Law, unfortunately, is not a science, much less an exact science. There is no legal equivalent to Avogadro’s number or Planck’s constant or the Pythagorean Theorem. No legal formulas are equivalent to the ones we videographers might use for determining f-stops, signal-to-noise ratios, or white balancing.
There are precious few absolute blacks and whites in the law–only shades of gray. In a way, this is not a bad situation. Indeed, if the law were exact, allowing all of us to predict the legal effect of every event, there would be no need for lawyers. And without lawyers, of course, we would have no lawyer jokes.
Philosophically, lawmakers and judges expect that the same law, applied to different factual situations, may result in different outcomes. This is true not only of laws relating to criminal cases or to contract disputes, but also of laws relating to videographers. Depending upon a number of factors, it is possible that your right to practice free speech under the First Amendment of the Constitution–by videotaping people and objects, for example–may be outweighed by the interests of others. In other words, you can most often expect a judge to balance your individual rights as a videographer against the rights of others.
This article discusses some legal factors to consider as you make your next video. Specifically, you will learn to perform the balancing act that occurs when your rights as a videographer conflict–actually or potentially–with the rights of other individuals or of the general public. You will also learn how to minimize or eliminate such conflict, when possible, thus reducing the likelihood that you’ll have to consult one of the aforementioned lawyers.
Location, Location, Location
The first rule of videomaking in a free country is that, in general, you have a right to photograph, film, draw, tape record, paint, sketch or videotape any subject you wish. But your rights are not absolute. Depending on specific circumstances, the counterbalancing rights of others may limit your activities. For example, at certain locations (e.g., museums, theaters, arenas, restaurants, retail stores, stadiums, other places of amusement and even government structures), administrators may establish their own rules, if they wish, to prohibit the use of lights, flashbulbs, tripods, video cameras, cables, microphones, or any other photographic or recording equipment.
The purposes of such prohibitive rules may vary. A concert promoter may not wish to encourage copyright infringement by the use of camcorders or tape recorders. A museum curator may not wish to have works of art endangered by flashbulbs and movie lights, or patrons inconvenienced by rescheduling or by closed exhibition areas. A property owner may wish to discourage members of the public from visiting the premises, based on the perceived nuisance of errant cables or unidentified flying photographic equipment. The property owner may be under-insured for personal injuries or damages to property that may result from negligent behavior on the part of the videographer. A police officer may not wish to have traffic–vehicular or pedestrian–obstructed. Nor may public or private administrators wish to risk exposure to legal actions based on hazards, dangers, nuisances or invasion of privacy.
In general, a videographer’s right to shoot or tape on a public street or in a park is clear, so long as he or she does not interfere with traffic, or injure people or property by a hazardous placing or use of equipment and props. In congested areas, such as bigger cities or frequently visited parks and preserves, a permit may be necessary. You can usually obtain film, photographic and videographic permits relating to national and state parks and preserves from the appropriate park superintendent, if necessary.
In the case of locations in a given city, county, state or province, you can obtain such permits from the province or state film commission, bureau or office, usually located in the capital city. Unfortunately, no one person or organization can speak for every establishment in the country. Every state or province has its own film commission, or equivalent. Many situations require permission from a bewildering host of overlapping authorities. In the case of larger cities, you may have to secure permits from the mayor’s office (try the city’s lawyer or counsel), the county executive’s office, the police department, the public works department and/or the transit authority. Certain jurisdictions may grant permits only upon proof that you have purchased suitable liability insurance to protect yourself and the governmental agencies in charge of the property. As a first step, find out if insurance is a requirement. Then ask your insurance agent how to secure short-term (e.g., one day or one week) insurance protection. The best advice is to attempt to get as much information and written policies, procedures, and forms by telephone or mail, well in advance of your scheduled shoot.
Permit fees vary from zero to thousands of dollars, depending upon the length of time for the shoot, the purpose of the video, the time of day, week or year, and the property owner or granting authority. In general, you won’t need to make royalty payments, except occasionally to professional performers (musicians, jugglers, dancers, artists, comedians, actors). Remember: everything is negotiable. Sometimes a property owner will be flattered to be represented in a video, in which case a copy of the final video can be sufficient compensation.
