This guide deals with the use and publication of recordings. Once you have lawfully obtained a video or audio recording, how you intend to use and publish the recording can effect your legal liability.
This guide addresses the question of whether or not a release wavier may be needed for certain uses of a recording you have made.
- Consent from an individual to use a recording is often given through a signed release waiver.
- Generally, you do not need a release when using the recordings for news purposes.
- You cannot publish unlawfully obtained recordings. Please check out our “Field Guide to Secret Recordings” dating a country boy if you are unsure whether your recording was lawfully obtained.
When do I need to obtain a release waiver?You need a release waiver when you are using another person’s name, voice, signature, photograph (if readily identifiable), or likeness for exploitative purposes. Even if you have consent to initially record the person, you still need further consent to use or publish those recordings for exploitative purposes. A release waiver provides consent for how you intend to use the recordings. -top-
Does the release have to be in writing?You want to have the release in writing and signed by the person recorded. A mere oral agreement is hard to prove if problems later arise. A release is not always needed at the time you record someone. Therefore, you can always go back later and have the person sign the release. The terms of the release should specify and give the person clear notice of how you will use the recordings. If your use changes, you will need to obtain separate consent for that particular use each time. Every type of use needs its own consent or must fall under an exception. -top-
This method of getting consent is not recommmended. However, if you do not have a release form on hand, or in the interest of time you do not want to later track this person down, you may want to have the person give their consent for use while you are recording them.
This is a way of making their oral agreement concrete and able to be used as evidence of their consent if problems later arise. Again, this method of acquiring consent is not recommended. Remember, there are two instances when consent is required: (1) when you record, and (2) when you later use the recording. Even if you have a person’s consent to be recorded, you will also need consent when you determine how you will use the recording.
This is also common when there are large crowds in the background, and the magnitude of the crowds makes it difficult to distinguish and identify individuals
You need to be cautious when having a person agree to a release on audio or video. There are circumstances, such as how much you pay them for their recordings or how long the recording is displayed, in which writing is legally required. It is also harder from them to understand all of the terms and specifications when they are simply read the agreement.
What are commercial purposes?
What about videos?You need a release for photographs, still or moving, in which the person is readily identifiable. Videos are considered moving photographs. -top-
What is readily identifiable?Readily identifiable is when you can clearly identify the person. For example if the person’s back is turned and you can’t recognize them, you can use the video. -top-
Commercial purposes are attempts to use recordings in order to sell products or make money. This includes advertising or promoting goods and services, as well as placing names on or in products and services sold to public. The use of the person in connection with goods and services is their right of publicity. Under California law, anyone can sue for violations of their rights of publicity. In some states, you must be a celebrity to bring a claim. -top- What are non-commercial exploitative purposes?Non-commercial exploitative purposes are those in which a person’s identity is used for someone else’s benefit. This is known as misappropriation. For example, you cannot use a video recording of someone to promote a political issue without their consent. -top-