IP Tech Knowledgy

When using videos or pictures in your advertisement or online posting, there is some risk in including images of passersby, unless you have some form of consent, even if you are filming an event or activity you sponsored.  The Right of Publicity provides individuals the ability to stop their image from being used in ways they do not want.  However, there is a balance between this and a person knowingly being in a public space where they may be filmed and photographed.  

It is best practices for anyone filming a public event to post signs in the area informing passersby that they may be recorded or photographed, and the video or image may be used for commercial purpose, so they should avoid that area if they do not want to be filmed or used in a crowd scene.  It is even more prudent to obtain a written release from anyone who may be recognizable.  

The hard question is whether to use the video or image when some people did not sign a waiver or pass a notice sign.  The resolution to some degree, depends on the reasonable expectation of privacy of the subject.  If the filming is in a setting where someone might not think the public has full access, then permission is certainly necessary.  The more the filming area is considered open to the public, the less likely permission is required.  Someone who is outside on government property, such as a park, would likely have little or no expectation of privacy.  If the outside event is on private property, such as a parking lot, there may be some claim that it is not a public space, and a person’s images are not usable without their permission.  

Images of children carry greater risk due to laws that specifically protect children.  If the person filmed is being depicted as possibly endorsing the company posting the imagine, consent is necessary.  

Because the company posting the images may not know the perspective and concerns of everyone included in an image displayed, or whether someone depicted is litigious, it is best to have some type of permission, or otherwise blur out the participants.  

The law in this area varies from state to state.  Some states have very strong protection against use of images without the subject’s consent, other states do not address the Right of Publicity and their courts have not ruled on the issue.  

In advance, it is better to get consent or post a notice.  In hindsight, weigh the considerations above before posting a video or photo.
 

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com