Showing camera footage of others without permission - is it legal?

Factual Questions
21

Again, as others have explained, if it’s for news or editorial purposes, then there is no requirement for a release. Releases are generally only required for commercial use.

It’s worth noting, too, that the definition of “commercial” for these purposes is NOT simply that the photographer or the media outlet might make some money from it. Many photographers make money by selling their photos and videos to news outlets, as described pulykamell above. Many news organizations also make money from the images and videos they create or purchase, by selling their stories, and by running ads. But that’s not really what commercial use means in this context. The fact that a media outlet might be a for-profit business does, by itself, not constitute “commercial” use of a picture or video.

Commercial use in this context tends to mean advertising or promotional use associated with a particular product or service. But it’s not quite that narrow, either. If the subject of your photo can, through the way the image is used, be perceived as supporting or endorsing an idea or philosophy or specific organization (not just a product or service), then you have to be careful.

Take your example of a Trump supporter punching a protestor.

If you want to display that image in connection with a news story about the protest, or about the current state of politics, or about the predisposition of Trump supporters to violence, or any one of dozens of other possible news stories where the image is relevant, you would be fine without a release. If you wanted to use it to illustrate some commentary about the sad state of American political discourse, or about how Trump supporters are the only ones with courage, or whatever, that would be fine too. And those things would be fine even if you make money from your news or editorial articles.

But if you show the image with the caption, “Red Bull really packs a punch,” you’re going to need a release, because you’re directly associating the subject with a specific commercial enterprise, and implying some sort of connection or endorsement.

And if you use the image in a National Rifle Association poster, with the caption “Here’s how we defend our second amendment rights,” you’ll probably also need a release, even if you donate the picture to the NRA, and even if the NRA is a non-profit organization, because the use of the picture suggests a connection between the subject and a particular organization and set of ideas.

And as one of the links provided below notes, there are even cases where editorial use can lead to someone suing you if your use of their likeness does harm to their reputation. There are, at the margins, quite a lot of grey areas here. The borderline cases often come down to questions of newsworthiness, the public’s right to know, and whether the harm to reputation is greater than the informational value of using the image.

These links touch on some of the important issue:

http://artlawjournal.com/need-model-release/

http://www.pdnonline.com/features/What-Photographers-N-10515.shtml

22

David Letterman fans may remember the infamous Peach Lady from 20 years ago. She was attending the US Open and eating a peach rather sloppily. She was also heavyset and unattractive. Letterman showed footage of her several times without really commenting, the footage was it’s own joke, and it got big laughs so she sued. Her side was she was being unfairly made fun of, which was kind of true, CBS’ side was that printed on the US Open tickets themselves was a declaration that footage of you may be recorded and used, which was also true.

According to another Google article Letterman settled with her for an undisclosed sum. Interestingly, the images must have been expurgated from CBS’ library because Googling for ‘Letterman peach lady’ images does not come up with a single one of her…

23

There are plenty of jurisdictions where it’s simply not legal. Some places, like Spain, don’t even want you to take the picture in the first place except with permission.

Anyway, FWIW, many years ago Melbourne used to have weekly radio crime report – that the young hoods used to tune into every week to see if they’d made the news – nothing new about wanting to be famous :slight_smile:

24

But that’s money going to Youtube, not to the photographer who took the videos.

And smart people use ad blocker software to eliminate those ads.

25

Monetized YouTube videos are profit-shared between YouTube and the video owner, and sometimes ancillary rights-holders (e.g. if music is used.)

26

Like it’s been said before, editorial and news do not generally require releases. For commercial work (which pays a whole lot better too) releases are usually required even for body parts (like hands) and recognizable structures (like interiors or facade). Some public spaces may also contain protected works of art.

As an example, pictures of the Eiffel Tower at nitght are protected by copyright, as is Copenhagen’s Little Mermaid, and that giant soap bar thingie in Chicago.

If you shoot something newsworthy at those places, or most private places, it can be used in the news.

27

So what law could you be charged under if you filmed someone speaking to camera in a public place, didn’t get a release form and publish it commercially? Then the person objects. I know getting release forms is common industry practise for very good reasons, but is it strictly necessary by the law? (Assume US California for example)

28

You would not be “charged” under a law, it is a civil matter. The person who objects would have cause to sue you for violation of their publicity rights. Publicity (or personality) rights are akin to a generally-recognized trademark that everyone owns regarding their own image, and people can contract for and license those rights if they choose.

In the US, most states have established personality rights by statute, but they have their origins in the common law tort of “passing off”.