From Lawmakers for Videomakers

You don’t have to be a lawyer to understand some of the legal principles that govern the fields of video, filmmaking, photography, and music.

Even a cursory knowledge of the law can help you secure freedom to make the videos you want and to show or sell them as you please.

Right of Privacy

The greatest number of lawsuits brought against photographers today is in the field of invasion of privacy. Most states have a privacy law nicknamed “the right to be left alone.”

When you make a videotape, you have to be concerned with the law of all states where the tape might be shown, not just where it was made.

The privacy law states that “any person whose name, portrait, or picture is used within the state for advertising purposes or for the purposes of trade 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.”

A relevant lawsuit against a national magazine occurred about 15 years ago involving a newspaper salesman named Duncan Murray.

The plaintiff went to a St. Patrick’s Day parade wearing an Irish hat, a green bow tie, and a green pin. He was not Irish, by the way.

Murray was photographed, without his consent, by a freelance photographer who sold the picture to the magazine, the defendant in this case.

The photograph was printed on the magazine’s St. Patrick’s Day cover two years later, under the title of a feature article: “The Last of the Irish Immigrants.”

The plaintiff sued the magazine for invasion of privacy. One appeal, the cast was dismissed.

The court agreed that the privacy law prohibits the use of any picture for advertising or trade purposes without written consent.

But a picture illustrating an article is not considered being used for the purpose of trade or advertising unless it has no relationship to the article.

Merely because a publisher seeks to make a profit from his newspaper or magazine does not make the use of a picture a trade purpose.

The court also observed that Murray was dressed in striking attire to celebrate the occasion. He voluntarily became part of the spectacle-part of the newsworthiness. So Murray’s right of privacy was not absolute; it was limited.

Fame’s to Blame

On the subject of limited right of privacy, another interesting case maintains legal precedence.

Between September and December of 1972, another magazine used the name and picture of football celebrity Joe Namath to boost magazine subscriptions.

Even though the pictures, obtained without written consent, were used for advertising, Namath could not win this right of privacy cast. The court claimed Broadway Joe’s right was compromised when he became a public figure.

The lesson here is that as a videomaker you are safer photographing well-known public figures than taping unknowns; and the more outlandish the person’s clothing or actions, the safer you are taping him or her without written consent.

The courts try to balance a person’s right to be left alone against the public’s right to knowledge and information. Courts call this principle a privilege that protects newsworthy subjects.

As a matter of fact, courts lean over backwards to give the public unimpeded access to news and free dissemination of the truth.

Only when a person acts in reckless disregard of the truth, or in bad faith, is he or she liable for invading privacy when videotaping a newsworthy event.

Right of Publicity

One of the hottest areas in law today is closely related to the right of privacy.

The right of publicity became an issue when Elvis Presley died. A defendant in a 1980 case began using Elvis’ photograph for publicity material.

Elvis’ relatives and business manager sued, claiming that even though the King was dead his right of publicity survived him.

The federal court of appeals held for the defendant and Elvis’ relatives lost. The court maintained that a person’s right of publicity dies when he dies.

Another case was brought by Elvis’ relatives against another defendant in another state. But the second court, while again favoring the defendant, rule that in the future, a person’s right of publicity will survive death.

The U.S. Supreme Court denied certiorari on this case. Now the decisions are split nationwide.

A stage show called Beatlemania, consisting of Beatles imitators performing Lennon/McCartney songs live on stage, was the subject of more recent litigation.

The performance was packaged with a mixed media background and foreground of slides and movies depicting a variety of subjects, many of which relate to events that occurred in the 1960s.

Remember that courts generally have concluded that an unconsented use does not violate the law if it occurs as a result of publication of newsworthy events or matters of public interest.

Apple Corps, owners of the rights to what the court called the Beatles’ persona, sued Beatlemania Ltd. And was awarded more than $7.5 million and an injunction preventing Beatlemania from being staged.

The court labeled the show a massive appropriation of the Beatles’ persona, entitling the plaintiffs to judgment based on right of publicity and unfair competition.

The lesson here is to be careful using famous real personalities, Like Elvis, Bing Crosby, or Richard Nixon-dead or alive-in your productions. That rule does not necessarily apply to fictional characters.

Model and Photo Releases

Now that you’ve been intimidated about ever using your camera again, here’s some good news.

If your subjects sign a model or photo release, they waive their right of privacy and cannot sue you later for videotaping them or showing a tape in which they appear.

Your release form should include a place for the model’s or performer’s signature, the date, and the rights the subject is giving up, or waiving. If, for some reason, the release is not signed in your presence, be sure to ask your subject to have his/her signature notarized.

