Question about "Releases" for Documentary & Stock Shooting

[Tom Lowe]

I'm wondering whether I will need to obtain releases for individuals I film, and I'm also wondering whether the requirements for such releases are based on the type of project you are shooting?

For narrative projects, you definitely need to get releases from all the actors and anyone "recognizable" in a movie, video or commercial, right?

What about documentaries? Don't you get some leeway with documentaries, since they are essentially a form of "news gathering," or am I wrong about that? Do I need to obtain releases from people I shoot in a doc?

I assume that the rules are different for stock footage shooting for places like Mammoth, Getty, Corbis, Artbeats, etc?

Let me give an example. What if I shoot some beautiful footage of a family on vacation swimming in the Merced River at Yosemite at sunset? If I want to use that shot in a Baraka-style "non-narrative" (sort of a documentary) film, do I need releases from all the family members and anyone else in the shot?

What if I want to put that very same clip up at Getty or Corbis? Will I need releases? I guess the reason it might be different for stock houses is that those clips could eventually be used in films, music videos, commercials, etc, if they are sold as stock?

Thanks

[Alexis Hanawalt]

Stock libraries and TV networks will require releases for absolutely every face you can see clearly on screen.

Other outlets will be content with whatever your E&O policy is content with - which might be more lenient based on a lot of factors, but for the most part is based on whether any reasonable person could ascertain that the subject had consented to being filmed.

Crowds are often cleared with blanket releases - like the signs you see at concerts which state "You may be filmed, etc..." which the videographer then actually shoots and includes in their footage to prove that anyone entering would have seen the sign.

You can also have verbal releases where the subject states and spells their name and says "I give [Filmmaker/Production] permission to you me/my image in this film." Paper releases are always preferable.

If the subjects are in complete silhouette, it can sometimes slip through.

The only exception to all of this for documentary use is "breaking news" like disasters, etc.

**I've edited 2 feature documentaries, both with hundreds of people appearing in them, and every single face had either a signed signature or a verbal release. The ones that didn't, didn't make the cut as per E&O.

[Tom Lowe]

Jeez, that sounds kinda rough. :(

[John Moores]

For documentary you will need releases for people who speak to camera, or are clearly recognizable. People doing things in the distance who are essentially part of the background wouldn't require a release. (In my experience...)

The main consideration would be the release policy of the people you're shooting for, or the organizations you hope to sell the footage to.

[Tom Lowe]

For documentary you will need releases for people who speak to camera, or are clearly recognizable. People doing things in the distance who are essentially part of the background wouldn't require a release. (In my experience...)

The main consideration would be the release policy of the people you're shooting for, or the organizations you hope to sell the footage to.

My documentary is similar to Baraka in the sense that there is no one on camera speaking. It's just a series of moving pictures. Does that make a difference at all?

If I'm shooting the doc on spec, hoping to sell it to PBS or Discovery, for example, how could I find out their policies in terms of these release forms?

This whole release thing kind of scares me. I'm afraid I would get some great, epic shot of someone doing something, and then not be able to get them to sign a release. :umm: What if I'm shooting from a moving vehicle, for example, and someone passes me on a motorcycle, and a I get a really great shot of them cruising by. Do I have to flag that person down, pull them over, and whip out my documents? :sad:

[martinnoweck]

tom,

just coming back from a documentary shoot - the easiest way to obtain a release is to offer for example 50 - 100 euros and make them sign the release in exchange for the money.

regards,
martin

[martinnoweck]

another problem: a network or tv channel will make you sign a release, which releases them from potential complaints - at least here in germany.

regards,
martin

[Stacey Spears]

Along the same lines, what about permits? Lets say you shot something in city, but on private property vs. public. Do the clients ask to see the permits used for the content?

I was thinking of the run & gun cituation where you might have forgone the permit.

[Stacey Spears]

I am also curios to art. If you are at a public park, there might be a piece of art in the park. Someone probably owns the copyright on that art.

