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People in BG of footage ? Legal issues ?

Les Dittert

Les Dittert

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I shoot mostly non narrative 'world' footage, in the style of Baraka, etc.
Much of this footage has people in it. In fact in countries like India, it would be an accomplishment to get a shot without anyone in it !
So therein lies my question: What are the issues I can run into if the footage is distributed as a feature ?
Would it depend on the country perhaps?
How about the USA, the ultimate pricks of the legal world. Someone in the background of a beach shot in Hawaii for example?

In the BBC series shot in India : "The Story of India" there are people everywhere, there is no way they got waivers from them.
So again, this is for non narrative non speaking people on camera.

I'm confused. Does anyone know how this all works ?
Thanks!
 
Non narrative documentary filming in places where the public is present generally allows for subject matter such as crowd shots as long as the footage doesn't focus on any individuals, and doesn't paint the people in a particular light.

4K and greater resolutions will eventually create cases where this will be raised, because shots where people were previously not reasonably recognisable may now be shots where those people are recognisable.

But the portrayal is the main thing you have to worry about.

For example, crowd shot of busy early market, two different voice overs.

Version 01 VO: as this city awakens people go about their daily lives.

That's probably ok.

Version 02 VO: In this violent city people are terrified that a murderer lurks amongst them.

Less likely to be ok. Wjat determines if it's ok is the company that signs off your errors & omissions insurance.
 
We have to deal with large footage resellers who have given us guidelines on this topic. They simply will not accept footage from us if it poses any kind of risk to them. So, here are the guidelines we have adopted:

Talent releases needed:
-For individuals you are directing. Minors need their parents to sign a release for them.
-If your shot contains a few individuals who are recognizable, even if the shot is not about them.
-Crowd shots where the crowd is being directed or has scripted actions.

Talent releases not needed for:
-Editorial (not commercial) use.
-A "natural" crowd. This would include street scenes, beaches, concerts, sporting events, etc. But how do you define what a "natural" crowd is? This is where the issue becomes less black and white. We have picked the number 20 as a target number of individuals for a natural crowd we will accept. However, if one or two of them stands out as being more recognizable than the others, maybe they are closer to the camera, or the only ones turned toward you, etc., I become less comfortable with it. I always ask myself this question: Is there any way they can argue that the shot is "about" them? If so, I get a release. If it is a natural crowd we are not seeing their faces, I can except fewer than 20. If they are in the shot for only a second or two, that becomes a consideration as well, as it becomes harder to argue that the shot was about them. I wish I could be more specific but each shot needs to be weighed accordingly.

I asked my resellers specifically about other countries, especially india, and the rules are the same. They feel that technology is such that more and more people are likely to view media, and possibly see themselves. However, when we shot in third world countries, we just did our best, but found the rules a little too hard to keep perfectly. Not everyone can write their signature, so we just ask them to write an "x" which will suffice. I personally found it easier to accept more risk if it was a third world country.

So far our guidelines have worked as we have never(over 20 years) been sued for lack of a talent release. However, if a client or reseller disagrees with our guidelines, they may not accept the same risk we are willing to, and will not license the shot.

I hope that helps,
Phil
 
NOT A LAWYER, but the key points are demonstrable harm, use for financial gain or evidence of special effort to get a particular individual into the shot.

Generally speaking, people in the background in public areas have limited expectation of privacy and therefore lack standing to bring action. If a particular person is "featured" in some way - and - is portrayed as an object of ridicule, or juxtaposed with other elements in such a way as to imply a particular point of view, etc then they might be able to argue injury.

Be aware that if someone, even in the background, is both recognizable - and - could be seen as endorsing or otherwise positive about a product or service being promoted then they can claim use of likeness for commercial purposes without compensation or release.

There are some other protections for political speech, satire, etc but they generally do not apply if the media in question is an advertisement. There's also some relief for producers if the person in the background is engaging in "normal" legally protected activities similar to others around them. This same principal should be considered in terms of wild track sync audio captured in the field. If one person's voice is clearly distinct from others in a group - particularly if you can ID them because you can see their lips moving visually - then they might be able to seek relief.

I would also note that if you have actors/subjects in the foreground that are the focus of the scene (literally and figuratively) then its much easier to claim someone was "just background". I've shot some lifestyle stock where getting releases was a bigger priority as the "passers by" were essentially the "subjects".

Cheers - #19
 
In 30 years of shooting I have only once been involved with a background person complaining and that was a Station Promo and the person was concerned his boss would see it as he was taking the day off sick. The Station cut him out and was all good. Unsure of all territories but assuming a complaint was received which is very very unlikely probably the worst thing you would need to do is offer fair payment and/or remove them from future publication. If you offer them this and they knock you back and they take a civil action the courts are unlikely to award them any punitive damages assuming they are successfull. In Australia I am unaware of this ever happening. Much of this is driven by legal paranoia and is not reflected in real world experience. While everything is possible its extremely unlikely and if it does it can probably be easily sorted.
 
Thanks for all the input Guys. In my case there are never any directed people, they are in natural looking activities that are neither odd looking or in any way compromising.
An example is a adult , side view, on the beach with a fishing pole, his height about 1/3 screen. Some kids on a beach in random screen positions playing, about 1/8 screen height. Not the focus of the shot, the shot is more of a wide 'see the beautiful beach scene' type of shot.
There does seem to be a lot of 'grey area', that's for sure.
I'm thinking of power windowing them to darken or motion blur them to remove the 'recognizability' .
 
I shoot Baraka style footage too, and some of it ends up as stock with Corbis Motion, who are extremely fussy about model releases. The rules are more or less what Phil Bates has stated above.

Usage is key. Advertisements especially are the biggest targets for a hungry lawyer, as there is the 'usage for profit or endorsement' angle. Editorial is almost unimpeachable. Something along the lines of Baraka/Samsara fits halfway between editorial and art, but I still make a point of giving the main subjects a bit of cash. I'm positive that Ron Fricke's producer gets releases every time.

I did a trip in Myanmar recently where I filmed a lot of illiterate street people and used the footage for a track a music collaboration I'm involved with. Almost every subject of the shot has my money in their pockets, witnessed by the rest of the crew. This video was accepted by Landscape HD TV on the basis that suing was highly unlikely and that it's 'art' as opposed to a commercial venture.

 
Interesting note however: I watched the new movie "escape from tomorrow" recently, this movie was filmed in Disney theme parks with a covert film crew. There are lots of people in the shots, and they are the sue happy American types for the most part.
I wonder how that will work ?
 
Les Dittert said:
Interesting note however: I watched the new movie "escape from tomorrow" recently, this movie was filmed in Disney theme parks with a covert film crew. There are lots of people in the shots, and they are the sue happy American types for the most part.
I wonder how that will work ?
Click to expand...

Out here in lalal land, I have seen signage postings, at theme park entrances, noticing film activity, etc..

Thank you very much

Fury
 
That film is pretty much daring Disney and others to sue them. I think the distributors have taken that danger on as a calculated risk, because of the free press the films shooting style has generated.

Basically they are taking the risk despite lack of releases... And probably banking on the film making enough cash to be worth the risk, but not enough cash for every individual in the film to consider lawyering up to take a chunk.

At anyrate, it'd be interesting case, what with them being able to point to youtube videos as examples of incidental capture which people make money off all the time, that don't have releases, I think their thought is they'll be protected by a greater culture expectation to be filmed in public.
 
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