In some ways, the field of law is like video production. Once reduced to writing or committed to videotape, both a law and a completed video may appear to be rigid, immutable and absolute. But as we know, a so-called “final” video is not necessarily frozen forever. It’s a composite of a myriad of psychological and technical decisions, many of which are subject to re-edit at the whim of the videomaker.
Similarly, the body of law is a dynamic entity, reflecting social conditions and public policy. Laws must change as social circumstances, business situations or even technologies change. What may appear to be a black-or-white issue the day before the trial can become a complicated legal debate, depending on the evidence and testimony presented in court. For better or worse, the outcome of a lawsuit (the judicial opinion) can be subjective, the judge or jury attempting to accommodate the point of view, as it were, of the litigants.
All of this is to say that no article discussing mass media law and its ramifications for videomakers can be absolute. You should not exclusively rely on a lawyer's published advice relating to a hypothetical situation, since the specific facts of your case are not necessarily identical to those discussed in the article.
Even if the facts were identical, the example case still might not withstand the test of time. Since law is a living thing, not static, it is impossible to predict the outcome of any legal dispute until you fight the battle.
Mass Media Law: A Newsworthy Event
This all might seem theoretical, but as a videomaker, you may be only an instant away from a situation having legal implications. Consider this scenario: you're on vacation. Your batteries have a full charge and your camcorder is ready to go. A newsworthy event–a fire in a restaurant, for example–occurs before your eyes. Smoke belches from doorways, flames spurt from windows, heroic fire fighters enter the building, carrying patrons and restaurant staff out to safety.
You remove your lens cap and start taping the event from a distance. As all good videomakers know, varying camera angles and using close-ups add excitement and involve your viewers. So you take a few steps closer to the action. A police officer notices you and approaches.
"Sorry," he says politely (but firmly), "you can't come any closer. It's for your own safety."
Mass Media Law: Your First Amendment Rights
Before you respond to the police officer, think about your rights under the United States Constitution. The First Amendment states that “Congress shall make no law… abridging the freedom of speech or of the press.”
Over two centuries ago, there was precious little discussion about television, radio, movie film, audio tape, CDs, video cameras or even electricity, for that matter. When the writers of the First Amendment specifically referred to “speech” and “the press,” they didn't mean to limit forms of conveying information; it's just that speech and printed matter were the only sorts of communication available at that time. Twentieth century court decisions have had to expand the definition of “press” to include all mass communication media. Good news for videomakers! For purposes of this article, we will use your act of videotaping as a form of “speech.”
As you may recall, the framers of the Constitution included the First Amendment in order to guarantee and encourage free expression, discussion and even dissent. No person was to receive a penalty for expressing his or her opinion, however individual it might be. The First Amendment has never been repealed or modified, although over the years courts have limited free speech in certain situations. For example, national security dictates that secret negotiations, military strategies, plans for producing weapons, etc. not be made publicly available. Nor does a person have an absolute right to initiate a riot or cause a panic by yelling “Fire!” in a theater. Nor can one person injure another's reputation by publishing false statements, especially if done maliciously.
Mass Media Law: The Right of Privacy
In fact, a person does not necessarily have the absolute right to include even true statements about another in a video without permission. One person's right of free speech can conflict with another's right of privacy. Analogously, you may have heard the observation that my right to swing my arm ends at the tip of your nose.
Simply stated, the right of privacy is the right of a person to be left alone, and it is applicable even if no physical harm is likely. The Constitution says nothing explicit about the right to privacy; nonetheless, it is an inherent human right which many, many court decisions have upheld. Americans have the right to expect that, without some compelling and overriding purpose, their private lives will not be subject to public inspection. Videotaping a person's private conversations, his family, his business or the activities in the home without permission constitutes an invasion of privacy.
But what if the individual were a well-known public figure, such as a politician, a basketball player or a movie star?
What if the event that occurs in that person's house were significant, even newsworthy?
What if the person consents to having the event covered by a news reporter?
On the other hand, what if, by covering the event, the reporter poses a danger to others, or even to the country?
What if the reporter actually harms individuals by disclosing false “facts” with a reckless disregard for the truth?
These are the issues you face as you practice the craft of videomaking. As a videomaker, you are safer taping well-known public figures than taping unknown, private persons; and the more outlandish the person's actions, the safer you are taping him or her without written consent. This is because when people voluntarily become part of a public activity or spectacle, they become newsworthy. A person's right of privacy is therefore also not absolute; there are limits.
The other side of the coin relates to commercial trade. Most states have their own privacy law, so when you make a video, you have to be aware of the law in all states where your audience exists, not just where you made it. The privacy law of many states specifies 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.”
If you use your videotape for advertising or trade purposes, you may be liable. If you don’t, however, you are generally not liable.
