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.
What is a release waiver?
When do I need to obtain a release waiver?
Does the release have to be in writing?
What should be in the release forms?
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 and defenses to right of publicity claims?
Do I need a waiver to use the recording as news?
What are the limitations to using the news exception?
How does the First Amendment defend against right of publicity violations when creative works use someone’s name, image, or likeness?
What is incidental advertising use?
What is the punishment for not having a release?
When to contact an Attorney
A release waiver is an agreement between the person/entity filming or recording and the person being filmed/recorded. Generally, these agreements include a “release of liability” for certain claims that the person being recorded might bring against you for recording them. In other words, the person signing the release waiver gives up their right to sue for certain claims and promises not to sue the person obtaining consent (for example, a filmmaker) for claims like violations of privacy or the right of publicity.
The general goal of a release waiver is to obtain consent to record an individual. -top-
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. (California Civil Code § 3344(a); Restatement (Third) of Unfair Competition § 46-49). -top-
For example: In Keller v. Electronic Arts Inc., a former college football player, Sam Keller, sued Electronic Arts (EA) for using his likeness in their NCAA Football video games without his consent (Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013)). The Ninth Circuit Court ruled in favor of Keller, finding that EA's use of his likeness without written consent violated his right of publicity.
Does the release have to be in writing?
Although oral releases can be valid, you should always try to get a release in writing. You want to have the release in writing and signed by the person being 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. However, it might often be difficult to get that person to agree the more time that passes between the point of recording and signing the release, so getting the release up front at the time of recording is often ideal.
What Should be in the Release Forms?
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 use each time. Every type of use needs its own consent or must fall under an exception.
There are several key elements that should be included in a release agreement to ensure clarity and legal enforceability. The case involving the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan provides a practical example of how a comprehensive release agreement can significantly reduce risk for filmmakers and even defend against certain claims, like violations of the right of publicity. A group of college students sued Sacha Baron Cohen after appearing in the film, alleging they were tricked into making racist and sexist remarks. They claimed they were deceived by the filmmakers because they were told the film was a documentary about American culture that would be shown in Kazakhstan (not a mockumentary to be distributed widely in the United States). In short, they claimed they did not consent to their appearance in the mockumentary. However, the lawsuit was dismissed because the students had signed a clear and unambiguous release agreement.
Based on this example, here are the crucial components of a comprehensive and effective release agreement from the standpoint of the producer or creator of a production:
- Comprehensive and Clear Language:
- Each participant should sign a release agreement that is clear and unambiguous. The agreement can be concise, but there are basic elements that should always be addressed.
- Acknowledgement of Participation and Compensation:
- A valid contract must have each party agree to do (or not do) something they otherwise don’t have to agree to. Include a clause where participants acknowledge that, in exchange for money or the opportunity to participate in the project, they agree to the provisions in the agreement. Sometimes all that is promised is the opportunity to be considered for inclusion in the project.
- Clearly state that their participation will be part of a larger work, which could be edited to achieve the overall objectives, and may ultimately not include their participation.
- Rights and Profits:
- Be explicit that the participants are not receiving any of the profits (but if they are to receive profits, then clearly identify what percentage they receive, when and how they will receive that payment). Typically, participants do not receive any profits.
- Rights ownership can get confusing if left unclear. An effective release agreement has participants agree to assign any rights they might have in the project and allow the producer to use, assign, or license the final work, including the participant’s contributions, for advertising, marketing, or publicity related to the project. That rights grant usually also covers derivative rights, allowing the producer to make adaptations that include the participant’s contributions. The producer wants to be able to use their work in the way they see fit and avoid confusion around rights ownership and profits.
- Liability Limitation:
- Include a specific waiver where participants agree to waive (i.e. give up their right) and never bring any claims against the producers (this is called a “release of liability”). If there are specific claims that you want to make sure are waived, then you should draw attention to those claims.
- Add a general waiver covering any claims not previously mentioned in the agreement.
- Irrevocability and Entire Agreement Clause:
- Ensure the agreement includes an irrevocability clause stating that it cannot be terminated. In other words, they can’t take back their grant of rights or their consent to you.
- Incorporate a "four-corners" provision, confirming that only the content within the four corners of the agreement reflects the entire understanding between the parties.
- Participant Identification:
- Include a brief section at the end of the agreement listing the participant’s physical characteristics and identification information.
- Minors and Release Agreements:
- Avoid obtaining releases from minors, as many courts will refuse to enforce such agreements. If you do use footage that contains the image or likeness of a minor, you must obtain consent from their parent or legal guardian.
These elements help protect against potential lawsuits and ensure participants clearly understand their rights and obligations.
