Modern day marketers often find themselves capturing content at live events to feed their brand’s public’s insatiable appetite for news. At least if they’re good modern day marketers, they do.
But is it ok to use all this glorious content? iPhone melting in one’s hand from the furious Twitpic and YouTube uploads, one suppresses fleeting concerns about posting images one didn’t exactly ask permission for, steeled by some aphorism about it being better to ask forgiveness, etc.
As this is part of my daily job, I figured I better get to the bottom of this. Surely there are laws, right?
Here’s what a number of Winnipeg video production houses & photographers think. Everyone seems to rely on people’s expectations of privacy (Are you in a public bathroom? You can reasonably expect not to be videotaped) to set the stage for general ok-ness, except for commercial purposes.
Criminal Code of Canada, 162. (1):
Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy.
James Swirsky, Principal
As we understand it, in Canada, you can film anyone in public as long as you are on public property. One document that we found quite useful is the ‘Photographer’s Right‘ doc. It is made with the US in mind, but I assume the same info holds true for Canada.
To be truthful, we’ve never gone too far out of our way to find out the specific laws, as it has never really been an issue.
Most of it is pretty common sense. Public place: fair game. Private property: permission may be needed.
For a small shoot, our strategy is often shoot first, and be polite if anyone protests. Most people are quite reasonable and accommodating. It’s usually when a camera person adopts a ‘it’s my right to film wherever I want’ attitude that things get messy.
Simon Burgess, Partner
Elemental Motion Media Inc. / Skycandy Inc.
It really is hard to find a definitive answer on some of these questions.
In terms of taping/shooting in public, I don’t know of any legal requirements regarding getting people’s permission if it’s in a public place. I think the issue is more about how that video is used, especially if it’s for commercial purposes.
When we’re producing television commercials, we really aim to have as controlled an environment as possible. Anyone that appears in a commercial signs a waiver, and if it the subject is under 18, a parent co-signs the waiver. I avoid shooting video in public places for commercial purposes because, honestly, I don’t know what the full legal implications are if someone’s image is unintentionally captured and they find issue with it. I imagine it’s within their rights to request the removal of their image, but thankfully I’ve never been in the position to find out. So I just avoid those situations altogether, for other reasons too, such as the lack of a controlled and safe environment.
Ian McCausland, Photographer
Ian McCausland Photography
Scott Carnegie, Owner
The first thing to understand is the difference between public and private property and how it applies to permission.
Scenario 1: Public property accessible by anyone – sidewalks, parks, roads, etc.
In scenario 1 you do not need any permission to capture images or audio of any person or anything visible from the public space, including children or police, regardless of what people may have you believe; there is no expectation of privacy (with limits, upskirt photos violates the expectation of privacy) on public property. How you end up using that image may be subject to Intellectual Property laws, such as taking a picture of someone legally on public property and then putting them on your billboard as a spokesperson without their permission.
Basically if you can see it from public space, you can record it.
Of course, it is more polite to get permission from people in public. When I go out as a videographer my rule of thumb is if I am getting general shots of locations and people I will just record it. If I want to get close up to people and talk to them or get footage of their activities I approach them and ask permission first. I have manners
And example: I was hired by the organizers of the Pride Festival this year to capture images at the Legislature grounds (public property), the street Parade (public property) and at the Forks (private property open to the public). Shots of people walking around celebrating I would capture without asking, people giving public speeches I would capture without asking, if I walked up to someone to get comments I would ask first, regardless of their location.
In Canada with regards to audio recording only one party needs to give permission, so if you are on public property and someone tells you that they don’t want to be audio recorded you are still within your rights to audio record them.
Scenario 2: Public property open to the public on a restricted basis – court buildings, crime scenes, etc.