There also should be a provision for compensating the performer. Courts do not want to have to figure how much a product or service is worth-determining whether the compensation’s adequate is too much trouble.

So historically, courts have held contract to be valid if any consideration is given-even $1.

But just because you are dealing with a lowly dollar, do not treat it lightly. A number of courts have held releases invalid because the dollar was not mentioned in writing or, if it was, it was not actually paid to the performer.

Such releases are treated by the court as a gratuitous license to display or to distribute the videotape-revocable at any time . . . such as right before your main star sues you! Valid contracts are irrevocable.

The composite release form shown below is based on many other releases now being used. Combining the best features from them, it also expressly covers videotape. You should use this form or something similar to it whenever you can.

If your subject feels this release is too strongly worded against him or her, you can modify it by making changes in ink and having your subject initial and date the changes in the margin.

Shooting Spree

Until recently, federal law made it a criminal act to photograph any security of the United States, including bonds and paper currency. The purpose was the prevent counterfeiting.

Now photographing paper money is still heavily restricted, but not forbidden. Black-and-white photographs, and presumably videotapes, can be made of such securities for “philatelic, numismatic, education, historical, or newsworthy purposes.” The same restrictions apply for postage stamps.

Works of art and sculpture are another category of objects you might not be able to videotape lawfully.

If a painting’s owner or the artists holds a copyright on the artwork, its appearance in a videotape-even in the background of a scene-may violate the copyright. Obtain consent from the copyright holder whenever possibler.

A videomaker’s right to tape on a public street or highway is clear, so long as the videomaker does not interfere with traffic of injure people or property by placing equipment so as to create hazardous conditions.

Museums, theaters, sports arenas, other places of amusement, or even governments may establish their own rules to prohibit the use of lights, flashes, tripods, video cameras, or any photographic equipment.

There is no law or regulation prohibiting videotaping in a public park.

The Copyright Law

One of the subsidiary but no less important considerations for videomaking involves copyright law. Obtaining copyright protection is simple and does not require the services of a lawyer.

Under United States law, a copyright prevents anyone from copying your work and is effective for the life of the creator plus 50 years. It can be passed on by will or transferred by any other legal means to another person or entity.

The most important step to take to secure copyright protection for your work is also the simplest: Place a copyright notice on it.

The notice must include the symbol, the word “Copyright,” or the abbreviation “Copr,” along with the name of the copyright owner and the year the work was first published.

The copyright notice should be posted even before you actually apply the registration of the work.

The notice should be placed in a conspicuous place in or on the work so that it’s apparent to others. But the copyright notice needn’t be located to be visible when the work is exhibited.

Presumably, it’s possible to place the copyright notice on the videocassette label rather than in the video footage itself. Regulations have not yet been issued to clarify this point, so the conservative approach is recommended: Place the notice in the video, either at the beginning or at the end.

After you have placed the notice on or in your work, you can register it with the U.S. Copyright Office in Washington, DC. Registration consists of filling out application form “PA” (used to register works of the performing arts such as videotapes), enclosing a $10 fee, and submitting one copy of the work on videotape.

The Copyright Office will issue a certificate about eight weeks after receiving your application.

“Public” Policy

The step of enclosing a copy of the work is to satisfy the deposit requirement of the Copyright Office.

But you still can register your work without depositing a copy of it if the work is unpublished. The law defines publication as “The distributions of copies . . . to the public by sale . . . or by rental, lease, or lending . . . A public performance or display of a work does not of itself constitute publication.”

To show a video program publicly, according to the law, is “to perform or display it at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”

Performance in semi-public places such as clubs, lodges, factories, summer camps, schools, at film and video festivals, and conventions are considered public. Therefore, the deposit requirement must be followed.

According to this definition, the work you make and show to a small number of friends and relatives may never be published, in which case you don’t have to deposit a copy with you application to the Copyright Office.

You can get up to 10 application forms and instructions from the Copyright Office by calling its 24-hour phone number: (703) 287-9100. Record your name, address, and type of application you’re requesting (Form PA) on the office’s telephone answering machine.

Remedies and Penalties

One of the advantages of registering your work with the Copyright Office is that a copyright infringer is liable for statutory damages, ranging from $250 to $10,000 for each infringement.

In cases where the court finds an infringement committed willfully, it has the discretion to increase the award of statutory damages to $50,000.

The copyright owner can opt for either the statutory award or actual damages, including the defendant’s additional profits attributable to the infringement.

In addition to the aforementioned civil remedies, there are criminal penalties for copyright infringement: for a first offense, a fine up to $25,000 or imprisonment for up to one year, or both; for subsequent offenses, a fine of $50,000 or imprisonment for up to two years, or both.

