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 regards 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 you’re filming in public? That’s the real question here. The answer isn’t quite as clear. That’s 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.

Don’t Mistake Private for Public!

If you’re wondering, do you have the right to film people in public, the answer is technically – yes! However, there are situations in which technically you shouldn’t be filming without someone’s permission. Confusing, right?

Although you don’t technically need permission to film someone in public, it’s easy to mistake a public location for one that is actually, technically, private. For example, you might think that a public supermarket is “public.” It seems logical enough, right? But it’s 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 you’re filming in any of the private locations, such as the supermarket or a restaurant. Not only will you need consent from those you’re filming. But you’re also need consent from the location owner to film inside their location!

You Can’t 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 you’re filming someone in public and you’re going to profit from or otherwise exploit the footage.

If you’re filming in public, and you capture someone’s 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. 

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 you’re 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 individual’s face or image. In a way that it could be deciphered who the individual is.
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• Footage does not capture a private, two way, conversation, that the people believe would be between themselves only.
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• 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 “reasonable expectation of privacy” 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 regards 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. 

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 that’s why it’s best to always seek consent before filming, in public, or in private.