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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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I am an amateur "filmmaker", doing it as a hobby, by using

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I am an amateur "filmmaker", doing it as a hobby, by using consumer cameras but professional editing software to make videos that I post to YouTube. (I am primarily learning how to do video editing on my own.) I am a YouTube "partner", which means theoretically I get a share of any ad revenue from YouTube, although none of my videos have yet had wide enough viewing to exceed the threshold after which YouTube pays me.

I just made a "tour guide" sort of a video of a neighborhood of my city, which includes in a some places, identifiable shots of people shopping in public stores and markets or walking down the street. Some are borderline "featured" in that they may appear for up to 30 seconds in slow motion, fairly close up, shopping, and some even appear in the opening title. Similarly for some merchants and clerks and some restaurant owners. There are also street performers ("buskers") shown, and some protestors holding signs.

I of course do not have any "releases" from any of these people. None of them are shown in a negative light, in my opinion, except possibly the protesters (by their own actions). Some knew that I was shooting, almost all did not. (Rightly or wrongly, I have generally considered protesters that are publicly holding signs to not expect privacy.)

I guess since I am YouTube "partner", this could be considered "commercial", even though it is a hobby and I have not actually made any money yet (and certainly a profit is a long way off, if ever).

How much difficulty would I be likely to have defending myself if any of the above people saw the video on YouTube and decided to go after me for whatever reason?

If I re-edited the video to blur out the faces of the semi-"featured" ones, does that help, and how would I decide when that is necessary, since it obviously negatively affects the watchability and I would prefer to avoid that when possible?
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
How much difficulty would I be likely to have defending myself if any of the above people saw the video on YouTube and decided to go after me for whatever reason?

A: Let's suppose that by accident, Kim Kardashian just happened to be walking through a frame in one of your scenes. If her management sends you a demand for $10,000 for the "walk-on," could you pay it?

The point is that the more an identifiable face is worth, the riskier it is to have that face identifiable in your product. And, that's why the pros obscure anyone who doesn't provide a release (except in true news reporting, which is fair use).

If I re-edited the video to blur out the faces of the semi-"featured" ones, does that help, and how would I decide when that is necessary, since it obviously negatively affects the watchability and I would prefer to avoid that when possible?

A: Ironically, I didn't read your second question, until after I wrote the answer to the first question. It seems, however, that my first answer pretty much explains how you measure your risk.

Regardless, anyone could sue you in small claims for a fee equivalent to what "Central Casting" would pay for an "extra" in a film or video walk-on. SAG-AFTRA rate: $148.00 (eff. 7/1/2013).

BotXXXXX XXXXXne, be careful, unless you're doing live news.

Hope this helps.
Customer: replied 1 year ago.

It seems like this would apply to anyone who happened to be on the street at any time anyone shot any video, in the background, on a public street or in a public place. Does the fact that it is "commercial" determine this?


 


For example, I have the option for any video to not "monetize" it, meaning I'm posting it on YouTube for free and do not receive any payment for it. For this video in question, if I did not "monetize" it, then would that eliminate the ability for someone to successfully sue for the "extra" fee.

Expert:  socrateaser replied 1 year ago.
California has a specific "right to privacy" law: Civil Code 3344. Even without the law, there is a common law action called "commercial appropriation of likeness or identity," and just as its name implies, a commercial use of another person's goodwill (image, voice, etc.) is actionable in court for damages, unless consent is obtained in advance.

So, the answer is "yes," any attempt to profit from the use of another person's likeness or identity triggers liability for lost profits owed to that person.

Hope this helps.
Customer: replied 1 year ago.

I would probably extend this beyond the extent of this question to ask more, so I'm perfectly willing to open a new question regarding things like "libel" and "slander". So far we've been concentrating on the commercial use, and that's fine, so let me finish up with that and then I'll ask a separate question about libel/slander/privacy.

 

I would just like to clarify: To be clear, if I do not make any commercial use of the video (meaning I opt out of sharing any ad revenue), then that would basically "eliminate" the ability for anyone, including Kim Kardashian from successfully suing me for an appearance fee. So, aside from libel and slander sorts of things, with regards XXXXX XXXXX liability for performance fees only, I'm pretty safe if I'm not getting any monetary gain from the video? I realize nothing's absolute.

 

I'll get into libel/slander/privacy issues in a separate question.

Expert:  socrateaser replied 1 year ago.
Generally speaking, if you're trying to gain any commercial advantage from the production, then no one can claim anything. However, the common law action permits a claim to survive if the defendant cliams "some other advantage." So, theoretically, it could be that by putting Kim's image in a frame, you are gaining prestige as a parparazzi, and therefore, you should pay her for that advantage gained. Exactly how damages would be assessed in such a case is beyond me, but if anyone could figure out a way, I'm sure Kim's lawyers would find it.

So, nothing is risk free, but as a general principal, you're pretty safe as long as you're not profiting financially from your production.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34399
Experience: Retired (mostly)
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