Innocent bystanders caught in video

[Paul Tauger]

All of the runners/walkers will, no doubt, have to sign some sort of entry document to participate. Make sure that that document includes a consent to use their images (and be specific about how those images will be used). I would not be comfortable with implied consent by virtue of participation -- all they agreed to do was support MDA by running. Also, see what I wrote, above, about false-light defamation.

[Albert Wong]

Hello, gang -- :-)

Along the lines of this thread -- I am considering taking a calculated risk for a commercial appropriation of likeness violation.

OK --

I am thinking about filming some stuff on the Santa Monica 3rd Street promenade -- a public walking space full of shops in Los Angeles. I would not be going into any private stores. I will be a one-person crew. Looking like a tourist. (I don't know exactly how much a permit costs to shoot there -- the research I have done indicates that it's about $250 and up -- plus a use fee -- so I think that I may take a calculated risk and play the role of the tourist without permits.)

I will mostly be following a single subject (maybe 2 subjects) around -- from whom I have already secured model releases. The camera will at all times (almost) be on them.

OK -- here's the tricky part for me --

There will be background foot traffic. It is possible that some background faces will be fleetingly recognizable -- But at no time will the background people be the "focus" of the filming. Anyone who speaks on camera or who has any featured or "principal role" interaction with the talent -- I will get a release from.

I know that I am exposing myself to "commercial appropriation of likeness" considerations -- from the foot traffic in the background -- if the film that I am making ends up (in my dreams :-)) getting picked up for distribution or broadcast.

However, I read that when our resident guru, Paul Tauger, was thinking about doing something with his travel videos -- which also has background faces on it, he wrote:

"I live in a state with commercial appropriation of likeness laws [California] so I could, in theory, be held liable. However, again, the damages for something like this _would be negligible, assuming I were successfully sued_. "(Emphasis added)

I guess my question is: suppose I go ahead and make the film with the background foot traffic -- some of who may be identifiable -- although clearly in the background.

Assuming that there is no false-light violation, but only an (incidental) commercial appropriation of likeness violation (de minimus?), what is the extent of damages that may be claimed?

If they are in fact negligible, I may take a calculated risk.

Consider also:
http://www.caslon.com.au/ipguide24.htm

which writes regarding Commercial Appropriation Of Likeness lawsuits:

"Most litigation involves celebrities, _as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value_ and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts. [Emphasis added.] "

Thanks for your help, thoughts, or ideas -- :-)

This is all really, really confusing!


Albert

[Paul Tauger]

I know that I am exposing myself to "commercial appropriation of likeness" considerations -- from the foot traffic in the background -- if the film that I am making ends up (in my dreams :-)) getting picked up for distribution or broadcast.

However, I read that when our resident guru, Paul Tauger, was thinking about doing something with his travel videos -- which also has background faces on it, he wrote:

"I live in a state with commercial appropriation of likeness laws [California] so I could, in theory, be held liable. However, again, the damages for something like this _would be negligible, assuming I were successfully sued_. "(Emphasis added)

Whoa! The particular video I was thinking about taking commercial was filmed in India, which is why I wasn't too worried about getting sued in California by someone from India. That was a practical, rather than legal, decision.

[Dan Measel]

I've seen several videos where they blur the faces of anyone that is close enough to be recognized. That of course could distract from the artistic quality of the video, depending upon what you are shooting it for. Is that an option?

[Albert Wong]

Paul --

Sorry for the misunderstanding. :-(

I didn't realize that your travel video was from India -- yes, way different from downtown Santa Monica :-)!

I probably will just do what Dan suggests -- and blur out the faces of all of the recognizable background people.

It would somewhat distract from the artistic quality of the video, but Better safe than sorry.

Thanks,
Albert

PS. Still curious about the amount of "damages" that may be typically derived from a successful "commercial appropriation of likeness" lawsuit -- whether the non-celebrity background person is from India or Santa Monica.

[Dan Measel]

It is rather strange. It seems like a lot of effort to go through for the probably minute chance that someone will recognize themselves and then be upset that they were on a video. But still, I'd much rather be safe than sorry.

[Dylan Couper]

Regardless of the outcome of a lawsuit against you, the cost of defending yourself in court would be a substantial setback against your profit margin.

[Richard Alvarez]

I was watching the behind the scenes footage on the making of the "Incredibles" yesterday. Quite a bit of 'blurred out' faces in the backgrounds on some street shots.

So yes, even the big boys cover their backs.

[Paul Tauger]

"Most litigation involves celebrities, _as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value_ and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts. [Emphasis added.] "

At least in California, commercial appropriation of likeness is an intentional, rather than negligent, tort. This means that, if a plaintiff can demonstrate willfulness or malice, he or she can obtain a punitive damage award, i.e. the commercial value of someone's likeness is not the only measure of damages. Also, actual damages can be determined by the value of the image to defendant, not just by the potential value of the image to the plaintiff.

What all this means is this: don't assume that appropriating the image of an "average Joe" will result in minimal liability for damages. And, as someone else mentioned, the costs of defending a suit, even if resulting in a finding of non-liability, can be astronomical (which, by the way, is a good reason for carrying insurance).

[Albert Wong]

Thanks for all of your thoughts, guys.

I guess the "blurred out" option is the way to go. And I suppose the background "blurred face" is becoming a more and more acceptable/less distracting -- at least in documentaries.

Lawsuits, lawsuits, lawsuits. Man -- I think one day, everything we film is going to look like this:

http://www.smugglersite.com/05/directors/music/adamfreeland_happy.html

Enjoy :-) :-)
Thanks again --

Albert

[Paul Tauger]

Lawsuits, lawsuits, lawsuits. Man -- I think one day, everything we film is going to look like this:

And I expect that one day I'll get billing above the title. ;)