Question about "Releases" for Documentary & Stock Shooting

[M Hsu]

But would the guy on the motorcycle have any kind of case? And if so, on what grounds?

That's up to the judge to decide. There is legal precedent in both directions. Either way, if you are sued, you are going to court. Even if you win, you're going to have to have to countersue to get him to pay your attorney fees. And then even if you win that, you're going to have to hope he actually has the money AND pays it. As anyone will tell you, winning a lawsuit is only half the battle, the other half is actually collecting the money. In some cases, the agrieved party can ask the judge for an injunction preventing distribution of your movie. In a best case scenario you will lose a lot of time. Even if you think you have an iron clad case, EVERY attorney will tell you that there is a chance that you may lose. Where the trial is for instance can make a huge difference. In los angeles or new york where the judges are familiar with entertainment law is a very different case than in paducah kentucky. (nothing against paducah)

There are shows like jackass and borat that take the chance, but they do pay for it in lawsuits and paying off people. If you're going to skip releases you have to set aside money for that, or get specific insurance for it.

Getting a release isn't typically hard and if the person is very resistant to signing one, then that's the kind of person who just might sue you when they see their picture 40 feet high on a billboard. Asking someone to sign a release is also respectful and a basic courtesy. Most stock guys I know carry a release and a pen in their pockets.

In the end, not getting releases is a matter of calculated risk. If it's a crowd at a football stadium from across the field, you probably don't have to get them to sign off. If it's a guy on a motorcycle in a third world country who most likely will never set foot in a movie theater you might be able to swing that too, but just understand, no matter how small, it is still a risk.

You should consult an entertainment attorney about specifically what you want to do, perhaps there's a get out jail free card for documentaries

 

[Phil Bates]

But would the guy on the motorcycle have any kind of case? And if so, on what grounds?

jpp is right, it's using someone's likeness for commercial gain. Also, the other point is correct, if it is for news, called "editorial" it's a different story. Unfortunately, stock footage falls directly in the commercial category -- (some stock houses have an editorial category, Artbeats doesn't).

The statement that stock libraries will require releases for absolutely every face you see, is not quite correct. We have been in discussions with Getty on this very issue and they do not require releases for "naturally occurring crowds". I consider a crowd at least 20 or more people where one does not stand out, (so the argument cannot be made that the shot is about him/her). Crowds that are "set up" or choreographed do require releases for everyone.
We have adopted Getty's policy as our own since they distribute our footage.

Another issue to be aware of is trademarks/logos. I avoid shots with individual logos (example: an athlete, with a Nike ball cap). Groups of logos are like natural crowds in my opinion. I make sure they can't argue it's about one single trademark.

I have heard mixed opinions on shots of property. Supposedly, a case involving an image of the Rock and Roll Hall Of Fame should have brought an end to this problem of having to obtain releases. My lawyer (intellectual property attorney) says it shouldn't be a problem as long as you are not shooting while standing ON their property. It's interesting that every time I have had a question about a shot and showed it to the lawyer, he has said don't worry about it. However, I have heard of strict control of certain buildings like the Space Needle, the Eiffel Tower (at night only), the Chrysler building and the Empire State building. Casinos in Vegas are very sensitive too. I am just careful to shoot multiple buildings in each shot. Getty requires a property release if it is a lifestyle shot on someone's lawn.

Once, I was shooting aerials and got a great shot of a beautiful upscale home. I asked the pilot what he would think if it was his house and he saw it broadcast. He said he would be mad as hell. I thought he had a point, so I decided not to use the shot, and have strayed away from capturing those kind of images since.

We do keep releases with us at all times and chase people down if we think we have a good shot. Most of the time you don't have to pay them.

In ten years of selling footage we have never had a problem, but we still have and E&O policy just in case.

Phil
http://www.artbeats.com

 

[Tom Lowe]

Very interesting!

Man, I need to learn more about all of this stuff.

I wonder if my Baraka-style project could fall under the "editorial" banner? I would probably try to get releases in most cases anyway, though, so the footage would be more viable at stock houses.

 

[NateWeaver]

Very interesting!

Man, I need to learn more about all of this stuff.

There's a lot to know, and the real-world of professional work for large companies is full of these requirements.

When I work for a particular large record label, they have VERY specific requirements about what releases are needed (both personal and locations) and how they are delivered. In fact I do not get second payment on a job after the shoot until all releases are inventoried and turned in.