[John Moores]

Tom, if you're making your own film on spec, and hoping to sell it sometime down the line then it becomes less of an issue.

If you were producing something for Discovery Channel (for example) and you didn't get releases, you would be very screwed. Everyone who talks on camera needs a signed release. If you're shooting something that includes large numbers of people (a party or gathering of some kind) where you may not be interviewing people, but you can recognize them as individuals in the BG, you'll need a release, or as someone said before, you'll need to post a blanket release at the door saying "You may be photographed, by entering you waive all rights etc etc...".

With the kind of film you are thinking of making it's less of an issue. Think of it this way; what's the object of your shot? If it's a sexy girl full frame then the shot is obviously about *her*, and she's going to need a release. If your shot is a beach full of sexy girls, then the shot isn't about any particular individual, and as such a release isn't needed.
If you're shooting a landscape out the window of your car and a motorcycle flashes past, the shot is about the landscape not the motorcycle right? That's maybe one way to approach it.

One other thing>if people are in public, they have no expectation of privacy, so a release is less important. And, I'm from Canada, and we don't enjoy suing each other as much up here, so your results may vary ;)

If you're thinking you might want to sell something to PBS then call them up (or look online) and get a copy of their producer's guidelines.

Hope that helps
Jm

[Tom Lowe]

Haha, if it was up to me, I would throw those releases out the window. :) What is the fear, that I would be sued by the people in the movie in US courts?

Let's take the guy on the motorcycle again. The shot I am thinking about is definitely about him. Let me give a similar example --- one of my favorite shots from Baraka, which was shot (overcranked) from a moving car in Cambodia (Vietnam?)....

http://i34.tinypic.com/4zyy5d.jpg

Obviously, the shot is about the family on the moped. Would I need a release from them?

It just seems to me that many of the most magical moments are very spontaneous (sometimes instantaneous).

[jpp]

Unfortunately, there's no simple answer to your question. It often comes down to whether, or to what extent, you're exploiting the images for financial gain, where you're showing the film, how widely you're showing the film, and the broadcaster's assessment of his or your potential liability, including the likelihood of any persons whose images you've captured objecting to the work or demanding compensation.

Take the shot you posted. How long is it on screen? And in what context -- central subject or just momentary passing image among many others? Would you be commenting on these people or their behavior in some way to which they might object? Did you turn their image into a valuable commercial property in which they have a right to share? If so, you might be in trouble, without a release.

The best thing to do is talk to potential buyers, but even then, you may have a hard time getting a straight answer, because they'll want to protect themselves by giving you the most rigid requirements, whether or not they actually enforce those requirements in practice.

You WILL have to sign a statement that you hold all necessary releases. Whether they demand to see those releases or not is another question. Note that even festivals tend to require your signature on that clause, though it's violated all the time with impunity, particularly with unsecured music rights. The requirements for non-commercial screenings are not the same as for commercial ones, though this area is also murky.

[Tom Lowe]

I appreciate your help. But I'm still pretty confused about this.

If I capture a 15-second shot of, say, a fisherman in the Sierras at sunrise, and we can clearly see his face and all of that, on what grounds could he come after me legally in court? I guess what I am trying to get at is, what are the legal grounds for people objecting to being included in a sort of travelogue-type of documentary? What if I film a wino waking up in a gutter in Las Vegas? Do I have to get him to sign paperwork?

[jpp]

I appreciate your help. But I'm still pretty confused about this.

If I capture a 15-second shot of, say, a fisherman in the Sierras at sunrise, and we can clearly see his face and all of that, on what grounds could he come after me legally in court? I guess what I am trying to get at is, what are the legal grounds for people objecting to being included in a sort of travelogue-type of documentary? What if I film a wino waking up in a gutter in Las Vegas? Do I have to get him to sign paperwork?