Mass Media Law: Balancing Rights
You can see that neither your First Amendment rights nor your right of privacy is absolute. Both rights have limits. Back in the 18th century, when the press relied only on notebooks and pencils, the issues were more simple. Nowadays, with tens of millions of video cameras in the United States, inevitably the question of privacy versus free videotaping must come up frequently in the courts. In fact, the greatest number of lawsuits brought against videomakers today is in the field of invasion of privacy.
The courts try to balance a person's right to privacy against the public's right to know. 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 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.
As for locations (museums, theaters, restaurants, retail stores, sports arenas, other places of amusement and even governments), they may, if they wish, establish their own rules to prohibit the use of lights, flash, tripods, video cameras or all photographic equipment. There is, however, no general law or regulation prohibiting videotaping in a public park. You are free to make videos there.
In general, a videomaker's right to shoot or tape on a public street or highway is clear, so long as the videomaker does not interfere with traffic, or injure people or property by a hazardous placing of equipment.
And now, back to our vacation scenario. The police officer who orders you to move away from the burning restaurant and stop taping may have your safety at heart. Approaching the conflagration might place you in physical jeopardy. Or it might endanger the fire fighters, the rescue workers or the victims themselves. In such cases, a judge would find it reasonable for the police officer to restrict your movements and limit your First Amendment rights.
But what if you were taping from a respectable distance, out of harm's way? Could an official force you to cease taping? The answer is probably no. You do have a right to videotape public events, even if you are not a member of the working press. After all, the First Amendment makes no distinction between professional, accredited news people and amateur or hobbyist video reporters.
In certain jurisdictions, a press card allows you to cross police lines. But the police can still use their discretion in restricting movement of professional reporters if they believe that the reporters are in danger or are likely to pose a danger to others. In other words, having a press card does not necessarily bestow special rights on the owner.
Actually entering the premises of the scene of the incident without permission could constitute trespass, and footage shot inside the restaurant could support the allegation of invasion of privacy. If the police suspect a crime, they will cordon off the premises with tape. Do not cross the police line or you will be subject to a charge of tampering with evidence at the scene of a crime–a criminal offense.
One of the problems with rendering legal opinions and advice is that, in an ivory tower, sometimes lawyers can be singularly unpractical. For example, pragmatically, even though you may be within your rights, it may not be advisable to provoke an armed police officer under stress.
Mass Media Law: Model and Location Releases
You can use a simple agreement to protect yourself from a right-of-privacy lawsuit brought by the talent (or even bystanders) in your video productions. The agreement is called a release [see sidebar]. By signing the release, the person waives the right of privacy and cannot sue you at a later date for videotaping or exhibiting the tape.
Include a place for the performer's signature, the date, and the rights your performer is giving up or waiving. If, for some reason, the performers do not sign the release in your presence, be sure to ask your performer to have his or her signature notarized. Of course, if your performer is under age, have his or her guardian sign instead.
Also include a provision for compensating the performer. Fortunately, courts usually avoid having to determine whether compensation is adequate, because they do not want to have to figure how much a service is worth. A contract can be valid if any consideration is given — even $1.
Mass Media Law: Protecting Your Work
Once you have made a lawful video, you may wish to protect it in order to prevent others from copying it or using it without your permission. Under the copyright law of the United States (itself based on a provision of the US Constitution), a copyright is an exclusive right to produce a work, to prepare derivative works, to distribute copies, to perform the work (if appropriate) and to display the work (again, if appropriate). It is effective for the life of the creator plus 50 years. Like a deed which defines real property, the copyright defines intellectual property–your video. And like personal property, you can pass the copyright by will or transfer it by any other legal means to another person or entity. The copyright holder can license the copyrighted work to one or more people or can assign the rights outright for a lump sum or for ongoing royalty payments.
The most important step to take to secure copyright protection of your work is also the simplest: place a copyright notice on it. The one-line notice must include the symbol © or the word “Copyright” or the abbreviation “Copr.”, along with your name, as copyright owner, and the year in which the work was first published, in Arabic numbers (e.g. 1996) or Roman numerals (e.g. MCMXCVI). The phrase “All Rights Reserved” placed under the notice is necessary to protect your work in certain foreign countries. Place the copyright notice on the work even before you actually apply for registration.
Be sure to put the notice in a reasonable place in or on the work so that others are likely to see it. You can place it on the videotape cassette label and again in the video itself, so that the audience can view it either at the beginning or at the end of your video.
After you have placed the copyright notice on and in your work, you can register it with the US Copyright Office in Washington, DC. Registration consists of filling out an application form, enclosing a $20 fee and submitting one copy of the work on videotape. The Copyright Office will issue a certificate within approximately three months' time of receiving your application and materials.
You can obtain up to ten application forms and instructions from the Copyright Office by calling their 24-hour hotline phone number: (202) 707-9100. Leave your name, address and type of application form requested (Form “PA” for videos) on the telephone answering machine.
