Recently we've had some readers asking questions about my recent interview with attorney Mark Rosenberg on "right of publicity" video issues with online video marketing. Questions such as: How can you get permission from large crowds to be in a video? Is the business or venue owner's consent enough or not? How can patrons be made aware of video recording on the premises, that protects yourself? I asked Mark for a follow-up interview to these questions, and now you can read all of his answers here!
Here are several of the questions from our readers on right-of-publicity issues with online video for commercial (business) purposes:
"We shoot local business videos but we shoot anything from small restaurants to large clubs. My question is: How do you mitigate the legal risk when you're shooting a club with 1,000s of people? There's no way they can all sign documents. Up until now, our understanding is that you need to have a sign saying filming in progress, which we clearly display?”
"I've always understood that the business owner is the only permission needed?”
"How do you deal with large crowds like night clubs? I don't see much of a difference when compared to filming sporting events or concerts under these circumstances there aren't any signed documents although I'm sure its compared in some the fine writing on a purchased tickets. Along those lines doesn't a patron give their consent when they step into a restaurant or a nightclub?”
And now, here are attorney Mark Rosenberg's answers, along with my own tips for relating and applying each issue to a small-to-medium (SMB) business client.
Make Patrons Aware of Video Recording
"With respect to shooting in clubs with lots of people: What is typically done is large signs are posted at all entrances stating that filming is taking place and that by entering club, patron consents to all uses of tape." Says Mark. "Ideally, the company doing the shooting should hand all patrons a document explaining this as well. The reason being, the more times the patron is given the opportunity to see the notice, the harder it is for the patron to argue that he/she did not know what was happening.”
My SMB Video Tip:For the jobs I do with videographers, we post a prominently-displayed flyer on all entrances to the venue, and sometimes on the glass windows near the entrances. The document usually is something to the tune of "Filming in Progress: By entering this establishment, you agree to allow for your image to appear in our videotaping and photography for any and all commercial purposes." (Not exactly like that, but you get the idea.)
Business Owner Consent is NOT enough
And to the second question: "No, the consent of the club owner is not enough. The consent of all persons appearing in the video is required. Consent is not automatically given by stepping into a nightclub or restaurant.”
SMB Video Tip: If you are shooting at a dark club or venue (including an outside venue), you're not necessarily going to have the best opportunity to post a large sign by any entrances. Instead, try whatever means that you have for communicating with the event patrons, such as on the actual ticket to that event. "Sporting events and concerts often have fine print on the back of tickets regarding consent to be videoed." Says Mark.
And, if its not a ticketed event, then have fliers handed out to all patrons… have an public announcement made over the speakers at regular intervals… whatever it takes to show a reasonable effort has been made.
News Reporting can Override Right-of-publicity Issues
What also matters legally is if a crowd scene from a venue is being for news and reporting purposes, as opposed to commercial purposes. If it's the former, then the right of publicity typically does not apply, says Mark.
SMB Video Tip: Of course, most of our readers would likely be doing video for commercial purposes, or at least not news-only/reporting-only. This also applies if you're shooting video of what's considered a "newsworthy" event that you're attaching any commercial advertising or promotions to later. If you are going to do any video coverage which you don't want to have to deal with any right of publicity issues (or just didn't get any individual waivers from the venue owner or those appearing on camera), be sure to keep the actual video content itself strictly news (like we do at ReelSEO!), and avoid any editing, post-production or marketing that makes your video appear like it is more of a commercial endorsement piece.