A question about feature film production in public places
 

I was watching the Director's commentary on the DVD of The Brothers McMullen a few nights ago, and one of the comments that Edward Burns made was that the director shouldn't worry when filming a scene in a public place about filming passers bye, because if they don't ask you to get them to sign a release at that time, they can't complain afterwards about finding themselves inadvertently in your feature film. My understanding up till now was that studios quietly settle complaints/cases for about $5k a pop when a member of the public finds themselves in a feature film without signing a consent. Is Ed Burns correct when he says that the member of public has to complain at the time of the shoot, otherwise they have no redress?

Thanks
Greg

From all that I've heard, and from working with the film and commercial production crews here in my little town, what Ed Burns says simply isn't true. They get a release for everything, including buildings and houses that appear in the background, even in public places. A feature film that they was shot here on government and public property had some shots ruined because someone walked by, and refused to sign a release. It is not the passerby's responsibility -- it is the producer's and PA's responsibility to go to the person and get a release. A person owns the right to their image until they sign it away -- it only changes if they are part of a newscast.

If you have a big studio or distributor backing your film, and proper E&O insurance, then yeah, you may be able to get away with it -- since they'll be able to cover any lawsuits. But it's definitely a risk. If you don't have that sort of backing, I would advise against it. From talking to some buyer's reps and distributors, not having a release on everyone (and almost everything) can hinder your film sale. But I'm not an entertainment lawyer, so take my advice with a grain of salt.

I'm gonna play devils advocate here, this problem must apply to any public filming that appears on national tv not just feature films so what about in the cases of news stories where you see alot of the public such as 9/11, they can't find all of these people to sign a release form . I would use that argument if someone tried to sue me.

Another point is that most people probably don't know their rights when it comes to this matter and unless they were caught in one place when they are ment to be in another most likely wouldn't bother to higher a lawyer spending the money to complain.

Then there's Andy Warhols 15 min of fame point, most people like to see themselves on tv, especially in a film.

I'm not a lawyer either these are just my thoughts on the matter. It would be nice to hear from a lawyer if there is one on the board.

Andy

You can't get a release for everything - think of all those aeriel shots over new york - can they have got a release from every building owner in the city to film their buildings? Or those shots where the actors are sitting by a window or on a city street and heavy traffic is going past - big budget films may bring in their own drivers but on most budgets it would just be ordinary traffic passing by, and we can't chase down every driver in the street to get a release...

I think the rule of thumb should be, if the person is featured, i.e. reacts on camera to what the actor/crew is doing, you should get a release. otherwise, if you are concerned about possible legal problems, just make sure that it is clear for members of the public that they have wandered onto a film set (place signs everywhere saying "You are now entering a film set", and take digital photos of those signs so that you can prove they were there later) so they can't act surprised later on and say they didn't realise it

IIRC, news reports are different legally. They are for the public interest, and if you're in it, too bad. Documentaries and feature films are not in the same category as news reports. News can get away with a lot more in the interest of the public good.

As for flyover of buildings, no, you can't get permission for that. However, if a building is central or pivotal and doesn't just blend into the background as scenery, from what I understand, you are supposed to get permission. Even if it's not crucial to your story, their lawyers can argue that you are using their identity or brand; or if your film deals with "dark themes," like say drug use, they can argue you are putting a negative image on them. A skyline and you're fine. Even public monuments are probably fine. But I'd always be careful about other things.

As for people, if they are visibly recognizable in any way, you have to get a release. People flashing by in cars are not usually recognizable, and even on lower budget films, it is shot in ways to avoid seeing the people's faces (say from afar or at an odd angle). But if they are recognizable, it only takes one person to sue.

For clubs, and huge events, like many MTV shows, they do put up clearly marked signs that show that filming will take place. But usually these places do have one or two entrances and exits, where a sign can be clearly seen. Even then, the producers are sometimes forced to blur out other faces. You see this a lot, when the action moves from the club to the city street -- and the people in the background have their faces blurred out. And yes, even in shows like Cops, everyone of those people arrested signed a release. Depending on the laws in your city, you usually need a permit to secure a city street and put those signs up. Without a permit, just having signs up might not do you any good. Again, I wouldn't know -- that's what lawyers are for.

These are things I've been taught as guidelines. I've broken plenty of these rules on some of my short films, but I realize that I am taking a gamble when I'm doing so. I've known a couple filmmakers who had to reedit or lose sale on a film, because of one misplaced face or one misplaced advertising sign. Entertainment law is tricky. There's a reason why most films have things like Coke cans turned away from the symbol, and cereal boxes are always turned away so you can only see the ingredients side. There's even a whole quagmire about whether or not to show beer signs in a bar.

If you have any doubt about something being in your shot and you can't avoid it, consult a real lawyer for real answers.

[Edit: This is from my experience in America. No idea what the entertainment laws are like overseas.]

It may be different for you since you indicate you are located in Scotland. Here in the US, news gathering falls under a different umbrella and it sort of flows into the protections offered by the constitution with respect to freedom of the press in our 1st amendment. It would be a long, protracted post for me to explain it all, but film making and news gathering are two completely different animals.

-gb-

Fair enough, i'm not a lawyer. All i know is we shot a feature in conjunction with the Edinburgh film council and they didn't mention public consent. We had to notify the firearms unit and have our public insurance in order but that was all.

Guess we got off lightly

Andy.

If a person is in a public space and does not have a "reasonable expectation of privacy" then they can be photographed, videotaped, recorded, etc. The same goes for any building or vehical or anything else visible from a public space and does not have a reasonable expectation of privacy. This is protected by the first amendment and has been held up and courts time and time again. This right extends to everyone, the first amendment doesn't just protect newscrews and reporters, but everyone has this right- although frequently people, security guards, and small town cops will try to tell you otherwise.

However, there is such a thing as libel and slander. Even though you do not need a release to film someone in public, if you missrepresent who that person is or what they are doing, you could be held accountable. In dramatic film production, a location is frequently used to represent a different location, and situations are depicted that may not have actually happened. By having a person photographed in a scene it may make it appear that the person was involved with something that never happened, or that they weren't actually involved with. In this case a person can sue you for libel/slander.

Even though you have the right to film/photograph someone in a public space, they also have the right to sue you... even if their suit is without merrit and will be dismissed by the judge, they still can file a lawsuit against you... in which case you still have to go to court, and still can cost you money.

So, even though it is perfectly legal to film without releases, it is often easier just to go ahead and get a release anyway.

I guess I'm glad I'm still in the small times. I dont think I've ever gotten a permit for anything. I've always just went out, shot what I needed until I find myself running from security guards

please dont think less of me haha

Thanks all for the feedback. I'd post the transcript of what he says, but don't want to raise a fuss from the DVInfo moderators about what can or can't be presented here. Burns appears to me to be giving legal advice, which at the very least, I'm surprised that 20th Century Fox let through on the DVD, since apart from anything else, even if what he was saying was true for when the DVD was released (which I'm dubious about) could well be superceded by new law years after the DVD was released.

Oh well, I guess I can always sue Fox if I have any problems... :)