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