Last week, KROQ’s Kevin & Bean interviewed Castle actress Stana Katic, who is starring in a new movie called For Lovers Only. The film is a “sexy love story set in Paris” and was “shot in the spirit of the French New Wave” (which sounds to me like a blend of smooth jazz, a Monet painting, and a nude beach).
The fascinating thing about the film is that it was produced by just five people. The small crew drove around France in one car using a handheld camera, and would haphazardly discover new filming locations (ironically, quite similar to the formula for a Jackass movie, though those are more “shot in the spirit of the American love of men being struck in the groin”). So although the script may have been rehearsed the night before, the location was often “TBD.”

Evidently unaware of the contingent of fascinated entertainment lawyers in the audience, Katic never discussed whether the film’s five-person crew obtained clearances or releases for anything or anyone they may have incidentally filmed. But from her description of the production, it seems possible — maybe even likely — that they didn’t. The film is currently available only through iTunes or at European film festival screenings. But although that whimsical approach to filmmaking may make for great promotional interviews on the radio, it could present a problem when filmmakers start looking for major worldwide distribution.

 

 

But before we get into the law, let’s consider a completely different scenario. Last night, a friend of mine claimed that a computer game he had played earlier that evening had been broadcast live on the Internet by his opponent (who happened to be a professional gamer/Anton Chigurh lookalike named “Liquid’Huk”). Amazingly, the game may have been watched by thousands of troglodytic teenagers who fear women, socializing and sunlight this pro-

gamer’s fans. In other words, the game — including the written communications between my friend and his opponent — was broadcast without my friend’s knowledge or consent, and thousands of people observed the “performance” (i.e., cyber trash-talk, my friend getting pounded into oblivion, and more cyber trash-talk). Very humiliating for him.

Sure, one of these stories is set in the City of Lights, while the other probably took place in a series of darkened basements around the world, but these scenarios share a common thread: they both involve people being filmed or recorded without their knowledge or consent.

Filming Without Permission

So have these producers, or this gamer, exposed themselves to potential liability?

It is theoretically possible for someone who is filmed without permission, and whose image is exploited commercially, to sue for a variety of claims such as violation of the right of publicity, invasion of privacy, or infliction of emotional distress. For this reason — as recently discussed here, movies that shoot on location typically use posted notices to warn passers-by of a movie shooting in the area, and distributors often require evidence of such notices as part of the clearance process for a potential acquisition (according to Katic, many people watching the For Lovers Only shoot seemed to think they were watching a wedding video rather than a feature film in action, so again, it’s somewhat doubtful whether they kept a stack of proper notices in their production van). This is also why all those memorable Jersey Shore fight scenes in public places often feature dozens of blurred-out faces and cut-off heads, for individuals who were never approached by MTV for their consent to appear on film (or who simply refused to grant it).

The potential claims don’t stop there. Depending on a variety of factors — such as what the individuals are wearing, doing, and perhaps performing on film — third parties may have potential claims for copyright and/or trademark infringement depending. And of course, in California (and in many other states), the unauthorized audio recording of a private conversation is a criminal offense.

Of course, that’s not to say that any of these claims would necessarily be easy to prevail on, or that the precise legal issues involved are particularly obvious. On the one hand, public “bystanders” arguably don’t have an expectation of privacy when they are walking in public places. On the other hand, including someone in a film, even incidentally, has the potential for harming someone’s reputation or their ability to do business. Is that likely? No. But as a practical matter, if the incidentally included “bystander” says or does anything substantive in the film, a distributor would demand a release from that person to avoid even the threat of liability. So if For Lovers Only has bystanders that talk or are included for any significant duration, and if producers really did fail to obtain releases, they could find themselves in trouble when seeking mass distribution for the film. (Of course, having not shelled out the five bucks to watch it on iTunes yet, I can’t say one way or the other.)

In the video gaming world, the issues are related, but there are obviously nuances. For one thing, while courts often entertain right of publicity claims involving lookalikessoundalikes, and indicia of identity, it’s not clear to what extent a semi-anonymous, non-celebrity gamer’s rights have been violated if his avatar and gamertag (i.e., screen-name or “handle”) are broadcast, but his name and voice are not. (For many gamers, this is probably for the best anyhow.) And while gamers who communicate in text form are fixing their words into a tangible media of expression, and could therefore try to make a copyright claim for the unauthorized reproduction and publication of their words, copyright law disfavors protection for short phrases, so we’d need to be dealing with one seriously eloquent trash-talker.

Moreover, even without posted signage on the Internet’s digital walls, humiliated gamers who have been broadcast against their will also have to contend with the prospect of implicit consent. Automatic recording is becoming an increasingly common (and well-publicized) feature of computer strategy games. If a gamer knowingly plays a game which enables any player to record the game and send it to whomever he or she likes, that gamer is arguably impliedly consenting to such distribution, or at the very least, has a diminished expectation of privacy.

It’s easy to make light of the plight of the “poor humiliated gamer,” but it’s also easy to imagine very real consequences arising out of this type of situation. Imagine an “Employee” who makes offensive comments in a game with “Player,” who broadcasts the game on the Internet. “Boss” — who just happens to be an even bigger video game dork than Employee, insomuch as he doesn’t just play video games, he spends his off-hours watching other people play them on the Internet — watches the game, observes the offensive comments, and fires Employee the next day. If the stakes get big enough, all of these legal hurdles may not be enough to keep the spurned Employee out of court.

Of course, this kind of discussion is more academic than practical, because the chances of a Parisian bystander or a vanquished gamer taking the matter to court are exceedingly slim. And as always, these legal issues are intensely driven by the unique facts of any situation. The most prudent person will never film without permission, instead always seeking a release. But whether you’re an independent film producer or a self-promoting/Internet-broadcasting pro-gamer, you’d probably be wise to at least put word out there about what you’re doing. (Don’t worry, no one will probably read it anyhow.)