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#1 Tom Hepburn

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Posted 14 October 2008 - 11:35 PM

Hey all,

I shot some footage of the Chicago Marathon last weekend. I was close to the finish line so I saw some emotional moments caught pretty close up. My questions is when does one need to get consent from a subject in a public area and when do you not. There were no interviews, only mid shots of individuals finishing.

Thanks,
Tom
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#2 Adrian Sierkowski

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Posted 14 October 2008 - 11:42 PM

I don't see how that would really be a problem. . .. It seems the same as when the news captures people walking outside, ya know? It's not like they ask for the release of the 2 old ladies who walk behind the camera in frame. 'course don't quote me on this.
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#3 David Rakoczy

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Posted 15 October 2008 - 12:33 AM

If the footage is going to be used for commercial purposes you need a General Release Form. I will email you one. News has an exemption, hence, the different ways faces are treated in the News and say a show like Cops.
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#4 Adrian Sierkowski

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Posted 15 October 2008 - 12:40 AM

I would think documentary would slip in there too for it being ok. For anything narrative, though, another trick I've seen done, is posting signs around the perimeter of your set saying that "by entering these areas you give consent to be photographed and recorded for narrative work without compensation by the production X" You'd need photographic evidence that those signs were in place around your location on the day you shot (still photo with a newspaper form the day should suffice), but it works for times you can't lock down locations (large mall b/g for example).
I should add that that sign thing is something i'm not sure is legal, but I have seen it done before. . . nd heard of it done on "pro" shoots.
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#5 David Rakoczy

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Posted 15 October 2008 - 12:47 AM

I have those Signs too...
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#6 Adrian Sierkowski

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Posted 15 October 2008 - 12:50 AM

Well that's all the assurances I need. I figured it was legal/SOP as it's really the only thing to make sense in certain situations
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#7 David Auner aac

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Posted 15 October 2008 - 07:06 AM

I should add that that sign thing is something i'm not sure is legal, but I have seen it done before. . . nd heard of it done on "pro" shoots.


Yeah, seen those too. But a lawyer specializing in media told me that those were definitively not bulletproof, lawsuit wise. He said that any lawyer with one half a brain would tear that argument to shreds in court. He insisted on getting signed releases from every recognizable person in the frame. For narrative, that is. Don't know that would change for docos.

Cheers, Dave
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#8 Tim Carroll

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Posted 15 October 2008 - 08:47 AM

My experience is the same as Dave's. On Narrative and Docs. If someone is recognizable in frame, you need a release, or they can sue you and they will win.

Another thing to keep in mind is the Chicago Marathon is an organized event. Meaning someone or someones are running it as a business and making profit from it. And many times with these organized sporting events, the organizers own the "media rights" to all moving footage shot of the event. So you need to find out or they can sue you if you "publish" any of the footage.

The reason I know this is that six years ago I was working on a documentary of a particular motorcycle racer who was about to retire. We had signed releases from the rider and every team member and everyone else associated with the doc. He was racing in an AMA series and the AMA decided to sell the "media rights" to the series to SPEED channel. Part of the deal was that SPEED channel would not only own all the media rights to the series from the day the contract was signed, but would also own the media rights to all footage shot within the past two years of the series. So we were not allowed to use our own footage(nearly 100 hours worth) of any motorcycle action that took place on a race weekend. SPEED made the exception that we could buy back the rights to use our own footage (the footage we shot ourselves at our expense) for $1000 per minute. Needless to say that didn't happen.

So you need to be really careful in situations like this. I know it seems like, "Hey, I should be able to use this, I shot it, it was out in the open, where's the problem?" But it can definitely come back and bite you in the backside.

Best,
-Tim
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#9 Fran Kuhn

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Posted 15 October 2008 - 09:52 AM

My experience is the same as Dave's. On Narrative and Docs. If someone is recognizable in frame, you need a release, or they can sue you and they will win.

Another thing to keep in mind is the Chicago Marathon is an organized event. Meaning someone or someones are running it as a business and making profit from it. And many times with these organized sporting events, the organizers own the "media rights" to all moving footage shot of the event. So you need to find out or they can sue you if you "publish" any of the footage.