Mass Media Law: Copyright Exception
Another issue that arises is your liability for using another's copyrighted work without permission. You can obtain permission from the copyright holder directly (if you know how to find him or her), or through one of the major organizations that handles copyright rights and collects royalty payments. In the music world, there are two major organizations that can facilitate the process by providing you with the music publisher's name and address: the American Society for Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI).
One type of performance is not covered under the copyright law. In other words, you can use someone else's materials–say, for example, someone else's sound recordings, poems or narrative–and this will not be copyright infringement under a particular circumstance 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. But 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 the performance in advance.
Non-profit exhibition of copyrighted works is not generally unlawful, even if you show the work publicly; and if you don’t show the work publicly or for profit (for example, if you show it only to a reasonably small circle of your family and your social acquaintances), there is little danger of anyone suing you. In the case of broadcast or cable television, of course, any exhibition of your work is generally for profit–your profit or the profit of the TV station. Thus, TV use of someone else's copyrighted material in your work without permission of the copyright holder is unlawful.
Mass Media Law: Fair Use Exclusion
When else might you use someone else's copyrighted work without his or her permission? You may have heard of the fair use doctrine or exclusion. Fair use is “a privilege in others than the owner 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 have often said that the line between fair use and copyright infringement depends on the facts in each case. This makes the fair use doctrine the most troublesome in the entire law of copyright.
The copyright law fails to define the outer limits of fair use explicitly, but the statute leaves the door open for courts to take a reasonable approach in the more difficult fair use cases. How do the courts determine whether your use of someone else's copyrighted material is fair use? Courts use a balancing test 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 the use, including whether such use is of a commercial nature or for nonprofit educational purposes. Courts also consider the amount and substantiality of the portion of the work used, in relation to the copyrighted work as a whole. Finally, courts try to determine the effect of the use upon the potential market for the copyrighted work.
The facts of each case are, of course, different, as is the interpretation of those facts by each court. What one court in one case finds to be substantial similarity may not hold up in another court or another case. At least one principle seems to control courts' decisions: when an adapted work includes dialogue or narration that is identical to the author's, copyright infringement occurs.
To summarize: if there is a heavy reliance on any one source, an amateur may have an exposure of copyright infringement when the alleged infringing work seeks a place in the same market as that source.
To enjoy the greatest freedom in making videos, be sure you are not invading or infringing the rights of others. And if there is a possibility of commercializing your work, be sure to register it with the US Copyright Office.
Finally, when in doubt about your rights or obligations, consult a lawyer. Attorneys who specialize in the field of intellectual property are usually listed under “Patent Attorneys” in the Yellow Pages.
As for the people who appear in your video, here are the factors to consider: are they recognizable public figures participating in a newsworthy event? If they are recognizable private citizens who are not part of the newsworthy event, you should exercise caution.
The guidelines presented above apply to all situations, not just to disasters. As a videomaker, you have a right–a limited right–to tape people, places and things, but you will need permission to do so unless the subjects are public or, at least temporarily, newsworthy.
One last word of advice. If you want to include a person's image, voice, property or possessions, introduce yourself, if at all possible, and ask the person to sign a release. (Keep a supply of releases in your camera bag.) It may well be worth a dollar to stay out of court. You can trust me on this one &8212; I'm a lawyer.
Talent Release Form
In consideration of the sum of $1.00 and other good and valuable consideration, receipt of which is hereby acknowledged, I, being of legal age, hereby give __________ ________________ (hereinafter the Videomaker), and all licensees, successors, legal representatives and assigns of the Videomaker, the absolute and irrevocable right and permission to use my name and to use, reproduce, edit, exhibit, project, display, copyright, publish and/or resell photographic pictures and/or moving pictures and/or videotaped images of me with or without my voice, or in which I may be included in whole or in part, and any of my possessions, including real and personal property, which pictures, images and possessions are photographed, taped, videotaped, and/or recorded on _____________, 19___ and thereafter, and to circulate the same in all forms and media for art, advertising, trade, competition of every description and/or any other lawful purpose whatsoever. I also consent to the use of any printed matter in conjunction therewith.
I hereby waive any right that I may have to inspect and/or approve the finished product or products or the editorial, advertising or printed copy or soundtrack that may be used in connection therewith and any right that I may have to control the use to which said product, products, copy and/or soundtrack may be applied.
I hereby release, discharge and agree to save harmless the Videomaker, his licensees, successors, legal representatives and assigns from any liability by virtue of any blurring, distortion, alteration, optical illusion or use in composite form whether intentional or otherwise, that may occur or be produced in the making, processing, duplication, projecting or displaying of said pictures or images, and from liability for violation of any personal or proprietary right that I may have in connection with said pictures or images and with the use thereof.