I'm not a lawyer, so be warned. But I believe it comes down to a two basic issues: 1) exploiting someone's image for commercial gain without his/her permission, and 2) impugning someone's character or causing harm in some way or other by broadcasting uncleared images of said person (for example, you didn't enhance that wino's image, by showing him in the gutter). There's a general presumption that your face and mine won't turn up on TV as a foreground subject in someone else's commercial project, without permission.

If I were you, and the budget was relatively modest, I'd get releases where possible, and screw it where not possible. But that's not legal advice, and you might end up with a film with a limited potential for screening.

Best thing, talk to an entertainment lawyer, or better still, try to hook up with a non-profit indie or documentary association which can give you better guidance, based on their members' actual experiences. What about IFP-West? Or did they change their name, after breaking off with IFP-East?

[Alexis Hanawalt]

It wouldn't satisfy a network - but for an indie feature, an adventurous E&O insurer might actually allow a lot to fly in the context of a Baraka-style doc... the idea being that your first amendment right to tell your story the way you want to shouldn't be hampered by other legal obligations. (As long as there is evidence that you made your best effort to get releases whenever possible.)

To the permit-related question... we shot in the Great Mall of America w/o permit and used the footage... the E&O people said once the footage is in the can, it's clear. A lot of owners of famous buildings claim that you'll need their permission to use the building - but that's basically b.s.

[Tom Lowe]

I'm not a lawyer, so be warned. But I believe it comes down to a two basic issues: 1) exploiting someone's image for commercial gain without his/her permission, and 2) impugning someone's character or causing harm in some way or other by broadcasting uncleared images of said person (for example, you didn't enhance that wino's image, by showing him in the gutter). There's a general presumption that your face and mine won't turn up on TV as a foreground subject in someone else's commercial project, without permission.

Just playing devil's advocate here, how do the paparazzi get away with it?

[jpp]

Just playing devil's advocate here, how do the paparazzi get away with it?

I think that's considered "news", believe it or not. And the rules for public figures are different. But this is when we really need a lawyer....

[M Hsu]

I'm not an attorney but I've been down this road.

Without a release, you leave yourself open to litigation and if you sell it to a distributer, at the very least they will require you to assume the litigation risk. Whether you win or lose the lawsuit is up to the courts, but it will still be your money paying for the attorneys and for the damages if you lose. Even with releases you risk litigation, but you reduce the chances of it with releases.

We can talk about what's right or wrong or reasonable or what should be, or what's a bother or what's unrealistic, but here is the cold hard truth in america.

If you film someone and commercialize that image, if they decide to sue you, you will have to defend yourself in court.

If you don't want to lie awake at night wondering if the dude on the motorcycle is going to see your blockbuster hit movie and decide to sue you for all the money you made, then by all means, chase him down and get a release.

[Alexis Hanawalt]

Just remembered something - there are a lot of stunts Jackass does that they don't obtain releases for... someone once told me they just pay $$$$$$$$ for their E&O.

[Tom Lowe]

I'm not an attorney but I've been down this road.

Without a release, you leave yourself open to litigation and if you sell it to a distributer, at the very least they will require you to assume the litigation risk. Whether you win or lose the lawsuit is up to the courts, but it will still be your money paying for the attorneys and for the damages if you lose. Even with releases you risk litigation, but you reduce the chances of it with releases.

We can talk about what's right or wrong or reasonable or what should be, or what's a bother or what's unrealistic, but here is the cold hard truth in america.

If you film someone and commercialize that image, if they decide to sue you, you will have to defend yourself in court.

If you don't want to lie awake at night wondering if the dude on the motorcycle is going to see your blockbuster hit movie and decide to sue you for all the money you made, then by all means, chase him down and get a release.

But would the guy on the motorcycle have any kind of case? And if so, on what grounds?

[M Hsu]

But would the guy on the motorcycle have any kind of case? And if so, on what grounds?

