Is it Legal to Film People Without Their Permission?

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Fact-checked by Layla Varela
Editor
Updated on: May 17, 2023

Filmmaking is an art form that requires creativity, technical skills, but also legal knowledge. One of the most significant legal issues filmmakers face is the legality of filming people without their permission. 

In the United States and other countries, laws and regulations govern using someone's image in a film or video production. Therefore, filmmakers need to understand these laws to avoid potential legal issues and to protect the rights of the people they film. In this context, we will explore the legal considerations filmmakers should consider when filming people and why it is crucial to be aware of the law in and outside the U.S.

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First of all, here is an example to start with

Let's look at a recent case involving tennis player Maria Sharapova. A production company called Byzantium had permission to film her. Still, they used footage of her playing without her approval and even put her pictures on the video boxes without consent from her agency, SW19, Inc. 

When a court in Florida was asked if this infringed Sharapova's trademark rights, it ruled that it did not. However, there was still uncertainty about whether the films violated any rights in Japan, where one of the films was distributed.

Here's the catch: even though Byzantium technically won the case, they still suffered a loss. The threat of a lawsuit scared off potential distributors for the films, meaning that copies of the movies still need to be sold. So, while the filmmakers may have technically been in the clear legally, they still ended up losing the war.

Filmmaking and the Law

According to most state laws in the U.S., people don't have many privacy rights when they're out in public. The First Amendment protects filmmakers, documentarians, and news crews; however, some areas can cause trouble for filmmakers.

How does it work in other countries? Here is the case of India

In India, the legality of filming people in public is governed by a combination of laws, including the Indian Constitution, the Information Technology Act 2000, and the Indian Penal Code.

Under the Indian Constitution, individuals have the right to freedom of speech and expression, which includes the right to film or take photographs in public places. However, this right is not absolute and can be subject to reasonable restrictions, such as in the interest of public order, decency, or morality, or to prevent defamation or incitement to an offense.

On the other hand, the Information Technology Act 2000 also addresses the issue of filming people in public. Section 66E of the Act makes it illegal to capture, publish or transmit the image of a private area of any person without their consent. However, this provision applies only to remote locations, not public places.

In addition, the Indian Penal Code contains provisions to prosecute individuals for filming people in public without their consent.

For example, Section 354C makes capturing or distributing images of a person engaging in a private act without their permission a criminal offense punishable with imprisonment.

Overall, while there is no explicit law prohibiting filming people in public in India, individuals should be mindful of their actions and respect the privacy and dignity of others.

Commercial use of photographs taken in public places

When it comes to photography and using images for different purposes, it's essential to draw a clear line between commercial and all other uses. 

Even though the First Amendment in the U.S. protects most forms of speech and expression, it's not as protective of commercial speech. So if you plan to use someone's likeness for a commercial purpose, you'll almost always need their written permission first.

For filmmakers, it can be helpful to separate types of content into two categories: 

  • Commercial: TV commercials, promotional videos, and advertisements. 
  • Non-commercial: Narrative films, documentaries, and news are typically non-commercial. 

That can help you determine what kind of permission you need to get from the people you're featuring in your work.

Understanding the Right of Publicity for Filmmakers

Knowing about the right of publicity laws is important if you're a filmmaker. These laws are in place to protect people from having their likenesses used without their permission for commercial purposes. That means that if you're making a corporate video or commercial that features someone, you need to have their signed authorization or risk getting sued for violating their right to publicity.

For example, let's say you film your neighbor washing his car and use that footage in a TV commercial for car wax. Since you're using your neighbor's image for commercial purposes, you need their permission to use the footage.

However, thanks to the First Amendment, the right of publicity in the U.S. rarely apply to filmmakers doing expressive works like movies, news, documentaries, and narrative TV programs. That means you don't need to obtain publicity rights from the estates of people featured in your film or show, even if you're using it for promotional purposes.

For instance, let's say you shoot a narrative film about the true story of the crew of a fishing ship that perishes in a storm. Then, you can distribute your movie or make TV commercials advertising your film without needing to obtain publicity rights from the estates of the deceased crew members.

Using famous people's names and images in films: What you need to know about trademarks

When making a film, it's common to want to include the name or image of a famous person. However, this can get tricky regarding trademark infringement and false endorsement. Trademarks are used to identify the source of goods or services. Therefore, winning a lawsuit against a filmmaker who didn't use a person's name or image for commercial gain can be difficult.

Generally speaking, using a celebrity's name or image in a film is okay if it's relevant to the story. But filmmakers need to be careful not to make it look like the celebrity has endorsed the movie when they haven't. 

For example, if you make a documentary about Tiger Woods, you're not necessarily breaking trademark laws or implying that Tiger Woods endorses your film. However, if you called your film "Tiger Woods Presents an Expert Guide to Golf," it would be a different story. That would make it look like Tiger Woods was endorsing your film, and you'd need his permission for that.

Getting sued for defamation in film

It is always possible that, sometimes, people feel they were portrayed in a false and damaging way when appearing randomly on camera. Then they sue for defamation or libel. 

However, feeling unflattered, annoyed, or embarrassed won't hold up in court. Only public figures like famous people and politicians have a chance of winning. They must prove that the filmmakers knew their portrayal was false or showed reckless disregard for the truth.

On the other hand, filmmakers can get in trouble when they make non-public figures look bad in a fake and scandalous way. 

For example, ABC News showed footage of a black woman walking down the street while journalists told a story about prostitution. But she wasn't a prostitute at all! She was just a regular person walking around and didn't know they were filming her. When she sued for defamation, the court said the broadcast could be considered defamatory.

Conclusions:

  • Even if you think you have the right to film people in public, it's more complex than that. There are a lot of legal rules and differences from state to state and country to country that can make it tough to know what's allowed.
  • If your film gets shown worldwide, you might have to deal with stricter laws from other countries. For instance, something okay in the United States might be illegal in India, Japan, France, or Germany.
  • The bottom line is it's better to be safe than sorry. Even if you're technically within your rights, you don't want to get caught up in a costly lawsuit. Your best bet is to ask for someone's permission before filming them.

THIS ARTICLE HAS BEEN PREPARED FOR EDUCATIONAL AND INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE OR A LEGAL OPINION. ONLY YOUR ATTORNEY CAN ADVISE YOU WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC CASE AND SITUATION.Portions of this article were taken from the book, The Pocket Lawyer for Filmmakers by Thomas A. Crowell. Crowell can be reached at www.thomascrowell.com

Lorena M. Rodas leverages her experience across film, writing, and production to make complex tech concepts accessible through storytelling. With a background spanning sci-fi, AI, and emerging tech, Lorena translates her depth of knowledge into engaging, educational content. She is an expert at decoding high-level topics to reach broad audiences.
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