Do You Have the Right to Film People in Public Without Their Consent?
Filming in public places such as parks, city streets, or right outside your studio might have you wondering what exactly the rules and regulations are in regard to privacy. Most filmmakers are well aware of the fact that consent is incredibly important in the film industry and that it is quite common for lawsuits to be brought forth for things like violation of privacy. Consent is very important, and seeking permission can be quite powerful, especially when it comes to filming, but do you have the right to film people in public with, or without, their consent?
Is consent REALLY necessary if youâre filming in public? Thatâs the real question here. The answer isnât quite as clear. Thatâs because while you technically do have the right to film people without their consent in public, the legal line is drawn in regards to how you use that footage.
Donât Mistake Private for Public!
If youâre wondering, do you have the right to film people in public, the answer is technically â yes! However, there are situations in which technically you shouldnât be filming without someoneâs permission. Confusing, right?
Although you donât technically need permission to film someone in public, itâs easy to mistake a public location for one that is actually, technically, private. For example, you might think that a public supermarket is âpublic.â It seems logical enough, right? But itâs not!
That supermarket is actually private property despite being open to the general public. Likewise, you might think that filming inside a public restaurant, such as a fast food location is okay, but again, that restaurant is privately owned and is NOT public.
Consent
So, Rule #1 when it comes to consent to film in public is to make sure that you know the difference between a public location and a private location.
Because if youâre filming in any of the private locations, such as the supermarket or a restaurant. Not only will you need consent from those youâre filming. But youâre also need consent from the location owner to film inside their location!
You Canât Profit from Public Footage
Another example of how you could land yourself in some hot water when it comes to filming in public is in the event that youâre filming someone in public and youâre going to profit from or otherwise exploit the footage.
If youâre filming in public, and you capture someoneâs face or their voice, or both and you intend to use that footage for the purpose of producing a commercial film that will be distributed publicly you need permission.Â
This is because people have a right to publicity. This right means that they have the right to decide how their name, character, or likeness is used for the purpose of publicity.
In a case like this, if youâre going to film someone in public you must get their consent because they have the right to decide whether they want to allow you to film them, and to use the footage for a commercially profitable project.
When is Filming in Public without Consent Okay?
So, do you have the right to film people in public without their consent, ever? Technically yes you do! You can film people without their consent in a variety of circumstances and for a variety of purposes. Individual state laws vary on this.
But many allow for public filming without consent as long as:
- The footage does not fully capture the individualâs face or image. In a way that it could be deciphered who the individual is.
- Footage does not capture a private, two way, conversation, that the people believe would be between themselves only.
- The people that you are filming do not have a reasonable expectation of privacy.
Consider This
Where the line is drawn, essentially, is that it becomes unacceptable to film someone in public if you intend to use the footage for your own commercial gain. You have captured the private conversations taking place between the people you are filming.
Or you have captured footage that could be used to identify the individual then you really need to have their permission to use that footage.
What is a Reasonable Expectation of Privacy?
As was stated, if someone has a reasonable expectation of privacy, whether they are in public or in a private setting. A filmmaker does not have the right to film them without their consent.
So what exactly does âreasonable expectation of privacyâ mean? When there is a reasonable expectation of privacy for a person, it means that the individual could reasonably, without much consideration, expect that what they are doing, or saying, is private.
Generally speaking, when people are in public, they are not afforded a reasonable expectation of privacy. However, the law grays a little bit in regard to the conversations that people have together.
For Example
For instance if they were a couple walking quietly in a park and chatting. In this situation, although it might be acceptable to film the couple. It would likely not be acceptable to film them and record their conversation. At least not without their consent.Â
Likewise, if someone is in a restaurant, they technically have a reasonable expectation of privacy within the restaurant. Therefore, you may not film them inside the restaurant. Unless you have consent from both the individual and the restaurant owner, to do so.
In Summation
So, do you have the right to film people in public without their consent? Technically, you do have the right to film people. But you cannot necessarily film people and use the footage commercially without their consent.
Therefore, if you intend to use the footage for commercial purposes, on a YouTube video or on a television commercial, or in a movie or film.
You must have their consent to do so because people have a right of publicity. Which allows them the right to choose how their image, name, and likeness are portrayed. And thatâs why itâs best to always seek consent before filming, in public, or in private.
