes this distinction:

"The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation."

The above article goes on to point out that publicity rights are regulated by states. California, for example, has a very explicit set of laws due to the entertainment industry presence here. Other states, as I understand it, do not so regulate. But, we are interested in risk reduction and the freedom to distribute broadly in TV and film, and when we talk about Clearances. Here's what they say:

"Privacy and publicity rights are the subject of state laws. While many states have privacy and/or publicity laws, others do not recognize such rights or recognize such rights under other state laws or common law legal theories such as misappropriation and false representation. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person's identity in order to create a false endorsement."

On the other hand, supporting your question is the following quote from the Center for Social Media website, a publication called "Yes You Can!" (you can download it as a PDF) written by Peter Jaszi, Washington College of Law:

"In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release."

However, note that he's talking about documentary and non-featured use, here.

If you decided to make a reality program about your neighbor in his daily routine, and followed him around out in the street all day long, for a month, would you be able to exploit that footage without getting a release for him or compensating him?

I wouldn't try it, based on the right to publicity, even if you aren't violating his privacy rights. You would want a release and the distributor of your program would no doubt insist on it, as well.

Any lawyers in the room? Feel free to chime in...

-Keith

Clearance Guidelines for Reality TV

Producers, cameramen, post supervisors and editors should have knowledge of clearance concerns. Why? So that they can get the creative result that they desire, without having to risk losing great footage or key scenes that move the story forward.

When I was working on the Switched! TV show (ABC Family), I compiled a handy list of clearance rules called the Top 10 Clearance Guidelines for crews to watch out for when producing/shooting/editing. For the life of me, I cannot find that list and this is my best effort to re-create it. (I did actually think of 10 points! Whew...)

Here are some basics that apply to the Reality and Documentary world.

1) Lose the music. Make sure that you don't shoot key scenes over a blasting U2 song that is going to cost $$$ (more than you want to spend, believe me) to license. What to do, instead? Bring your own library music to the scene (the house party, or coffee house, or bar shoot). You can easily find tracks that will do the trick. You will pay a needle-drop fee (meaning that you will pay for that track to use in your show, without recurring fees to licensors or artists). And you will get the scene with the music you want, and no worries about a sound track married to music that you can't afford!

2) Watch the crowd scenes. There are various ways to handle these, when needed. Use area releasing, i.e., a large conspicuously placed sign that tells people that there is filming taking place, and that their entry thereupon constitutes their consent to film them and use their likeness in the program. Make sure you shoot the sign, pan to the crowd and/or venue, and pan back to the sign. Note it on the tape log... because that is a legal protection for you in the future. Also, since minors are beneath the age of consent, they aren't technically covered by an area release. So, don't shoot them, or get them released, with a parental consent!

Alternately, establish crowd scenes by shooting backs, feet, and avoid shooting their faces. This is good for sidewalk shooting, crowded hallways, mob scenes, drive-by's... where releasing isn't possible. Don't shoot them head-on. Go for their backs, torso's, etc. This may sound dumb, or unworkable, but I'll give an example. On a show about fat kids, starring Shaquille O'Neal, producers shot a lot of footage of fat people on the beach, at ice cream concessions, etc. Did we need to see their faces to make the point? No! Just their chubby bodies. :)

3) Minors. OK, these are of concern in any shoot. The reason is that legally, they cannot sign a contract that is binding. There are decisions that have come down both ways, where minors are concerned. But, Clearances is concerned with reducing risk as much as possible. You don't want to have to defend yourself against a lawsuit, or risk an E&O (Errors and Omissions insurance) claim, or denial of coverage. So, make sure that the minor AND the parent sign a release, and make sure that you release every minor that appears on camera. No exceptions.

4) Blur. If you cannot release someone in a key scene, and you haven't been able to get a consent, the safest thing to do is to blur the un-released people, if they are recognizable in the shot. Soft blurs and long shots can be used where you are just doing establishing shots, to minimize risk.

