Introduction
This article is a summary of the potential legal claims related to using images of people in an audience – indoors or outdoors, followed by preemptive measures and defenses against such privacy/publicity claims, draft crowd releases, and a related note of caution regarding music.
Releases are not required from individuals in crowds or passersby, even if they’re recognizable or identifiable, provided they are not the focus.
Much of this analysis is based on New York law, but each jurisdiction has its own definition of what constitutes a violation of the right of publicity. That said, this guidance should be relatively easy to implement and avoid liability even in jurisdictions with the most expansive rights of privacy and publicity.
Right of Privacy // Publicity
There are two distinct claims that potentially apply to unauthorized uses of someone’s name, likeness, or other personal attributes without permission:
- invasion of privacy through misappropriation of name or likeness (“misappropriation”); and
- violation of the right of publicity.
Elements of Violations
A plaintiff must establish three elements to show a defendant is liable for unlawful use of name or likeness: (1) use of a protectable attribute (2) for an exploitative purpose (3) without consent.
To sustain a misappropriation or right of publicity claim, a plaintiff must show the defendant used attributes of his or her identity protected by law – usually, this means showing the defendant used the plaintiff’s name or likeness. “Likeness” refers to a visual image of plaintiff, whether a photograph, drawing, caricature, or other visual presentation, including video. The image doesn’t need to precisely reproduce the plaintiff’s appearance or even show his or her face to be violative, so long as the image evokes the plaintiff’s identity in the eyes of the public. “Voice” is considered protectable in some jurisdictions, so it’s worth noting that if the voice is distinctive and identifiable enough, like Morgan Freeman’s, its use can also give rise to a claim for violation of rights of publicity.
Exploitative Purpose // Commercial Use
Commercial use is generally understood as advertising or promotion, i.e. anything other than editorial, education or informational coverage. If someone looking at a photograph or video would think that the person in it is promoting or endorsing a product or service affiliated with the image, then the use is commercial and actionable. Commercial use without compensation is improper in the context of the “right of publicity” being the prerogative of a person to control and make money from the commercial use of his or her identity.
That said, the law does not give individuals the right to stop all mention, discussion, or reporting on their lives or activities. The courts in most states have found many media uses qualified for the news and commentary exception to publicity liability in connection with reporting or commenting on matters of public interest, as discussed below. Hosting advertisements does not deprive one of the news and commentary exception, and courts have long recognized that for-profit organizations that sell advertising space are nonetheless entitled to protection.
Consent // Release
Consent is a complete defense to a legal claim for either misappropriation or violation of the right of publicity. Lack of consent is one of three required elements, and the plaintiff has the burden of proof to show this, so presence of permission by way of a release would defeat any claim made by someone that signed or otherwise agreed to terms granting a license to exploit images.
For this reason, individualized waivers are generally recommended for photographs or interviews featuring a particular person, but, as discussed below, probably not necessary from each congregant in a crowd or people appearing in passing on screen or heard en masse with the rest of the audience.
In New Yoooooork
New York’s “Right of Privacy” statute is codified in Article 5 of the Civil Rights Law, sections 50 and 51. Section 50 makes violating a publicity right a misdemeanor (criminal), while section 51 provides a private right of action (civil). Notably, New York law does not recognize a separate common law right of publicity. Claims under Section 51 are subject to a one-year statute of limitations.
In New York, section 51 provides protection for a person’s (1) name, (2) portrait, (3) picture, and (4) voice. Portraits and pictures are often conflated/confused and courts have construed the portrait/picture provisions somewhat broadly to include “any recognizable likeness, not just an actual photograph.” One example of “likeness” limitations is when an M&M character dressed in Naked Cowboy’s signature costume, it did not amount to use of the entertainer’s “portrait or picture” required to establish violation of New York’s privacy statutes.
Other Jurisdictions
Courts and statutes often use the language “readily identifiable” or “recognizable” to mean “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”10 In an image depicting a group, the individual must be “singled out” in some manner to have standing.
It’s worth noting some states (e.g. California, Florida, Nebraska) prohibit plaintiffs from making claims based on crowd shots, however, if a person recognizes himself, there may still be a viable claim. The California statute covers only “name, voice, signature, photograph, or likeness.” Images of crowds, such as on public streets or at sporting events, do not run afoul of the statute as long as no people are “singled out as individuals” in the image.
Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians. One Arizona court held there is “no reason why a claim for invasion of the right of publicity should not be recognized in Arizona”, protecting at least a “celebrity’s name and likeness.”
In New Jersey, unauthorized publication of an identity, including a distinctive voice, for promotional or commercial purposes constitutes common law appropriation. Connecticut recognizes a common law right of publicity and appropriation. The Massachusetts statute only proscribes use of a person’s “name, portrait, or picture.”
Preemptive Measures // Defenses
Having seen ways to establish violations of the rights of privacy and publicity, here are some steps to take in order to avoid and/or defeat those claims.
Incidental Use
Certain “incidental” uses are exempt from the right of publicity claims, as they fail to convey a commercial advantage to a defendant. In particular, “news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses” are not considered “uses for purposes of trade.” In the context of footage of an audience or crowd, this exemption is fitting. Courts have considered several factors in determining whether a use is incidental, such as (1) whether the use has a unique quality or value that would result in commercial profit to defendant, (2) whether the use contributes something of significance, (2) the relationship between the reference to the plaintiff and the purpose and subject of the work, and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.
An Arizona court applied this four-factor test and found that plaintiff’s identity was crucial to a commercial, disagreeing with the argument that use of plaintiff’s name and likeness was incidental because it only lasted for several seconds of an eight-minute video. This is distinguishable from a crowd shot, though, in that the defendant marketing organization used video footage of plaintiff professional golfer’s million-dollar hole-in-one shot to advertise its own “Million Dollar Hole-in-One” promotional product. In a church crowd shot, no one congregant would be singled out or specifically depicted for any particular reason.
A New York court held that use of plaintiff’s picture in a movie for 4.5 seconds in opening shots of New York City was merely incidental and did not constitute a violation of the plaintiff’s right of publicity. Similarly, an Ohio court recognized the “faces in the crowd” exception in rejecting a challenge by a group of MLB umps who alleged that trading cards and other products featuring photos of ball players violated the rights of privacy, publicity and misappropriation of likeness for commercial benefit of the umpires visible in the background of the photos.
Incidental use of plaintiff musician’s forty-five-second performance in defendants’ motion picture depicting Woodstock Festival was considered de minimis and did not entitle musician to injunctive relief. A New Jersey court held that a parent teacher association’s sale of a video of a large student performance was only an incidental use of an individual student’s identity. Similarly, the same court held that including footage of a group of hospital patients in a television docudrama did not constitute appropriation.
Like in these cases, the use of shots panning an audience would likely be considered incidental use.
First Amendment // Art // Editorial Defenses
The First Amendment can insulate speech that would otherwise infringe on a plaintiff’s right of publicity or privacy, protecting speakers when the chief purpose if to inform and educate. Courts interpreting the New York Civil Rights Law have concluded that “pure First Amendment speech in the form of artistic expression deserves full protection, even against another individual’s statutorily-protected privacy interests.”
An important limitation to the news and commentary exception is that if the plaintiff can show use of his or her name or likeness bears no reasonable relationship to the content presented, then liability may arise from “advertisement in disguise.” In New York, a plaintiff whose image was used during a television program properly stated a claim for unauthorized use pursuant to Civil Rights Law § 51 when the use was accompanied by remarks by the show’s cast in which the subject of plaintiff’s allure was crudely debated. In contrast, a New York woman whose facial response to a display of public nudity by models was included, without her consent, in a cable television program dealing with the subjects of displays and discussions of nudity brought and lost a publicity claim because (1) the program concerned a matter of public interest and came within newsworthiness or public interest exception and (2) the use of the woman’s image was not for purposes of trade.
Religious evangelism is considered a non-commercial and constitutionally protected activity. “Spreading one’s religious beliefs or preaching the Gospel through distribution of religious literature … is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types” and “the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise”. Further, each service is arguably newsworthy matter of public interest, and images of the crowd, including facial reactions, are certainly reasonably related to the subject matter of church service.
A guiding example of the limits of the scope of First Amendment defenses to appropriations claims is a case in which the United States District Court for the District of New Jersey held that while the First Amendment would protect the publication of a soldier’s photo in a book about the Vietnam War, it would not protect the publication of the photo in the marketing materials enclosed within the book. The court explained “the defendant’s right of free expression is abridged only insofar as it is required to share some of its profits with the individual whose likeness is helping to stimulate those profits.”
