Ah summer. What this means to me besides working on my tan is that football season is just around the corner. If I had my druthers, I would make a documentary about this year’s Cal football squad, as I am certain that they will win the BCS and hang a century on each of their opponents. I can see the shot right now—Coach Tedford offering up a rousing victory speech before legions of adoring fans. To do this, I’ll need a signed release from coach, but the legions of fans—no time to ask for releases! How do I capture the most important moment for all mankind?
No matter what kind of film you’re making, eventually all filmmakers encounter the common legal problem of filming in a crowd. This kind of filming collides head on with individual privacy rights, and for that reason it can often be a filmmaker’s nightmare to film on a busy street. Here are some guidelines to make sure you don’t manage to entangle yourself in a legal battle or have to cut some cinema gold from your soon-to-be-award-winning film.
Any individual walking down the street has what’s known as the right of privacy. This lies in the fact that people have a reasonable expectation that they are not being filmed when they are in a public place. The right to privacy protects individuals from their image and likeness being exploited for commercial use without their consent. Though it seems to make rational sense that anything someone does in public should be fair game for you to film and use, the reality of it is that you, me and that drunken idiot that stumbled into your shot all have in common a fundamental right to privacy.
The best way to insulate yourself from possible infringement on a person’s right of privacy is to obtain a personal release from the person being filmed. You always need to obtain a release from someone if they’re speaking in your film or become the focus of the shot for more than a couple seconds. Of course, shooting in crowds sometimes makes it impossible to get releases for everyone being filmed—you’d spend more time chasing after people, release in hand, than actually making your film.
If you are faced with the particular problem of shooting in a crowd and being unable to obtain releases for each person, there are a few possible loopholes to the general rule. If the purpose of a shot is someone in the crowd, then you’ll always need a release. However, if the images of people in the crowd are incidental to what you are trying to do, it might be OK to film them without a personal release. But be forewarned: this is not foolproof. You’ll need to consult an attorney if you’re relying on the people in the crowd being merely incidental to the shot, just to make sure. Let’s say you’re making a documentary about Dungeons and Dragons and you shoot a convention, panning a crowd in all their pasty nerdiness. And let's say, lo and behold, one of those faces is me, secretly taking my 35th-level paladin to the limits—I will not appreciate seeing myself in your film, without my permission, to the ridicule of my jock friends—despite the fact that it may be incidental.
Say I was actually going to film a documentary about Cal football and the scene in which Coach Tedford is interviewed is at a stadium with a huge crowd of sports fans in the background. As long as Tedford is the focus of the shot, some fleeting glimpses of fans in the background are merely incidental to the overall purpose. The main question to ask yourself here is whether the person in question was the point of the shot or merely coincidentally present in the same frame as your intended focus. As long as they’re in the background, it’s probably OK to film them without a release. But if Coach Tedford walks off set and you zoom in on someone’s face holding up a sign, cheering ecstatically, you’ll need a release for that person. They’ve now become the point of the shot.
A common practice in the film world is to post signage strategically in a public area in an effort to notify people that they will be filmed. However, this does not absolve you of responsibility to get proper releases when an individual is the focus of your shot. Signage can be effective in putting individuals on notice that their voice or image is being filmed. Therefore, an argument can be made that the expectation of privacy on which the whole right to privacy right hinges is dispelled by knowledge that one is being filmed. Posting a sign when filming in a public place is a good idea because it helps stop potential problems before they even arise by giving people the option to avoid being filmed entirely. However, make sure that you still obtain a release when making someone the point of your shot, regardless of whether or not a sign was posted.
If you’re going to use signs to make people aware that they are entering an area where you will be filming, each sign should be large enough so that absolutely could not miss it, and contain some wording that notifies the public that their likeness could be used in your film. A large, bold font is also a must, since the sign has to be very readable to be effective. Make sure to post the signs in places that are visible, and you should definitely post them on all sides of the filming area (say, on each side of the street segment you’re filming, so people can see it no matter what side they enter the area from). But again, a release is always preferable to just posting signs! Also, you should make sure to film the sign and the area that you are shooting so that it is clear that signage was posted and that anyone who entered the filming area would be aware that filming was taking place.
A couple of years ago when I was at Sundance, a group of people were filming an episode of Entourage on Main Street. They had signs everywhere letting pedestrians know that they were shooting, and, by walking into this area, they were consenting to being filmed. You would have to be blind not to realize it. I walked through, but didn’t notice myself in the background of that episode. I could have been, as the pedestrians were completely incidental to the scene and I was effectively on notice that I was to be filmed. But if, for example, when I was walking by, I slipped on ice and split my pants in the process, it would be comedy gold. I would no longer be incidental, but probably the focus of the shot, and they would need a personal release from me if they were to use it. Let’s say I won’t sign, but the moment is just too golden not to use. In that case, my face would have to be obscured enough so as to not violate my right of privacy.
If someone refuses to sign a release, they are effectively asserting their right to privacy. If that is the case, the only option left if you want to use the shot in your film is to blur out or obscure their face and any other distinctive features. In that case, you might also consider using a shot that focuses on other parts of the body. This may seem strange, but if the purpose of your shot can be achieved without showing faces, you might want to avoid the face entirely. Since my pants splitting open in front of the Entourage cameras is the funniest part of the shot, maybe you don’t need to show my face or any distinctive features in order to achieve the comedic effect of the fall. Keep in mind, however, that just because a person’s face isn’t shown doesn’t mean they are not readily distinguishable in some other way. For example, zooming in on somebody’s tattoo would probably require a release because it is showing a distinctive part of the body. So if you’re going to use this kind of “creative filmmaking” to get around having to get a release, make sure that there isn’t some other way your subject could be readily identified.
The rules here are the same whether your film is a documentary or narrative piece, but documentary filmmakers will run into this with significantly more regularity. Because documentary shots are often spontaneous, it’s often difficult to know in advance exactly who and what you’ll be shooting and where. So in documentaries, it’s even more important to pay attention to when you need to get proper releases for people to avoid having to blur out faces or remove the scenes entirely.
While filming in public can seem somewhat legally daunting, it’s also a valuable part of the creative process and stressing about releases shouldn’t get in the way of the shots you need. You have to be careful though: When people see themselves on screen, even if it’s just a fleeting moment, they often see dollar signs. That being said, if you are making the documentary about Cal’s juggernaut of an upcoming season, who would sue you—everyone on earth loves Cal football. . . .
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