The reason I know this is that six years ago I was working on a documentary of a particular motorcycle racer who was about to retire. We had signed releases from the rider and every team member and everyone else associated with the doc. He was racing in an AMA series and the AMA decided to sell the "media rights" to the series to SPEED channel. Part of the deal was that SPEED channel would not only own all the media rights to the series from the day the contract was signed, but would also own the media rights to all footage shot within the past two years of the series. So we were not allowed to use our own footage(nearly 100 hours worth) of any motorcycle action that took place on a race weekend. SPEED made the exception that we could buy back the rights to use our own footage (the footage we shot ourselves at our expense) for $1000 per minute. Needless to say that didn't happen.

So you need to be really careful in situations like this. I know it seems like, "Hey, I should be able to use this, I shot it, it was out in the open, where's the problem?" But it can definitely come back and bite you in the backside.

Best,
-Tim


Hi Tim,

Sounds typical of the AMA. And, actually, they are well within their rights to do that. Too bad it was so long ago. I can tell you it sometimes works to go straight to the rider's sponsors (the bigger the better) and inform them of the situation. It's amazing how quickly and positively these little networks respond to anyone who might buy some advertising to wrap around their specialty programing. And in the case of SPEED, they can use all the help they can get! BTW who was the rider?

-Fran
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#10 Tim Carroll

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Posted 15 October 2008 - 10:27 AM

Fran,

It was Doug Chandler and the doc was called Golden Season. It was his last year racing, after winning the AMA Superbike title three times. He was riding the Ducati 998 (such a beautiful machine). Would have been a great doc, had some really nice footage of him and racing. Oh well.

Here was one of the little promos we made before the plug got pulled on the whole doc. He was riding at an open test day at Fontana race track.
Golden Season Promo Clip

Best,
-Tim
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#11 Charles MacDonald

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Posted 15 October 2008 - 08:31 PM

He was racing in an AMA series and the AMA decided to sell the "media rights" to the series to SPEED channel. Part of the deal was that SPEED channel would not only own all the media rights to the series from the day the contract was signed, but would also own the media rights to all footage shot within the past two years of the series. So we were not allowed to use our own footage(nearly 100 hours worth) of any motorcycle action that took place on a race weekend. SPEED made the exception that we could buy back the rights to use our own footage (the footage we shot ourselves at our expense) for $1000 per minute. Needless to say that didn't happen.

That sure sounds like a good example of "copyright gone wild".

sometimes a sharp media Lawyer can pull an agreement out of the fire on a situation like that. Sometimes the only answer is to to go to court, perhaps asking for reimbursment for the work that went into what they are claiming.

There is a reason that some films have a credit for the Legal team!

IANAL, but know that they are invaluable - particularly when consulted in the early days of anything you are not doing strictly in the studio.
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#12 Tom Hepburn

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Posted 16 October 2008 - 11:48 AM

So you need to be really careful in situations like this. I know it seems like, "Hey, I should be able to use this, I shot it, it was out in the open, where's the problem?" But it can definitely come back and bite you in the backside.


That's exactly what I would have thought in a public place. Hmmm. Seeing that this isn't going to be "released" I wonder if I could at least post it on my youtube account?

Does anyone know of a free legal service (ha that sounds funny doesn't it), that could answer general questions along these lines? Or maybe a Cinematographers union? I'm just thinking out loud here.

I'm glad I asked. Thanks for the info folks.
Tom
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#13 Ira Ratner

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Posted 17 October 2008 - 07:00 PM

If you're filming a public event in a documentary fashion or for news, you don't need a release from anyone caught on film either participating in that event or viewing it. It is considered news, and whether you will ultimately be using your footage for commercial or non-commercial purposes makes no difference at all.

If you interviewed and that person SPOKE on camera, that's different. Because now that person has become "talent" in your production and is no longer part of the background material for the public nature of that event.

Be aware though that for ADVERTISING work (commercials), and non-documentary style work, they can sue your ass off.

