The Problem With (and Solution To) Filming In Public Spaces

Some TV and movie projects require filming outside of the studio. The reasons include the scripts having portions of the projects taking place outside, and that many non-scripted productions take place in public spaces. Of course, some productions are shot in front of a live studio audience.

The advent of socials has created a huge amount of additional visual content that gets posted. Some of this content is also shot or photographed in public or semi-public spaces.

While established, traditional production companies are aware of the need for releases from those people who might inadvertently or without their permission (I’ll now for convenience refer to these folks in this blog as “Person/s”) wind up being filmed or photographed, and from those in a studio audience, most creators of online content and those creating “gorilla” productions in public or semi-public places often are unaware of this.

In all of these circumstances, those creating the content must get releases from each Person that might wind up being filmed or photographed, and included in any content.

Why? Because failure to do so could result in problems for the content creators, including getting sued and not being able to exploit that content. And, it’s probably impractical to blur every Person’s recognizable face in the content.

Generally, people don't have the absolute right to control how their name, face, likenesses, and signatures (I’ll now for convenience refer to all of these in this blog as “Likeness”) are used. But some states, including California, do give certain people some rights of “privacy” and “publicity”. These are limited rights to control how a person's Likeness can be used by others under certain circumstances.

These can include in public and semi-private spaces, which can include on a street, at a concert, in a theater, or a pop-up store opening.

So, out of an abundance of caution and to keep my clients out of trouble (like lawsuits), I always advise them to get what are commonly known as “location releases” from every Person in a studio audience, or who might inadvertently or without permission, wind up in visual content they’re creating in a public or semi-public space.

A proper location release can cover situations where a Person appears in visual content where: 

• They’re possibly recognizable; and,

• They haven’t consented to appearing in the content.

One real world example of this was when a man was recognizably filmed as part of a crowd shot on a city street for a TV series, holding hands with a woman who turned out to not be his wife. (Oops).

Obviously, a content creator can't get signed releases from everyone who walks through a shot or is photographed. This is where location releases come in.

Having and using a proper one isn’t difficult. The location release needs to be clearly and prominently displayed before the Person enters the location where the content is being created. If the location is a closed space, like a pop-up store or studio, the release should be large, and posted at each entrance. If on a city street, it can be accomplished by posting the release on large posterboard in some very conspicuous fashion, at all entrances to the block where the filming is taking place.

A proper location release should include:

• Clear language that the recorded content is solely owned by the content creator, and they can use it for any purpose, and in any media now or later created. (Some detail, like listing uses for the promotion, publicity and exploitation of the content, is advisable).

• The Person can't use their appearance in the content for any reason or purpose;

• The description of what the content is, such as a film, commercial, or web series;

• By entering the space where the recording or photographing is taking place, anyone doing so consents to it, and any uses of it the creator wants to make of their Likeness;

• What's called “good and valuable” consideration for the possibility their Likeness may be used as part of the content;

• A release of all claims of every kind and nature now or later in existence regarding the use of the Likeness in the content, and an indemnification by the Person of the content creator regarding it;

• That a Person is at least 18 years of age, and understands the release. (If they're under 18 years of age and with a parent or guardian, then the release should also say that the parent or guardian is at least 18 years of age and understands the release. If they're under 18 and not with a parent or guardian, that could be problematic if that underage Person is recognizable in the content); and,

• If the Person doesn't agree to the contents of the release, they shouldn't enter the area.

Content creators want unfettered ability to exploit their content as they desire. A proper location release for content filming that may include Persons can help guarantee this.

Just Sayin’ ™

(c) 2024 Paul I. Menes