These penalties also apply to unlawful copying of sound recordings if the underlying composition is copyrighted.

You do not have to register your work until just before you decide to sue someone for copyright infringement.

If you have registered your work before infringement occurs, however, you are entitled to statutory damages and attorneys’ fees in an infringement action. If you do not register first, you will not collect amounts that accrued before the effective date of registration.

Two-Way Exception

At least one form of performance, not protected by the copyright law, allows you to use someone else’s materials-sound recordings, poems, or narrative for example-without the threat of copyright infringement.

By the same token, anyone can use your work and not be liable for you for copyright infringement. This particular type of performance is spelled out in the copyright law.

The performance “must be without any purpose of direct or indirect commercial advantage; and it must be without payment of any fee for the performance to any performers, promoters, or organizers; and there must be no direct or indirect admission charge.

“If there is such an admission charge, the proceeds, after deduction of reasonable production costs, must be used exclusively for educational, religious, or charitable purposes and not for private financial gain.”

Even if the proceeds are for educational or religious purposes, the copyright owner has the right to veto use of his or her work in advance.

Fair Use “Privilege”

Non-profit exhibition of copyrighted works is not generally unlawful, even if the work is shown publicly. If the work is not shown publicly and not for profit (made available to a circle of your family and social acquaintances), there’s little danger of being sued.

In the case of broadcast or cable television, of course, exhibition of your work is generally for profit-your gain or that of the TV station.

Thus, the broadcasting of someone else’s copyrighted material in your work without permission of the copyright holder is unlawful.

An exclusion, called the fair use doctrine, is spelled out in the copyright law. Fair use is “a privilege in others than the other of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright.

Courts often have claimed that the line between fair use and copyright infringement depends on the facts in each case. The call cannot be determined by any arbitrary rules or fixed criteria, making the fair use doctrine the most troublesome “catch” in copyright law.

The copyright law fails to define the outer limits of fair use explicitly, but the statute leaves the door open for courts to take reasonable approach in the more difficult fair use cases.

A balancing test must be used to determine whether the public’s interest in dissemination of information outweighs the exclusive right of the copyright holder.

The first thing a court determines is the purpose or character of use, including whether it’s of a commercial nature or for nonprofit education purposes.

Courts also consider the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole.

And finally, courts try to determine the effect of the use upon the potential market for the copyrighted work.

Recordings and Writings

With sound recordings, the fair use definition is clear-cut. A copyrighted sound recording may be reproduced in a film or videotape for use as criticism, comment, news reporting, teaching, scholarship, or research.

If you’re not using sound recordings for those purposes, you still may be relatively safe from being accused of copyright infringement on the basis of the potential market of the copyrighted work.

How many people who see one of your works will not buy a recording of a song because they heard it on your video? The answer may be no one. If anything, sales of that recording may increase as a result of you giving it exposure.

As for the use of adaptations of books or stories written by others, parody cases usually do not harm the copyright holder as long as the two works serve distinct markets.

If you are producing a video based on a story or novel that has never been filmed or taped before, you can argue that there are two distinct and mutually exclusive markets: the readers of the story and the viewers of your work.

There are situations in which no copyright infringement occurs at all, when only the theme, ideas, or facts which underlie a work are copied. Copyright protects the form of expression-the actual book, video, recording-but not the underlying idea.

If you produce a video based on a plot that occurs in a published copyrighted short story, for example, you are not necessarily liable for copyright infringement.

The test courts use is called “substantial similarity.” Unfortunately, no usable guidelines exist to help clarify this phrase. Suffice it to say, if your video is nor substantially similar to a copyrighted work you will not be liable in an action based on copyright infringement.

Once again, the facts of each case are and will be different, as are and will be the interpretation of those facts by each court.

At least one principle, however, seems to dictate courts’ decision: When dialog or narration identical to the author’s is used in an adapted work, copyright infringement is the verdict.

Laws for All

To enjoy the greatest freedom making videos as an artistically and financially rewarding adventure, be sure you are not invading or infringing upon the rights of others. The law is intended to protect them . . . and you.

Remember: If commercializing your work is a possibility, be sure to register it with the U.S. Copyright Office.

Finally, when in doubt about your rights or obligations as a videomaker, consult a qualified lawyer.

Mark Levy, an attorney in Binghampton, NY, specializes in intellectual property law-patents, trademarks, and copyrights. The freelance writer and videomaker has won several awards in amateur film and video competitions and festivals.

A link to Videomaker’s release form can be found HERE

Mike Wilhelm
Mike Wilhelm
Mike is the Editor-in-Chief of Videomaker and Creator Handbook

Related Content