Ask the New Media Attorney: Model Releases and Privacy

[This is the latest column from Tubefilter News’ resident new media legal expert, James C. Roberts. Last time he tackled reader questions on whether Delaware is the right place to incorporate in new media and online entertainment. This week reader question is about when a producer needs to make sure they have releases signed for a new media project.]

Q: If I shoot video at a retail place of business to create a web commercial for that company can I shoot random customers within the store (not interviewing them) without model releases from them? Where is the line for “reasonable assumption of privacy”?

The line for “reasonable assumption of privacy” is rapidly changing, but with little or no effect on the need for releases. A release of some form or another is pretty much always necessary but it can come in several different “flavors,” depending upon the venue and the state. If you attend a baseball game, you will often find a release printed on the back of the ticket. In some places that release is backed up by notices posted that have similar language, though it is not entirely clear that a notice alone would be sufficient. It does not sound like this retail establishment provides such blanket releases.

Your agreement with the client might already require such releases. It might not be explicit. For example, there might be a representation and warranty that the creator (small “c” for those of you religiously inclined) owns or holds all of the necessary IP rights.

Various privacy rights relevant to your question are based on state, rather than federal,

law. California law (including case law) is fairly protective. Earlier this year Corbis got in trouble in California for licensing photographs of identifiable surfers. Apart from legal requirements, releases make sense for the client as well as for the creator. They are the ones with the deep pockets, meaning that they will be a big target for enterprising plaintiffs. So, get the releases.

Have a legal question?

James C. Roberts III is the Managing Principal of Global Capital Law Group and CEO of the strategic consulting firm, Global Capital Strategic Group. Between the two groups there are offices in California, Colorado, the East Coast, Shanghai and Milan. He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies. Mr. Roberts speaks English and French and, with any luck, Italian in the distant future. He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California Berkeley. Have a question? Email James

This ‘Ask the New Media Attorney’ post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented without seeking the advice of counsel in the relevant jurisdiction. Tubefilter, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.

Top photo by cletch.