Private Lives: Who is protected… the producer or the citizen? It depends.
A woman went to the IRS office on April 14 to petition for a filing extension. While she waited, the local news media arrived to do a tax-day deadline story. This intensely private lady didn’t want to be on TV. “We’ll just be filming your back,” the reporter said affably. “How about not filming my back,” she responded with equal affability. The camera was redirected and life went on. The reporter didn’t need permission to film if her face was not visible, but this was a feature story, not a news story, so she was within her rights to refuse to be filmed at all.
As a videographer in America, generally you have the right to photograph, draw, record, paint, sketch or videotape any subject you wish. This First Amendment right to free speech, however, is not absolute; most often the individual’s equal or greater right to privacy can restrict it. In the pursuit of your subject, you must remain aware of possible conflicts between your right to film and the rights of unwilling subjects, and you must take reasonable precautions to protect yourself to stay out of court.
While the Constitution does not explicitly spell out the right to privacy, it is an inherent human right that most court decisions have upheld. We have the right to expect that our private lives will not be subject to public scrutiny in the absence of compelling reasons for disclosure. Recording a person’s private conversations, his family, his business or the activities in his home without permission usually constitutes an invasion of privacy.
The same principle holds true for private events in public places. A wedding, for example, is a personal family event, even though most of it takes place outside the home. You cannot film a wedding unless you have explicit permission. If you manage to get the shots without permission, you cannot use them to promote your business or sell them for advertising purposes. The privacy laws of many states specify that any person whose name, portrait or picture is used without written consent may sue to prevent and restrain the use thereof and may also sue and recover damages for any injuries sustained by reason of such use.
Such events in the lives of private citizens are generally of interest only to the participants. But what if they and their families are well-known politicians, athletes, movie stars or royalty?
As a movie producer, you are safer taping public figures who have little right to privacy than taping unknown private individuals. And the more outlandish the subjects’ behavior, the safer you are in recording their actions without written consent. When people voluntarily become part of a public activity or create a spectacle, they become newsworthy. Here, freedom of speech is supported by freedom of the press. And the court seeks to balance the right to privacy with the public’s right to know. Fans have only the right to knowledge of newsworthy activities. Neither the paparazzi, nor you as a movie maker, can knowingly point cameras into an actor’s bedroom, because nothing that happens there can provide valuable information to the public, even though obsessive fans may find the shots titillating. The law does not protect such coverage, which intends to embarrass the victims and expose them to public ridicule and may even put lives in danger, and the perpetrator may be liable for damages. Recent high-profile cases involving Jennifer Aniston and George Clooney are good examples, as was the tragic death of Princess Diana.
In general, a movie maker’s right to shoot in public places is clear, as long as neither he nor his equipment poses a hazard to bystanders, motorists or law enforcement. Sometimes, a genuinely newsworthy event or tragedy thrusts an otherwise private person into the public eye. The public and the press may be dependent on the quick thinking and courage of witnesses with cameras. During the Virginia Tech massacre, video from a student’s camera phone mesmerized viewers and provided police with valuable information.
You can use a simple release to protect yourself from an invasion-of-privacy lawsuit brought by your talent (or even bystanders). A sample release form is included with this article on our website at https://www.videomaker.com/article/10015/. Carry a supply of releases whenever you are shooting. By signing the release, the person waives the right of privacy and cannot sue you later for using the footage. Make sure a parent or guardian signs for underage performers. As the courts prefer not to determine compensation, a contract is valid even if the payment is only $1.00.
If a well-known private citizen happens to be a bystander at an event, exercise caution and get permission before taping. You have a right to film people, places and events, but you need permission to do so, unless the subjects are at least temporarily newsworthy. If you want to include a person’s image, voice, property or possessions in a video, introduce yourself and ask the person to sign a release – it’s worth a dollar today to stay out of court tomorrow. And, as always, when in doubt about your rights and obligations, consult a patent attorney specializing in intellectual property.
Mark Levy is an attorney specializing in intellectual property law. He has won amateur moviemaking awards in many countries. Gina Gullace is Mark Levy’s research assistant and editor of the AMMA Monitor, the magazine of the Amateur Movie Makers Association.