If Borat's legal victories haven't yet convinced you of the power of the Borat release agreements, here’s another case against Cohen that supports their effectiveness: Roy Moore, a former judge, sued Cohen for defamation after being portrayed in a compromising manner in Cohen's TV show "Who Is America?" (Moore v. Baron Cohen, No. 21-1702-cv (2d Cir. Jul. 7, 2022)). Moore argued that Cohen falsely accused him of being a pedophile during an interview segment. Cohen won the appeal, with the court affirming that Moore had signed a release agreement, which included a waiver against claims of defamation, thus protecting Cohen from liability. -top-
Can I acquire a person's consent within the audio or video recording?
To save yourself any trouble, get the release in writing.
For an example of the importance of obtaining unambiguous consent, Vanna White sued Samsung for using a robot resembling her in a commercial without obtaining her consent or compensating her (White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992). The Ninth Circuit found in favor of White, stating that even a robotic likeness could infringe upon the right of publiwcity. This case also further highlights the importance of clear, explicit consent for the use of likeness. Although it does not specifically address recorded consent, it underscores the necessity for unambiguous authorization. -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. Videos are considered moving photographs.
A landmark case about video uses of a person’s image and likeness involved a human cannonball performer, Hugo Zacchini, who sued a television station for broadcasting his entire act without permission (Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)). The U.S. Supreme Court ruled in favor of Zacchini, holding that the broadcast violated his right of publicity. The court emphasized that broadcasting the video recording of the performance without consent was an unauthorized use of his likeness. -top-
What is readily identifiable?
Readily identifiable is when you can clearly identify the person. According to the statute, a person is "readily identifiable" if one who views the photograph can reasonably determine that the person depicted is the same person who is complaining of its unauthorized use. (Cal. Civ. Code § 3344(b)(1)). This can include a person’s name, image/likeness, voice, or distinctive gestures or mannerisms.
For example, if the person’s back is turned and you can't recognize them from their visible features, you can use the video. But, if you can recognize the person because of their unique hairstyle or something about them that is special/unique to them (like Anna Wintour’s famous blunt bob hairstyle, or Adam Levine’s back tattoo), then you shouldn’t use the video without consent from the person. 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.
Another famous example where someone was readily identifiable involved Paris Hilton, who sued Hallmark Cards for using her likeness on a greeting card without her permission (Hilton v. Hallmark Cards, 580 F.3d 874 (9th Cir. 2009)). The Ninth Circuit Court found that Hilton was "readily identifiable" on the card because her likeness was clear and recognizable to the general public.
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What are exploitative purposes?
Exploitative purposes are commercial or for your own personal benefit without the person’s consent (Cal. Civ. Code § 3344). For example, as mentioned above, Paris Hilton sued Hallmark Cards for using her image and catchphrase on a greeting card without her consent. The Court found this use to be exploitative because it aimed to commercially benefit from Hilton's persona without her authorization. -top-
What are commercial purposes?
Commercial purposes refer to using recordings 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 the 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.
For example: Johnny Carson sued “Here's Johnny Portable Toilets” for using the well-known catchphrase, "Here's Johnny" (which was used to introduce him every night) in their company name without his permission (Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)). Because the catchphrase was so closely associated with Carson, it was clear that the company was trying to capitalize on Carsons name to sell more products. Ultimately, the use of the catchphrase could be mistaken as an endorsement by Carson and contribute to the company’s commercial gain. The court found that his right of publicity extended to the catchphrase, even though the company didn’t use his image or likeness. The court ruled in favor of Carson, finding that the company had used his identity for commercial gain.
Bette Midler sued the Ford Motor Company for using a sound-alike in a commercial after she declined to participate (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)). The Court held that Ford's use of a voice that closely resembled Midler's to sell cars constituted a commercial misappropriation of her identity. -top-
What are non-commercial exploitative purposes?
Non-commercial exploitative purposes are when 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.
California common law and statutory right of publicity claims often focus on commercial uses of identity, but privacy rights and emotional distress can factor into the analysis to determine whether noncommercial misappropriation of image/likeness has occurred. -top-
What are the exceptions and defenses to right of publicity claims?
Non-exploitative purposes include news and commentary, creative works, and incidental advertising use. Under the statutory right of publicity in California, use of a name, voice, signature, photograph, or likeness without consent in connection with any news, public affairs, sports broadcast or account, or any political campaign does not violate the statutory right of publicity (California Civil Code § 3344(d)). In addition, creative uses of a person’s image/likeness can fall under the purview of the First Amendment and freedom of speech such that the use might not be considered a violation of the statute.
