Whether you’re working on a documentary, hip hop music video, or social media ad, certain components are key. For example, if you’re recording people, you must make sure they sign a release form. This is one of the most important rules to remember when filming or photographing human subjects.

This basic but crucial step gives you permission to use footage of that person. A signed release also grants you control over what you can do with the final product. Plus, you’ll have peace of mind that you’re protected from unwanted lawsuits down the road.

Though it may be uncomfortable, Always have your subjects sign a release form

In this article, we’ll define the right of publicity. Simply put–that thing your subjects are letting you use by signing a release form–themselves. Then we’ll explain why release forms are important. We’ll share some information about release forms. Plus, provide resources you can leverage if you want to create your own. To wrap up, we’ll explore other potential ways of getting permission for when you’ve left your release form at home.

While this article doesn’t constitute legal advice, it’s meant to help you start thinking about some of the important legal implications of filming people and distributing that work.

The Right of Publicity and why you need a release form

According to the American Bar Association, the right of publicity, “protects any recognizable aspects of one’s persona, such as one’s name, photo or likeness, and prevents the unauthorized commercial use thereof.”

In other words, it’s the right each one of us has to the things that makes us…us. This includes our name, what we sound like, how we look and other potentially unique, identifying characteristics. The right of publicity protects us. It shields folks from having their defining characteristics used for commercial or other public purposes without their consent.

Let’s say you’re shooting a gangster-inspired web series and I agree to be part of it. We meet on set and you bring your gear. I bring my best Al Pacino impession, and we film for a few hours.

You might be surprised to learn that you still need a release. I retain my right of publicity over that footage if I haven’t released that right, even if we’re good friends.

Even if you’re working with someone you know and trust, it’s still important to have them sign a release form to avoid future issues.

This is where release forms come in. They are a waiver of the right to publicity over a specified creative work. Even though we’re friends and it may feel uncomfortable to make me sign legal paperwork, always have your subjects sign a release form.

If you’re shooting a documentary, a release form is even more crucial. Why? Because the subject is being recorded as their actual self. On the flip side, if you’re creating social media content that is ephemeral but has the potential of going viral, your subject’s right of publicity could still come into play.

What if you skip it?

What can happen if you don’t have a release form signed? Your subject can get cold feet right when you decide to publish. You won’t be able to distribute your final product. This will preclude you from using any footage or soundtrack of that person. If they’re central to your video, that can be a disaster.

If you publish the work, your subject can come to you after the fact and demand compensation. Or, they can force you to take down the content if they suddenly don’t want their likeness publicized. Bottom line – have a video release signed at the beginning of each shoot. Make sure your subjects sign it before moving forward with the project.

Are there other ways of getting permission?

The short answer is yes — you can get permission from someone through an audio/video recording, or a non-recorded verbal release. However, these methods are not recommended.

Let’s say you forgot the release form, but you’re already on location and only have an hour to shoot. You record on your phone, or on camera, the person stating their name and giving you the right to use their name, image, likeness, voice, etc. in a video. While this can be sufficient in a pinch, it’s not ideal.

First, you run the risk of the person not exactly understanding what they’re agreeing to. This can still lead to trouble down the line. Second, there may be instances where a written release is actually required. This may depend on things like how much the person is getting paid or how long you intend to display the video.

The weaker but still potentially viable way of getting permission is through non-recorded verbal consent. While appropriate in some circumstances, the potential issues with this method of release are plenty. Memories of exactly what was agreed upon can fade. There may be a serious misunderstanding of terms, and it may even be illegal depending on what state you’re in.

Ultimately, it’s best to have everything spelled out in writing. This way you, your subject and everyone else are clear from the beginning.

Resources to help you learn more

The good news is that you can get started with a good video release form by using free templates that are available online. We also recommend that you have handy — perhaps saved somewhere on your smartphone or another mobile device — a template audio release script, just in case you forget to bring your written form.

Of course, as with any contract (a video release is, after all, a contract). It’s always better to tailor it to your specific case than settle with pure boilerplate language. Even better, if you can get a lawyer to help you, go for it– especially if your project is complex, expensive, or if you’re working with a large number of subjects. Nonetheless, don’t fret if the thought of reviewing contract language sounds daunting — having even boilerplate language at a minimum is superior to a word-of-mouth release. The goal is to get you thinking about some of the mundane, albeit important legal requirements of shooting other people for your video project.

Mark Levy and Roman Zelichenko
Mark Levy has been contributing articles to Videomaker magazine since 1988. He is past president of the Amateur Movie Makers Association and has won awards internationally for his short films and videos. He practices intellectual property law (patents, trademarks, and copyrights) in Evergreen, Colorado.Roman Zelichenko is Founder & CEO @ LaborLess. Entrepreneur. Lawyer. Writer. Improviser. Climber. Snowboarder. Eater. Traveler.

1 COMMENT

  1. Hi,

    I’m a community film maker in the UK, and we in Europe have a further complication in filming people. Since May 2018 the GDPR (General Data Protection Regulation) classifies faces as data, which means that I cannot record / publish images or video without specific permission from the individual.

    This makes recording of images in crowded places impossible to achieve in practice, as it is not practical to get written permissions from a crowd. Furthermore it seems that even if written permission is obtained, the subject can withdraw that permission at any time – not a situation a filmmaker wants to be in after a week’s editing and publishing on YouTube!

    I’m sure a follow-up item of the perils of photography and video making in public places in Europe would be essential reading for your readers over the pond.

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