That's up to the judge to decide. There is legal precedent in both directions. Either way, if you are sued, you are going to court. Even if you win, you're going to have to have to countersue to get him to pay your attorney fees. And then even if you win that, you're going to have to hope he actually has the money AND pays it. As anyone will tell you, winning a lawsuit is only half the battle, the other half is actually collecting the money. In some cases, the agrieved party can ask the judge for an injunction preventing distribution of your movie. In a best case scenario you will lose a lot of time. Even if you think you have an iron clad case, EVERY attorney will tell you that there is a chance that you may lose. Where the trial is for instance can make a huge difference. In los angeles or new york where the judges are familiar with entertainment law is a very different case than in paducah kentucky. (nothing against paducah)

There are shows like jackass and borat that take the chance, but they do pay for it in lawsuits and paying off people. If you're going to skip releases you have to set aside money for that, or get specific insurance for it.

Getting a release isn't typically hard and if the person is very resistant to signing one, then that's the kind of person who just might sue you when they see their picture 40 feet high on a billboard. Asking someone to sign a release is also respectful and a basic courtesy. Most stock guys I know carry a release and a pen in their pockets.

In the end, not getting releases is a matter of calculated risk. If it's a crowd at a football stadium from across the field, you probably don't have to get them to sign off. If it's a guy on a motorcycle in a third world country who most likely will never set foot in a movie theater you might be able to swing that too, but just understand, no matter how small, it is still a risk.

You should consult an entertainment attorney about specifically what you want to do, perhaps there's a get out jail free card for documentaries

[Phil Bates]

But would the guy on the motorcycle have any kind of case? And if so, on what grounds?

jpp is right, it's using someone's likeness for commercial gain. Also, the other point is correct, if it is for news, called "editorial" it's a different story. Unfortunately, stock footage falls directly in the commercial category -- (some stock houses have an editorial category, Artbeats doesn't).

The statement that stock libraries will require releases for absolutely every face you see, is not quite correct. We have been in discussions with Getty on this very issue and they do not require releases for "naturally occurring crowds". I consider a crowd at least 20 or more people where one does not stand out, (so the argument cannot be made that the shot is about him/her). Crowds that are "set up" or choreographed do require releases for everyone.
We have adopted Getty's policy as our own since they distribute our footage.

Another issue to be aware of is trademarks/logos. I avoid shots with individual logos (example: an athlete, with a Nike ball cap). Groups of logos are like natural crowds in my opinion. I make sure they can't argue it's about one single trademark.

I have heard mixed opinions on shots of property. Supposedly, a case involving an image of the Rock and Roll Hall Of Fame should have brought an end to this problem of having to obtain releases. My lawyer (intellectual property attorney) says it shouldn't be a problem as long as you are not shooting while standing ON their property. It's interesting that every time I have had a question about a shot and showed it to the lawyer, he has said don't worry about it. However, I have heard of strict control of certain buildings like the Space Needle, the Eiffel Tower (at night only), the Chrysler building and the Empire State building. Casinos in Vegas are very sensitive too. I am just careful to shoot multiple buildings in each shot. Getty requires a property release if it is a lifestyle shot on someone's lawn.

Once, I was shooting aerials and got a great shot of a beautiful upscale home. I asked the pilot what he would think if it was his house and he saw it broadcast. He said he would be mad as hell. I thought he had a point, so I decided not to use the shot, and have strayed away from capturing those kind of images since.

We do keep releases with us at all times and chase people down if we think we have a good shot. Most of the time you don't have to pay them.

In ten years of selling footage we have never had a problem, but we still have and E&O policy just in case.

Phil
http://www.artbeats.com

[Tom Lowe]

Very interesting!

Man, I need to learn more about all of this stuff.

I wonder if my Baraka-style project could fall under the "editorial" banner? I would probably try to get releases in most cases anyway, though, so the footage would be more viable at stock houses.

[NateWeaver]

Very interesting!

Man, I need to learn more about all of this stuff.



There's a lot to know, and the real-world of professional work for large companies is full of these requirements.

When I work for a particular large record label, they have VERY specific requirements about what releases are needed (both personal and locations) and how they are delivered. In fact I do not get second payment on a job after the shoot until all releases are inventoried and turned in.