Perhaps, as a videographer, you intend to cover a news story. 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. 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. In short, having a press card does not necessarily bestow unlimited, special rights on the owner.
Actually entering the premises of the scene of the newsworthy incident without permission could constitute trespassing. Footage shot inside a restaurant, for example, could provoke an allegation of invasion of privacy. In the case of franchise restaurants, the manager may not have authority to grant you permission; he or she may have to contact the regional or national office.
Even though you may be shooting from a public place, such as the middle of a street, you can be liable for damages if your subject is private property. As a practical matter, if you feature a person’s house or yard or car in an innocuous scene, the owner could claim no damage. In the unlikely event that he brought a lawsuit against you, the plaintiff would win only nominal damages. However, what if you used the person’s property in your video untruthfully or maliciously, such as to somehow associate the owner with drug addicts, terrorists, organized crime figures, child molesters, etc.? In such cases, the owner of the property would be within his or her rights to sue you for invasion of privacy, slander and trespass.
Model and Location Photo Releases
As a videographer, you have the power to videotape people, places and things, but you will need permission to do so unless the subjects are public figures or, at least temporarily, newsworthy.
You can use a simple agreement to protect yourself from invasion-of-privacy lawsuits brought by your actors (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 copying 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 performer doesn’t sign the release in your presence, be sure to ask him to have his 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. Since courts avoid having to determine whether compensation is adequate, it can hold a contract valid if the performer receives any consideration–even $1. If you want to include any part of a person–image or voice–or the person’s property or possessions, introduce yourself and ask the person to sign a release. (Keep a supply of releases in your camera bag.) It’s well worth a dollar to stay out of court.
Music and Sound Effects
The most common intellectual-property-rights issue that arises is your liability for using another’s copyrighted music or sound effects 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 law and collects royalty payments for composers and musicians. The two major organizations that can facilitate the process by providing you with the music publisher’s name and address are: the American Society for Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI).
Under a particular circumstance spelled out in the copyright law, you can use someone else’s materials–say, for example, someone else’s sound recordings, poems or narrative–without fear of copyright infringement. 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 the work is shown publicly; and if the work is not shown publicly and is not shown for profit (for example, if it is shown only to a reasonably small circle of your family and your social acquaintances), there is little danger of being sued. 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.
Perhaps the best solution to the soundtrack problem is to compose original music or have it composed for you. Local colleges often have students majoring in music. These students may be interested in working with you, as long as they receive credit for their compositions. Be sure you have a written agreement with them, however, so that you will have the rights to their work.
When to See a Lawyer
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.
Mark Levy, an award-winning videographer, is a lawyer who specializes in intellectual property law.
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 Videographer), and all licensees, successors, legal representatives and assigns of the Videographer, 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 photographic and/or moving pictures, videotaped images and/or possessions are photographed, taped, videotaped, and/or recorded on , 19 and thereafter, and to circulate the same in all forms and media (including, but not limited to: videotapes, audio tapes, compact discs, computer files, film, slides and photographs) 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 acknowledge that I have no interest, ownership or copyright rights in any pictures, images or recordings or in any forms or media thereof produced by the Videographer.
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 Videographer, 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, images, or recordings and from liability for violation of any personal or proprietary right that I may have in connection with said pictures, images, or recordings and with the use thereof.
Videomaker does not guarantee the legal integrity of this form nor does Videomaker assume any responsibility for its use.
[Sidebar 2: FAQ]
How do I know whether or not I need a permit to shoot video?
If you’re shooting video unobtrusively in the great outdoors (like a beach or park) for your own personal use–video that won’t be seen outside your own living room, you probably don’t need a permit. If you’re shooting personal video in a controlled area like a museum or restaurant, your chances of needing a permit (or, at least, verbal permission) jump dramatically. If you’re shooting video for profit in such a location, your chances of needing a permit skyrocket. The rule of thumb is: when in doubt, make a phone call to the authority that governs the location. That way there’s no guessing involved; you’ll know you’re on the right side of the law.