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.
A few points upfront
- 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" if you are unsure whether your recording was lawfully obtained.
When do I need to obtain a release waiver?
Does the release have to be in writing?
Can I acquire a persons consent within the audio or video recording?
What about videos?
What is readily identifiable?
What are exploitative purposes?
What are commercial purposes?
What are non-commercial exploitative purposes?
What are the exceptions of exploitive purposes?
Do I need a waiver to use the recording as news?
What are the limitations to using the news exception?
What are creative works?
What is incidental advertising use?
What is the punishment for not having a release?
Where can I find a sample release form?
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-
Can I acquire a persons consent within the audio or video recording?
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.
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.
To save yourself any trouble, get the release in writing. -top-
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. 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. -top-
What are exploitative purposes?
Exploitative purposes are commercial or for your own personal benefit. -top-
What are commercial purposes?
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-
What are the exceptions of exploitive purposes?
Non-exploitative purposes include news and commentary, creative works, and incidental advertising use. -top-
Do I need a waiver to use the recording as news?
With some limitations, you do not need consent when using a person's name, voice, signature, photograph, or likeness for news, public affairs, or sports broadcast. You cannot be held liable for using recordings in connection with reporting or commenting on matters of public interest. Courts see this as a constitutional protection based on the 1st Amendment freedom of speech. There are limitations when using recordings for news matters. -top-
What are the limitations to using the news exception?
The limitations to the news purposes exceptions are when a person's likeness bears no reasonable relationship to the content.
So, the person being recorded cannot be portrayed in a false light. As an example, if you use a photo of someone in a short piece on convicted sexual predators, and the person is not a convicted sexual predator, this would likely be seen as placing them in a false light.
You also cannot use a celebrity's entire performance without compensation, even in connection with a newsworthy story or program. For example, if you were reporting in a concert, only portions of the performance can be used without paying the artist. If your original use is for news, you need to obtain consent if you later attempt to use it for commercial purposes. -top-
What are creative works?
Creative works are fictional novels or films mentioning real people. The publisher must make it clear to the public that the work and portrayal of any persons are fictional and not factual. -top-
What is incidental advertising use?
When using the recordings for news or commentary purposes, you can also use those recordings to advertise your work. For example, you can use segments of your recordings as commercials or advertisements. This is frequently seen when news programs use a short clips in their "Tonight at 11:00" commercials. -top-
What is the punishment for not having a release?
Under California law if you use a recording without a persons's consent when required, the punishment is $750, the actual amount of damages, or whichever is higher. Most states allow the person recorded to recover any amount or profits loss in connection caused by the recordings. -top-
While we recommend getting an attorney to specifically tailor your release form, you can find several sample release forms online. Make sure your release has at least the following: (1) what is released (what rights are released and in what medium, audio, video, etc), (2) how it will be used (not too broad of a description), and (3) it is signed and dated by both parties (minors under 18 will need a parent or guardian signature). Sample release forms can be found at DanHeller.
That said, you should avoid simply using sample, "boilerplate," forms, and use a release specifically tailored to your situation. -top-
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