With this point in mind, one policy of any ministry should be to limit use of audience shots to broadcasts of services themselves, avoiding use of shots where congregants are identifiable/recognizable in commercials, promotions, and advertisements for merchandise including albums, books, and other materials.
Classifying Church as Public Place
Depicting audience members, observers, and bystanders at a public event such as a musical, dramatic performance, sporting event, public lecture, religious gathering, building dedication, fireside, or press conference generally does not require releases. Hammerstein Ballroom, for instance, hosts shows (i.e. ticketed events) and public events. Since it is free to attend most church services, there is a colorable argument that each service is a public event.
Note, though, these images depict an actual real-life event, not a recreation or reenactment – if the event is staged, e.g. a production crew is dealing with a controlled location casting extras to play a crowd, the extras should sign some type of release agreement even in public spaces – this is a common practice in production for many motion pictures to sidestep this legal issue altogether.
There is generally no expectation of privacy in a public place, so claims by people inside or outside the venue would likely fail. For example, the subject of a photo taken in Times Square sued the street photograph for unauthorized use of his likeness under Civil Rights Law, but the artwork was considered a matter of general public interest entitled to First Amendment protection despite the photographer’s economic motivation grossing some $240,000 from the sale of limited edition prints.
Significance of Objections
If anyone asks that their image not be used, it’s best practice to make every reasonable effort to avoid using shots depicting them in an identifiable way. Keep in mind that even people giving consent can revoke (i.e. take back) that consent any time before the use of their image takes place, so you should honor the decisions of persons who express wishes not to be depicted, so long as publication hasn’t already taken place yet.
If anyone says they don’t want to be filmed, service producers should inform the camera crew and make best efforts to avoid using any footage depicting that individual in a recognizable or identifiable manner.
Draft Crowd Releases
Where any production is dealing with a large crowd, as here, a large poster or sign should be placed at or near the entrance. “To the extent the film contains a pan shot of a crowd, it is not likely that the filmmaker will have to establish that each crowd member expressly authorized the depiction of his or her image.” To be sure a pan shot is properly cleared, signs should advise that those who enter the venue will be filmed and that their consent is presumed. Additional protection against claims may be available by notifying the crowd of how to contact the videographer if anyone decides they would like to have their image edited out of the footage.
In addition to posting physical signs at entrances, another effective method of establishing implied consent would be to display the crowd release notice on a large screen immediately before the event starts. The notice should essentially say, by entering here, you consent to being filmed, and to the use of your appearance in any way. There has yet to be a case challenging the validity of such a notice, and usually, people are actually thrilled to be seen on screen.
“This worship service will be videotaped. Some audience members may be recognizable in the footage. Your presence in the audience grants consent to the camera crew to record your likeness and appearance at this service and to use your image in the video and/or marketing materials without compensation to you, and releases the ministry from all liability related to the videotaping of your presence in this venue. If you do not wish to be filmed, please promptly inform a member of the camera crew. Enjoy the service, and welcome!”
OR (shorter)
“This worship service will be filmed. Images of the audience may be used. Your presence grants consent to the camera crew to record your likeness and use your image without compensation, and releases the ministry and affiliates from any liability. Enjoy the service, and welcome!”
OR (even shorter)
“Worship services are filmed and images of attendees may be used in broadcasts.”
While these notices are encouraged as preemptive and protective measures, there is no guarantee that congregants will see the signs. Further, claims may be made anyway if an individual takes issue with his or her recognizable depiction. What this language does do is operate as evidence in the unlikely event that a defense to publicity claims becomes necessary – if signs are posted conspicuously, a member of the audience would probably not be able to establish that the ministry lacked consent to use his or her likeness, which is an element required in any properly-stated privacy or publicity claim. Again, consent is a complete defense.
Conclusion
No official consents or releases are needed for shots in venues where guests’ faces are visible in passing, like crowd shots or panning the audience. Similarly, outdoor shots where people are visible in passing can likewise be used without releases from every individual depicted since, in a public place, there is no reasonable expectation of privacy.
By posting crowd release notices at the entrances and on screens that essentially gives every congregant the opportunity to opt out of being seen on screen, a ministry and its affiliates would be well-protected against claims for violations of publicity and privacy rights from churchgoers or passersby alike.
Consider limiting use of audience shots to broadcasts of services themselves, avoiding use of shots where congregants are identifiable or recognizable in commercials, promotions, and advertisements for merchandise including albums, books, and other commercial materials.
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