What are the legal risks when you film in places and at events where people will inevitably wind up in the background of your shots?
Hi I'm entertainment business lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career and business to the next level.
Amber is a documentary filmmaker who recently shot fashion week, and related events. She wrote in to say:
“I am a little nervous about some of the background shots where there are people at certain events we filmed at. We filmed at a trade show and a fashion show. I figured that these were open to the public for filming since there are generally a ton of press at these on all types of media- TV, film, web series, social media, Youtube, etc.
For trade shows or public events that purposely invite press, would I be covered for that as far as legalities go? No one is in focus, but they are definitely in the background. ”
This is a tricky one, Amber.
The basic rule is that anyone who is identifiable in a shot should sign a release, unless you’ve done some kind of “poster-release” [find an example of a poster release in use]. A place isn’t really “public” unless it’s government owned, and is generally open to the public with no admission charge. So, if the attendees at an event were either “invited” or paid for tickets, it’s not going to be deemed “public”. Likewise, if an event is held at a gallery, meeting room, hotel, convention center, etc…. NOT truly “public”, and those in attendance *might* have a reasonable expectation of privacy… That they're not going to be filmed while they're in the venue, or what have you.
Now, If the background folks are truly out-of-focus, you may get away without signed releases, assuming nobody could easily identify them. (which means that you couldn’t identify them to obtain releases, either).
But if anybody has a very distinctive appearance (due to clothing, hairstyle, etc.), then the probably COULD be readily identifiable.
Bona Fide PRESS, by the way, has a slightly different standard, since what they’re covering is (presumably) newsworthy, and thus, they tend not to worry about releases so much, relying instead on strong first-amendment protections. But unless you have press credentials for the events, you’d have a harder time defending on this basis.
Bottom line? I think it’s risky to proceed with your film without blurring faces and distinctive identifiable features.
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