There's just this weird distinction in the law, and for example, if you went to watch the ball drop in Times Square on New Year's Eve and they shot you up close to 200 million viewers, tough crap. You don't even get a dime for it, and you're either a national hero or national embarrassment.

But the same thing applies if you go to a public meeting of your town's knitting club:

You're now considered public, and you're fair game.
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#14 Charles MacDonald

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Posted 17 October 2008 - 08:02 PM

There's just this weird distinction in the law, and for example, if you went to watch the ball drop in Times Square on New Year's Eve and they shot you up close to 200 million viewers, tough crap. You don't even get a dime for it, and you're either a national hero or national embarrassment.

But the same thing applies if you go to a public meeting of your town's knitting club:

You're now considered public, and you're fair game.


but that same shot would need a release if it is used in a situation where it is no longer news worthy. and if that meeting is only of local "importance" and you put the shot on the natioanl news, you might still be placed in a position of defending your actions.

The only way is to get a lawyer to look at a lot of cases to find the one that fits your particular plan. They have been quite happy to see it get that complicated as it ensures that they have lots of "what if" questions to answer for a fee.

Hate to repeat, but it is best to consult a legal eagle in the planing srttages of your shoot if you are shooting for other than a scholl project or a home movie. if the folks doing the bike documnetary had asked a sharp lawyer for example, they might have made a low-cost deal BEFORE shooting for non-exclusive rights to the superbike series for the purposes of their documentary that would have trumped the subsequent deal by speedchanel , as the AMA would have no longer HAD those particular rights to sell. (having already sold them - hopefully for $1.00)

{BTW, Off Topic but the AMA has now sold All of the superbike series to another outfit and licenced the AMA name to the buyer}
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#15 John Brawley

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Posted 17 October 2008 - 08:05 PM

Hey all,

I shot some footage of the Chicago Marathon last weekend. I was close to the finish line so I saw some emotional moments caught pretty close up. My questions is when does one need to get consent from a subject in a public area and when do you not. There were no interviews, only mid shots of individuals finishing.

Thanks,
Tom



It's also different in different parts of the world. I have a feeling that the right to protecting your own self image is unique to the US. In Australia, for example, if you are in the public domain, then consent in not required.

There's an assumption that you know you will be filmed by security cameras, news cameras or a wondering film crew. By going out in public you give consent to be to be filmed by anyone with a camera. You don't have a right to privacy because you're in public.

Which is why it's OK for paparazzi photographers to stalk you from the front of your house, because they're on public property, even though you're in your private home....

It's the right to self image which I think makes the difference in the US.

jb
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#16 Tim Carroll

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Posted 17 October 2008 - 09:25 PM

if the folks doing the bike documnetary had asked a sharp lawyer for example, they might have made a low-cost deal BEFORE shooting for non-exclusive rights to the superbike series for the purposes of their documentary that would have trumped the subsequent deal by speedchanel , as the AMA would have no longer HAD those particular rights to sell. (having already sold them - hopefully for $1.00)


We had complete permission from the AMA to do the documentary. They gave us the okay and their blessing. Then two months later the SPEED deal came up and there were major bucks and major exposure(which leads to more major bucks) in it for the AMA. There was no way for us to make it financially appealing compared to what SPEED was offering, so we lost out.

Best,
-Tim

PS: By the way, I know some of the folks who bought the race series from AMA. Edmundson used to run CCS back when I used to race that series(amateur roadracing). Their plan for the AMA Superbike series strikes me as absolutely insane. Don't know what they're thinking. Gonna miss the Superbikes and the riders.
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#17 Jim Hyslop

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Posted 16 November 2008 - 04:39 PM

We had complete permission from the AMA to do the documentary. They gave us the okay and their blessing.


That definitely changes things - especially if you have it in writing. Have a lawyer look over everything you have in writing. You could very well already have rights to the event, which (as someone already pointed out) trumps any agreement AMA may have negotiated with SPEED.

--
Jim
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#18 Rob Vogt

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Posted 18 November 2008 - 07:16 AM

Also if its footage that you shot that's one thing. But if you have footage you purchased from AMA already before the agreement with SPEED that's another.
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