Scenario 3: Private property open to the public – the mall, the Forks, the MTS Centre
In scenario 2 and 3 permission is usually needed. Even though these areas are open to the public they have restrictions. Yes, you can go to the Forks and do a recording, though you may be asked to stop or perhaps leave the area, which is their legal right since they are private property. It is best to get permission—sometimes from the event organizers rather than the property owner if that event has licensed the property for their use.
Permission can be explicit or implicit. Explicit is: you are at a cultural event at Folklorama and you go to every individual person in that pavilion and ask their permission. Yikes. Implicit is: you get permission from the event organizer to put a sign at the front door that states that by entering people give their permission to be recorded.
Scenario 4: Private property not open to the public – my house, a workplace not open to the general public
In scenario 4 you absolutely need permission of the property owner to enter there and record. A few years ago the producers of COPS had to change their methods since every time they entered a home without permission they were violating the law. Even though they were accompanying police who may have had a warrant that does not give a private citizen (which is what you are as a videographer) permission to enter the property.
Doug Little, Owner
Douglas Little Photography
People are fair game, for photography or videography, when they are observable from public property, such as streets, sidewalks, or parks.
If an event or activity is taking place in a private setting where you have to either pay for admission, be invited, or pretty much enter a physical structure that is owned or rented by a individual or organization, either for the long term (eg: rented office space) or short term (eg: The Convention Centre for a trade show) these spaces or considered private, and photography or videography on the premises is not allowed unless given permission by the organizer/lessee.
However, if something is taking place on private property but is visible from a public property—say something happening on a restaurant’s patio is visible from the sidewalk without going to extremes, like bringing a 20 foot ladder to look over the hedges they have grown some to provide privacy—it’s fair game.
It’s all pretty grey though…so malls, restaurants and other so-called public places are really private, and you can’t photograph in them unless you are given permission. Chances are these places own the parking lots too, so you can’t photograph from outside looking in, because they own the property outside as well.
Vergil Kanne, Owner
Vergil Kanne Photography
Depends on use. For anything commercial, you need to have a model release for anyone whose face appears, even if they are in a crowd. For editorial content, the rules are more lax, but it must qualify to be editorial – ie newsworthy. That’s why celebrities get abused so badly by paparazzi—you couldn’t do that to a normal person. That’s also why cigar guy can be published – he is in the crowd at a newsworthy event.
A dinner at the Convention Centre could be newsworthy – ie, a gov minister speaking. Editorial images cannot be used to promote or endorse a product. Artistic usage usually has the least strict rules – you don’t generally need a model release for a photo shown in an art gallery.
The other aspect to this is property releases and/or private property rules. You can’t photograph people in malls or hospitals without the management’s permission. Recognizable private buildings or architectural features cannot be in a commercial photo without a property release. Generally skyline buildings don’t apply.
Usage and shooting are 2 different things – you can photograph anyone you want, whether or not you can use it is in question. You can’t photograph anywhere you want – anytime you’re on private property, public or not, the owners have the right to disallow photography (concerts and hockey games are newsworthy, however most disallow photography).
There are some laws, and where the greyness comes in is that a lot of what is read is US or UK, and to be fair US law is pretty applicable to Canada in a lot of aspects.
The laws on where you can shoot and what you can do on private property are more clear – usage gets more grey because of the litigious side of it. And at the end of the day police can always charge you with public mischief for anything deemed inappropriate, and I have heard anecdotally of people being charged with filming without a permit.
Butt-covering best practices
I also spoke with the Office of the Privacy Commissioner of Canada, and they gave me a great suggestion about posting notices in big spaces where you can’t possibly get everyone’s ok. I hadn’t thought of that. Along with the insights above, here’s “image permissions” in a nutshell:
1. Get waivers/image release forms signed by people you’re going to feature, and those people’s moms if they’re under 18.
2. Post signage in rooms where you’re going to be shooting.
3. Ask people in public, just to be polite (thereby enhancing cooperation).
4. If it’s happening “on the street”, you’re pretty much ok.
5. If someone owns the space, you need to clear it with them.