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LEGAL

56 VIDEOMAKER >>> JUNE 2019

cludes our name, what we sound like,

how we look and other potentially

unique, identifying characteristics.

The right of publicity protects us. It

shields folks from having their defin-

ing characteristics used for commer-

cial or other public purposes without

their consent.

Let’s say you’re shooting a gangster-

inspired web series and I agree to be

part of it. We meet on set and you bring

your gear. I bring my best Al Pacino im-

pession, and we film for a few hours.

You might be surprised to learn that

you still need a release. I retain my

right of publicity over that footage if

I haven’t released that right, even if

we’re good friends.

This is where release forms come

in. They are a waiver of the right to

publicity over a specified creative

work. Even though we’re friends and

Getting a signed release form is one of

the most important rules to remember

whenever you’re filming or photograph-

ing human subjects.

This basic but crucial step gives you

permission to use footage of that per-

son. A signed release also grants you

control over what you can do with the

final product. Plus, you’ll have peace

of mind that you’re protected from

unwanted lawsuits down the road.

In this article, we’ll define the right

of publicity. Simply put–that thing

your subjects are letting you use by

signing a release form–themselves.

Then we’ll explain why release forms

are important. We’ll share some infor-

mation about release forms. Plus, we’ll

also provide resources you can lever-

age if you want to create your own.

To wrap up, we’ll explore a few other

potential ways of getting permission

for when you’ve left your release

forms at home.

While this article doesn’t consti-

tute legal advice, it’s meant to help

you start thinking about some of the

important legal implications of filming

people and distributing that work.

The right of publicity and why you

need a release form

According to the American Bar Asso-

ciation, the right of publicity, “protects

any recognizable aspects of one’s

persona, such as one’s name, photo or

likeness, and prevents the unauthor-

ized commercial use thereof.”

In other words, the right of public-

ity is the right each one of us has to

the things that makes us...us. This in-

The importance of release forms

Whether you’re working on a

documentary, hip hop music

video, or social media ad, certain

components are key. If you’re

recording people, you must make

sure they sign a release form.

by Mark Levy & Roman Zelichenko

it may feel uncomfortable to make

me sign legal paperwork, always have

your subjects sign a release form.

If you’re shooting a documentary, a

release form is even more crucial. Why?

Because the subject is being recorded as

their actual self.

Additionally, if you’re creating social

media content that is ephemeral but

has the potential of going viral, your

subject’s right of publicity could still

come into play.

What if you skip it?

What can happen if you don’t have a re-

lease form signed? Your subject can get

cold feet right when you decide to pub-

lish. You won’t be able to distribute your

final product. This will preclude you

from using any footage or soundtrack

of that person. If they’re central to your

video, that can be a disaster.

If you publish the work, your subject

can come to you after the fact and

demand compensation. Or, they can

force you to take down the content if

they suddenly don’t want their likeness

publicized. Bottom line – have a video

release signed at the beginning of each

shoot. Make sure your subjects sign it

before moving forward with the project.

THOUGH IT MAY BE UN-

COMFORTABLE, ALWAYS

HAVE YOUR SUBJECTS

SIGN A RELEASE FORM.

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LEGAL

VIDEOMAKER >>> JUNE 2019 57

The importance of release forms

LEGAL JUNE 2019

Are there other ways

of getting permission?

The short answer is yes — you can get

permission from someone through

an audio/video recording, or a non-

recorded verbal release. However, these

methods are not recommended.

Let’s say you forgot the release form,

but you’re already on location and only

have an hour to shoot. You record on

your phone, or on camera, the person

stating their name and giving you the

right to use their name, image, likeness,

voice, etc. in a video. While this can be

sufficient in a pinch, it’s not ideal.

First, you run the risk of the person

not exactly understanding what

they’re agreeing to. This can still lead

to trouble down the line. Second,

there may be instances where a writ-

ten release is actually required. This

may depend on things like how much

the person is getting paid or how long

you intend to display the video.

The weaker but still potentially

viable way of getting permission is

through non-recorded verbal consent.

While appropriate in some circum-

stances, the potential issues with this

method of release are plenty. Memo-

ries of exactly what was agreed upon

can fade. There may be a serious mis-

understanding of terms, and it may

even be illegal depending on what

state you’re in.

Ultimately, it’s best to have every-

thing spelled out in writing. This way

you, your subject and everyone else

are clear from the beginning.

Mark Levy has been contributing articles to Vid-

eomaker magazine since 1988. He is past presi-

dent of the Amateur Movie Makers Association

and has won awards internationally for his short

films and videos. He practices intellectual prop-

erty law in Evergreen, Colorado.

Resources to help you learn more

The good news is that you can get

started with a good video release form

by using free templates that are avail-

able online.

We also recommend that you have

handy — perhaps saved somewhere

on your smartphone or another mo-

bile device — a template audio release

script, just in case you forget to bring

your written form.

Of course, as with any contract —

a video release is, after all, a con-

tract — it’s always better to tailor

it to your specific case than settle

with pure boilerplate language. Even

better, if you can get a lawyer to

help you, go for it– especially if your

project is complex, expensive, or if

you’re working with a large number

of subjects.

Nonetheless, don’t fret if the

thought of reviewing contract lan-

guage sounds daunting — having even

boilerplate language at a minimum is

superior to a word-of-mouth release.

The goal of this article is simply to get

you thinking about some of the mun-

dane, albeit important legal require-

ments of shooting other people for

your video project.

You can comment on this article by going online:

http://www.videomaker.com/?p=72007602

Even if you’re

working with

someone you know

and trust, it’s still

important to have

them sign a release

form to avoid

future issues.

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