A specific question about model releases (or lack thereof!)
 

Sorry if this is a common question but my searches have turned up nothing so far. Maybe I am using the wrong keywords.

I am working on a documentary about bodybuilders. I recently shot footage in a gym. We had permission from the gym owner to shoot there. I did as much as I could to avoid shooting the other people in the gym but the place was somewhat crowded. Upon reviewing my footage certain important shots show people working out in the background who can be clearly identified.

My question is, can I use this footage if I do not have a specific release form signed by the person?

I am aware that out in a public space I do not need to get permission from bystanders, but this seems different. Please understand, no one is doing anything unusual or embarrassing and we are in an open area of the gym, not the locker room. They are just in the background of the shot for a few seconds lifting weights or talking. I don't want to blur their faces because I think it brings undo attention to them and distracts the viewer. Can I use these clips?

Follow-up question:

One of the bystanders was looking in awe at my huge bodybuilder subject, made a face and shook his head. I instinctively zoomed in on him and caught his expression without him knowing it. Is this also usable without his consent under the same conditions as above or now have we crossed the line into a different level of necessary permission? What if the bodybuilder was in a public park and I caught the same awestruck or even a disgusted expression on a bystander?

What are my rights and responsibilities?

You have crossed the line. This is not a public space and in their cases, they've likely paid for the privilege of being there. You might be able to go back to the gym and get the signatures. You could also digitize or otherwise disguise their likenesses.

Are you referring to the case of the zoom in on the member or are you also including the shots of people just doing their thing in the background?

In both cases, you're shooting people in a place where they have a reasonable expectation of privacy, without getting their specific permission. If I were in your shoes, I would not use the footage. However, I would first look into the specific membership agreement these customers sign with the gym to see if there is a photography/video/advertising clause that they've signed off on. That might give you a way out, but I would consult a lawyer on that.

A sureproof way would be to return to the gym and track down some of the people who ended up in your shots, and ask permission (via release forms). It's not easy, but you might find it easier than re-shooting good footage.

Thank you for your input!

Recently I have begun to approach people in the gym who end up in my footage and asking for their permission on camera. Just about all of them happily agree, glad to be a part of my project!

For those you can not get to sign then your only other option is to blur them out. Do-able but time intensive and can be costly if you are paying someone to do the blur.