5) Logos. Every producer will tell you to avoid shooting logos, on t-shirts, ball caps, cars, equipment, in restaurants, on drive-by shots, you name it. No logos! Do you want to know why? Two words: Ad Sales. Even though you may not care about logos, and the manufacturers probably don't, either, the ad sales department at the network WILL care. Their alliances with major brands will be in conflict with the appearance of logos, prominently in your footage. So, avoid the major, national brands most of all (no Starbucks coffee get-togethers with signage everywhere, MacDonald’s excursions with the name and logo mentioned and visible at every turn, or Coke cans sprawled across the kitchen table). Instead, use mom and pop locations, local brands, and lots of greeking tape!

6) Release everyone. Hire a local PA to go out and put them in charge of releasing people. Give them a summary of the rules (as laid out herein, and any more that you add) so that they know what to do. Give them a Polaroid camera so that they can take pics of every person they release, and attach the photo to the release. (It will save you so much time in the edit bay that it is worth every penny you spend on the camera and film). Use carbonized forms if you have to shoot kids without parents to hand. Get the kid to sign, and get his address and phone number. Then you keep one copy of the release and give the other to the kid and tell him to take it home to the parent to sign. Tell him/her that you won't be able to use it unless the parent signs! And he won't appear on TV! And he would hate that, wouldn't he/she? Of course.... and then you follow up back in the office until you get the release. The rule we used on Switched! was "Focused and Featured." If the camera focused on someone, or they were at all featured in a shot, they had to be released. Otherwise they were blurred. (If you don't care that they are in the shot, and can be lost, then you don't need to release them).

7) Obtain location releases. Your release PA can handle these. Simple enough to get. If you are shooting outdoors, give a call to the local film office and see if you need a permit. Many cities require none, or they will help you to pull one if one is needed. Locations like airports may require them, as will large metro areas, depending on your crew size. Watch out for key landmarks like the Walk of Fame in Hollywood and Grauman’s Chinese, as anything more than establishing shots. If you feature them, you should get them released and may incur a fee for doing so.

8) Be careful of inadvertently shooting artwork in the background of shots. So, if you set up an interview, don't do it with a Picasso in the background, or even a lesser-known work of art, that appears in the entire interview. You will end up having to re-shoot. Get your own artwork that is original, if needed, from a prop house, etc.

9) Watch out for posters in kids' rooms, or other depictions of famous people. Technically, they are not free of copyright for the photography, and the artist also has rights that can be violated by including them in your program.

10) Watch out for photographs in general. Get releases for photos that appear in your shots (a photo release from the photographer, and also get anyone appearing in the photos to sign an appearance release).

So there's your all-new, Top 10 Rules for Reality clearances, equally applicable to documentaries that might be headed for TV broadcast.

Happy shooting!

Google Book Search: A Great Resource for Out of Copyright Books

Producers who would like to draw on the well of out-of-copyright books to adapt for screenplays (think the entire Jane Austen series: Pride and Prejudice, Sense and Sensibility, et al) can find these free on Google Book Search.

Not only filmmakers will benefit, as Web users will also be able to download and use a large archive of digitized media available on Google, including free books from its out-of-copyright selection.

Google Book Search deals with three categories of books, which can be a great resource for screenwriters and developers:

1) In-copyright and in-print books, i.e. books that publishers are still actively selling, the ones you see at most bookstores. Google has in the past referred these searches to other sellers like Amazon, but will be soon be set up to sell these directly, cutting out the middle man.

2) In-copyright but out-of-print books, which aren’t actively being published or sold, so the only way to procure one is to track it down in a library or used bookstore. This is a way to find books that simply couldn’t be found otherwise. Many of these books will be preview-able on Google, and available for purchase.

3) Out-of-copyright books. Google currently has 500,000 books available on Sony Reader (Sony’s version of the Kindle being marketed by Amazon) through a deal it made with Sony to make available its library of digitized books printed before 1923. That’s twice the number of books which are available on Kindle, currently.

The controversial Google archive had to overcome lawsuits by publishers and author guilds and finally agreements were reached in Fall, 2008, so that the project could proceed.

Google Book Search tool also allows users to embed material from books into websites and blogs. The Google Preview Wizard helps you “quickly, easily, and reliably integrate previews with your site.”