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Entertainment Law Asked & Answered – Filming the Audience?

In this Asked & Answered video, I answer questions about Filming the audience.




A reader wrote in…

I purchased your Podcast Blog and New Media Producer's Legal Survival Guide a while back, and found it to be an invaluable guide to copyright issues in my business. It has become my bible in what to do and what not to do. I have run across an issue in my community that I am unsure of what the right thing to do would be. And I know at the end of your publication you invite questions, so please read the following…

A private local non profit that I am associated with occasionally has concerts and speakers come in as part of fundraising events. A local videographer has approached the organization offering to film these events at no charge to the organization if he can then upload the programs to his business website. His website contains business banner ads from paid advertisers. He also sells DVD copies of these events to the public. That is how he is able to film these events at no charge. In exchange for the free filming and the ability to upload these events to his commercial website, he would then give the organization a copy of the video tapings for their archive.

I understand that the videographer would need to obtain permission in writing from both the organization and the people in the band or presentations being filmed in order to upload their images to his commercial website. But what about audience members whose likeness would also be uploaded to this commercial website. Does the videographer also need to get their permission as well? He says that all the organization has to do is write on the ticket that the event is being videotaped, and that is notice enough to cover an audience member's right of publicity.

Is this true? Are there any other liabilities the organization could incur if they decide to allow this individual to videotape and events to upload to his commercial website?

This will depend on principles of Minnesota law, both concerning right of publicity, and contract (i.e., whether the printing on a ticket forms a binding release).
But, generally, he’s right. If the ticket includes a provision that the event will be videotaped, then it’s reasonable for audience members to expect that they’ll be taped in an
incidental way..… And as long as their likeness is used only incidentally (i.e., a reaction shot), I wouldn’t think they’d have much of a claim. But if the audience member becomes
the subject of the footage… It might be a different story. Likewise, if the image of the audience member is used in an advertising way. (in the body of the content, it’s not likely
considered a “commercial” use…)

I always advise film and video crews to also use a large poster or sign at or near the entrances to any space where the cameras may be facing… Essentially saying “by entering here,
you consent to being filmed, and to the use of your appearance in any way”

Now… If you and/or others object to this kind of thing… Tell the folks who run the concerts. You can vote with your dollars, by NOT attending the events, if you don’t like what’s
happening. If enough folks object, the organization might revoke permission. You could also wear a T-shirt printed with “I DO NOT CONSENT TO BE FILMED”, or make a vulgar gesture
at the camera anytime it’s pointed in your direction. It’ll make it harder to use the footage of you.

More important, though, is that everyone seems to have overlooked the rights of the songwriters and music publishers whose material is being recorded, reproduced and distributed…
If you videotape a band performing music, the folks who wrote the songs are entitled to control how the songs are used. Obtaining those licenses would probably be the videographer’s
problem, but the organization COULD get drawn into some nasty seven-figure lawsuits, if he fails to do things by the book.

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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