Many online video producers and marketers today have lots misconceptions about what whether or not they have legal permission to record video of someone and put it up online. If that describes you, then you might be interested in my interview today with Intellectual Property and Internet Media Attorney Mark J. Rosenberg, about getting proper video waivers and releases for online video producers and marketers for recording people.
We've covered the issue recently here at ReelSEO about getting legal permissions for video recording professional actors. However it's a likely bet to make that most people featured in videos for both professional and personal use aren't members of any actors union or agency, which causes some confusion for businesses about whether they need to get a release for someone who could just be an employee, a friend, or a typical person on the street.
In this article you will learn:
- Why having a waiver is important for professional online video
- What are the consequences of not having a legitimate waiver
- Common misconceptions people have about what makes for a legitimate waiver
- How to get a proper waiver for the type of video project you have
12 Frequently Asked Questions About Video Recording People and Posting Online (and Attorney Responses)
Important Note: The following content is for general information purposes only, and should not be construed as, or substituted for, professional legal advice from a qualified attorney.
The following information can apply to both personal and professional use. Online video producers, publishers, and marketers should especially take heed!
#1: What Exactly is A "Waiver" or a "Release?”
Mark explained to me that a "waiver" and "release" is typically the same thing when it applies to online video (so I'm just going to use the term "release" from herein.) Basically, a release grants the producer of the video the legal right to use in the video the image and voice of the person who signs the release.
#2: Why Do I Need A Release To Record Someone?
Without a release, the use of the person's image and/or voice can be deemed a violation of that person's right of privacy. Such a violation can lead to a lawsuit, the payment of monetary damages and an injunction prohibiting the use of the video.
#3: Do I need to get a release even if the person in the video is my friend, relative, or personal colleague of mine?
Yes. Even if you have a personal relationship with someone, you still need to have them sign a waiver.
#4: What if they're an employee of mine? Do I still need to get a release?
Yes, if you are video recording someone who works for you or your company and plan to share it outside of your company, then you do need to get a release from that person, first. Even if you only plan to keep the video for internal-use only, it is highly advisable to make clear in your work agreement that the employee will be videoed.
#5: What if I'm doing the video only for personal use?
Let's clarify that: If you're only video recording someone for your own personal and private use, you don't need a release. However, if you make a video of and put it on YouTube, elsewhere online, or anywhere a 3rd party can watch it (no matter if it's one person or many), then a release is necessary, even though there is no commercial purpose for posting the video.
#6: Why can't I just share a video I recorded of someone else with only one other person?
Even if you email only one other person a video of someone else you shot, that itself could implicate a violation of their privacy rights. Even in this case, a release should be obtained first.
#7: Why can't I just copy a release already available online?
Many people assume that a release copied from the Internet is sufficient for the video producer's purposes. But in some situations, the release may need to be altered to fit the specific circumstances of the video recording, the online distribution, and the marketing around the video.
Author's note: If you don't already have an attorney with experience in drafting releases, it's always free to check out examples of existing video releases posted online. (Google "video waiver”) Here's a few links to some video waivers and releases you might find help with drafting your own:
- "The Amazing Race" television show – video waiver and release.
- Professional Soccer video waiver
- Nebraska State College System video competition – video waiver/release form.
I also recommend doing a more filtered search based on video waivers copies or templates from businesses in your own industry, or in similar ones.
Also, and this is VERY IMPORTANT: Copying a release on the Internet may constitute copyright infringement! Unless the Website makes clear that it's available for public use, you should still write your own release.
#7: Why Can't I Just Get a Verbal Permission From Whomever I'm Recording?
There are two big limitations with this:
- First, when a release or any other contract is oral, there is always an issue of what exactly was agreed to. Making things even more difficult is that memories fade over time.
- Second, oral releases are not valid in some states, even oral releases recorded on video. In other words, in some states, an oral release is the same as no release.
#8: Why Should Online Video Marketers Work With An Attorney For Drafting Up a Waiver?
An attorney can ensure that the release is appropriate for the marketing circumstances, or other professional circumstances. Among other things, an experienced attorney should be aware of contingencies and nuances of the law that a non-attorney may not be aware of.
#9: What Permissions Should Be Included in A Waiver for Online Video Featuring People?
From the aspect of the video producer, the release should have the following qualities:
- It should be as broad as possible,
- It should not lock the producer into using the video on a particular website, and;
- It should allow full editing rights and permit the producer to use still images taken from the video.
#10: I see lots of news organizations doing online video. If I did a video of someone for news purposes, would I still need a release?
If the video is being used solely for news purposes, a release is usually not necessary. For example, if you were doing a video recording a traffic accident or a fireman making a rescue.
Keep in mind though, that there is always debate about what is and isn't news worthy. When there is a question, the best practice is to obtain a release.
Even news organizations themselves aren't immune from needing to get a release. If the news organization is using the video for ancillary purposes, a release may be necessary. Here's the distinction:
- For example, if the news organization displays a video of a speech on its website for news purposes, a release is not necessary. However…
- If the same news organization sells the video so viewers can own personal copies of the speech, a release may then be necessary.
#11: What if I'm video recording minors (individuals under the age of 18)? Can I just get them to sign a release?
Video producers should keep in mind that a release signed by a minor is most likely not enforceable. If a minor is going to be used in a video, the minor's parent or guardian must sign the release.
(Author's note: Mark also commented earlier here at ReelSEO about one fairly recent criminal case with video recording children, and what he deemed to be a very problematic release issued by the school for parents, in terms of being legally binding.)
#12: Can I ever video record someone without their permission or knowledge, even if it's considered newsworthy (or I'm just trying to protect myself)?
(The following information all comes from myself.) That depends where you live. It is illegal to video record (and audio record) someone without their knowledge in a handful of U.S. states, including my own state, Illinois. That even includes policemen and public officials out in public. Here's a quote from Reason magazine, which speaks to that issue:
Illinois is one of a handful of states that require all parties to consent before someone can record a conversation. But the other all-party-consent states also include a provision in their statutes stating that for there to be a violation of the law the non-consenting party must have a reasonable expectation of privacy.”
I also recommend checking out this article from River Cities' Reader magazine on the issue. Here's a particular quote of interest to video producers:
The potential 15-year penalty in Illinois for audio- or video-recording the activities of police has been in place since 2000. What has changed in the past decade-plus is our technology. Audio- and video-recording are now standard-issue on smart phones, and stand-alone recording devices are cheaper and far more portable. The result is that there are now millions of citizen videographers on the street.”
So basically, it's one more case of where the criminal law is woefully behind our technology, and our culture. Watch this video below, Recording a Cop Could Land You 15 Years in Jail.
About Mark J. Rosenberg, Intellectual Property Law and Internet Law Attorney
Mark Rosenberg is Of Counsel to the Firm's Intellectual Property Practice Group of Sills, Cummis & Gross P.C. and is a resident in their New York Office. For nearly 20 years, Mr. Rosenberg has assisted clients in a variety of industries in acquiring, protecting, enforcing, and licensing their intellectual property rights. Mr. Rosenberg has represented clients in a wide range of patent, trademark, copyright and trade secret matters and has extensive experience in counseling clients in avoiding and resolving intellectual property disputes.
Since the mid-90s, a large part of his practice has focused on the legal issues related to Internet marketing. He has assisted clients in reaching cost-effective resolutions of disputes relating to paid keywords, web, pop-up and e-mail advertisements, as well as domain names. Mr. Rosenberg has drafted numerous license, distribution, web hosting, website development, and list rental agreements, as well as privacy policies. He is a seasoned litigator who has successfully handled many complex patent, trademark, trade dress, and copyright actions.