ASK THE LAWYERS

Dear YNOT,

I would like your legal opinion please.

I’m walking along down the main street in Rome’s tourist area videotaping my “walking tour.” Obviously the streets are filled with hundreds of Italians and tourists from all over the world.ASK THE LAWYERS

Dear YNOT,

I would like your legal opinion please.

I’m walking along down the main street in Rome’s tourist area videotaping my “walking tour.” Obviously the streets are filled with hundreds of Italians and tourists from all over the world. I put together my little project and want to sell my video to the general public. THE QUESTION IS: Do I need anyone’s release? There is no nudity of any kind involved in this example. Would this all fall under some sort of “public domain”?

Now I stick my head in a few bars and restaurants, still no nudity. Do the folks in these places have any “expectation of privacy?” What if my camera is now concealed while I tape inside these bars and restaurants and shops?

THANKS for any and all input!

Ted
Stripclubs.com

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Dear Ted,

Filming individuals in a public setting involves three distinct sets of rights: 1) Copyright, 2) Privacy Rights, and 3) Publicity Rights (also known as the right of Commercial Exploitation). The person doing the filming is presumed to own the copyright to the video, in the absence of an agreement transferring those rights to someone else. For example, if the reader was working for a company while doing the filming, and filming was part of his/her job, the copyright would likely belong to the company, as a “Work for Hire.”

All individuals have the Right of Privacy, protecting private information from being made public. When one steps foot outside in a public place, one loses any reasonable expectation of privacy, according to most courts. Therefore, a person cannot generally claim that their privacy rights have been invaded by public filming. Some states have attempted to enforce anti-voyeurism laws, prohibiting filming up skirts, or the filming of private body parts without the knowledge and consent of the subject. Those laws are subject to considerable debate, and may be unconstitutional, given the potential infringement on First Amendment rights; especially the right of Freedom of the Press.

But, the fact that the filming may not violate Privacy Rights is not the end of the story. Every person has the right to commercially exploit (or to make money from) their image and likeness. This is known as the Right of Publicity. Although these rights are commonly asserted by celebrities, anyone can make the claim if their face, voice, or likeness is used in a commercial manner. Therefore, if the reader were to film individuals on a public street in the United States, it is unlikely that any laws would be broken, especially if the filming was restricted to clothed individuals, and not surreptitious “up skirt” photography. [Note: If the filming occurred in Rome, Italy, as mentioned in the reader’s example, the laws of Italy would apply.]

If the videographer decided to put the videotape in a vault somewhere, and only watch it in the privacy of his own home once in a while, there would be no violation. However, once the images are posted on a Website, or published in some magazine, the subjects in the film may have a claim for violation of Publicity Rights. They could seek to recover all profits made by using their likeness, as well as punitive damages in some states.

There are some exceptions to this doctrine: For example, the courts will not prevent legitimate news gathering by the press, even if it may violate the Right of Publicity. Essentially, the courts balance the public’s right to know, against the individual’s right of publicity, and usually side with the press. The filming must be of some newsworthy event, or involve a matter of public concern, to make this argument. Some media outlets have sought to exploit this “newsworthiness” loophole by attempting to profit from celebrity images, without proper releases, by pushing the limit of the law. These cases will be decided on a case-by-case basis. It suffices to say that Webmasters cannot likely use images of people taken in public, without any model releases, where no money is paid to the subjects, on an adult website. Neither the First Amendment nor concepts such as “public domain” protect the Webmaster against the claims of the individuals filmed.

Lawrence Walters, Esq. is a partner with Weston Garrou & DeWitt, and operates www.FirstAmendment.com and www.AdultIndustryUpdate.com. Nothing in this article is intended as legal advice. To reach Mr. Walters, please contact him at 407.774.5133, or by email: Larry@LawrenceWalters.com.

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