Is it Illegal to Film Someone without their Consent?

Filmmakers face various legal challenges when it comes to recording either in public or in private locations, especially when it comes to filming people. Asking permission to film is important, as is securing release agreements, but is it illegal to film someone without their consent? This is a question that frequently comes up and the answer varies by location as well as by circumstance.

The decision to film someone without their consent really shouldn’t be taken lightly, especially if you’re producing a commercial film.

Something as simple as failure to get a signed talent release from anyone that you film could put a halt to the distribution of your production later on and even worse, it could lead to some costly legal troubles.

Public Filming Without Consent

While it’s not always illegal to film someone without their consent, the laws vary by state and even by city. Most lawyers in the U.S. will tell you that whether or not it’s ever okay to film someone in public without their consent really depends on the specific situation.

As a filmmaker, you really should seek permission anytime you’re filming people. Whether they are in a public place or on private property. However, this isn’t always feasible. 

So, is it illegal to film someone without their consent when you’re in public and they’re in public? The answer is, not usually.

Generally speaking, when you’re in public, and the people you’re filming are in public, it is legal to film and whether you record video, audio, or both is acceptable. Usually.

An Expectation of Privacy

The grey area of law comes in when there is a reasonable expectation of privacy. If you film someone who has what is called an expectation of privacy, meaning that they reasonably believe that they are in a private location, things could get a little bit less cut and dry in terms of the law.

In private locations, including those that you may mistakenly believe are public, people with a reasonable expectation of privacy have the right to such privacy and thus, you cannot legally film them without their permission.

So, what is a reasonable expectation of privacy? A reasonable expectation of privacy basically states that the individual has a reasonable right to believe that where they are at is private and that their actions in that location will remain private.

Filming someone without their consent in these situations could potentially lead to legal troubles.

Filming Inside a Public Establishment without Consent

So, is it illegal to film someone without their consent when you’re filming inside a store, restaurant, subway, or some other private property or establishment? Again, rules and laws by state vary. But in these places people generally do not have a reasonable expectation of privacy.

When was the last time you expected your subway ride to work to be a private ordeal? Thus, you can legally film in these locations, generally.

At a Restaurant

However, again there is a grey area. For example, if the restaurant owner were to tell you to stop filming and leave? You would be required to stop filming and leave.

Likewise, if someone in the restaurant were to ask you to stop filming them, the laws vary but generally you would not have to stop filming unless the restaurant or property owner made the request.

But don’t expect a restaurant owner to allow you to film their customers if the customers don’t want you filming.

The restaurant owner has a duty to keep customers happy. They won’t be too happy about you making their customers upset. So the chance of the restaurant owner siding with a disgruntled customer and asking you to stop filming and leave is strong.

On Private Property

If a private property owner requests that you stop filming, and you don’t abide by their rules and request, they’ll likely demand that you leave.

And if you don’t leave, they’ll have the right to request that law enforcement trespass you from their property – which could get you into legal trouble. 

Asking Permission

Your best bet, whether filming in public or in a private location, is to seek permission from anyone that you film.

Asking permission prior to filming, and requesting that those you choose to film sign a release form, can save you a lot of legal hassle in the long run. Especially if you’re using the footage that you capture for commercial purposes.

Although it isn’t always illegal to film someone without their consent. As a commercial filmmaker it’s really best to seek permission from establishment owners. As well as the individuals that you’re filming rather than potentially face a legal burden later on.

Consequences of Failing to Ask Permission

Your failure to take steps to seek permission to film someone could result in your footage being unusable. That’s why most filmmakers will either bring release forms with them wherever they’ll be filming.

Or they’ll plan an extra minute to catch the individual on camera as they grant permission. It’s a lot easier to ask someone for their permission on-location. And to have them immediately sign a release. Or state that they are granting permission on camera.

Versus having to either face the legal hurdles associated with a lawsuit from someone that’s unhappy about their debut in a film you release later on.

Or to risk having to remove your film from distribution because someone that you filmed without consent decides to exercise their right of publicity.

What is the Right of Publicity?

Even when you film in public, where people don’t have a reasonable right to privacy, there is something called a right of publicity that people can later exercise which could cause some legal implications if you were to film someone without their consent.

The right of publicity states basically that people have the right to control who makes money off of their image.

Even in a location where someone has no reasonable right to privacy. If you film them and then make money off of the footage, they could exercise the right of publicity.

And in doing so, they could request that you not distribute footage that includes their image if you’re making money off of the video.

Signed Release Forms

Again, a simple release form can eliminate any potential legal implications that could arise from filming someone without their permission.

Whether it’s asking permission and making sure that you have a signed release. Or that you have filmed them stating their name and that they are granting you permission to film them and to use the footage at your discretion.

It can eliminate a lot of potential legal hassles for filmmakers regardless of whether they film in a public or private location. 

In Summary

So, is it illegal to film someone without their consent? Sometimes, especially if you film in a location that is private. Or where the individual has a reasonable expectation of privacy.

State laws on filming people without consent vary. Which is why it is recommended that filmmakers ask permission from anyone they film, especially when filming for commercial purposes.

Doing so can eliminate or greatly reduce any potential legal implications that may arise from otherwise failing to seek consent before filming.