In cases involving the right of publicity, courts have recognized noncommercial purposes, often protected under the First Amendment, when the use of a person's likeness contributes to public discourse, artistic expression, or social commentary. For instance, in Time, Inc. v. Hill (1967), the portrayal of real-life events in the media was considered newsworthy. Parody, as highlighted in Cardtoons, L.C. v. Major League Baseball Players Ass’n (1996), is a form of entertainment and social commentary that transcends mere commercial exploitation. Similarly, Winter v. DC Comics (2003) emphasized that fictionalized portrayals in creative works are transformative, and the artist’s free right of free expression is outweighed by the right of publicity. -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.
For example, the California Supreme Court ruled that a news program’s use of video and audio recordings of a rescue scene without the consent of the involved individuals was protected under the First Amendment because it was a matter of public interest (Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)). However, they also held that there could be claims for invasion of privacy based on the method of recording. -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. In other words, the portrayal must not be misleading or irrelevant to the news report.
For instance, you cannot portray someone in a false light in a news report. Imagine using a photo of an innocent person in an article about convicted sexual predators. If that person has no such convictions, this would likely be seen as placing them in a false light.
You also cannot use a celebrity's entire performance without compensation, even if it’s part of a newsworthy story. Only portions of performances can be used without infringing on rights, provided the use is relevant to the news content.
For example, if you were reporting on a concert, you can only use snippets of the performance 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. This was shown in the case of Zacchini v. Scripps-Howard Broadcasting Co., where Hugo Zacchini performed his "human cannonball" act at a county fair, which was him being shot out of a cannon into a net approximately 200 feet away. A reporter from Scripps-Howard Broadcasting Co. attended the performance and, despite Zacchini’s objections, filmed and broadcasted the entire 15-second act on the evening news. The U.S. Supreme Court ruled that broadcasting a performer’s entire act without permission is a violation of the right of publicity, even if it’s part of a news report. Although news broadcasters typically enjoy the protection of the First and Fourteenth Amendment for reporting on matters in the public interest (and entertainment can be considered in the public interest and important news), the First and Fourteenth Amendments did not protect the broadcaster from liability for broadcasting Zacchini’s entire act without his consent and without paying him. Had the reporter simply reported on the act, rather than broadcasting the entire thing, then a right of publicity claim likely would have failed.
In essence, always ensure that the use of someone’s likeness is relevant to your story and not misleading. And if you plan to use more than just a snippet of a performance or switch from news to commercial use, get the proper permissions. -top-
Creative works are fictional novels, films or other works mentioning or portraying real people. The creator, publisher or broadcaster must make it clear to the public that the work and portrayal of any persons are fictional and not factual. In addition, certain uses of people’s name, image, or likeness can be protected under the First Amendment, but it depends on the circumstances and whether the use is transformative.
For example, in Comedy III Productions, Inc. v. Gary Saderup, Inc. (25 Cal. 4th 387 (2001)), artist Gary Saderup created and sold charcoal drawings of the Three Stooges, which he also reproduced on T-shirts and other merchandise without obtaining permission from Comedy III Productions (the owners of the right of publicity for The Three Stooges). Comedy III sued Saderup for violating the right of publicity of the Three Stooges. The California Supreme Court ruled in favor of Comedy III because Saderup’s depictions were more literal copies of their likenesses than creative expression of their likenesses. Importantly, the court introduced the “transformative use test” to decide the case, examining whether the work adds significant creative elements to transform the celebrity likeness into something more than just a use for commercial purposes. The court found that the Saderup images were not transformative, but rather simple reproductions made for commercial purposes.
Referring to or portraying real people in creative works can lead to legal challenges if the individuals believe they are being portrayed inaccurately or in a misleading way. To avoid such issues, clear disclaimers should be included, stating that the work is fictional. This helps protect the creator from legal claims such as defamation or invasion of privacy.
The case De Havilland v. FX Networks (21 Cal. App. 5th 845 (2018)) illustrates the application of the right of publicity, particularly when it intersects with First Amendment protections for expressive works. In this case, actress Olivia de Havilland sued FX Networks over her portrayal in the television miniseries Feud: Bette and Joan, claiming that the show used her name and likeness without her permission, portraying her inaccurately and casting her in a false light. The California Court of Appeal ruled in favor of FX Networks, finding that the portrayal of de Havilland was a transformative use, protected by the First Amendment. The court emphasized that expressive works, like docudramas, enjoy broad First Amendment protections even if they depict real people and events, if not explicitly misleading or solely for commercial exploitation. In addition, Catherine Zeta Jones’ portrayal of her only appears in a few scenes and is not the main focus of the series, which was all about the feud between Bette Davis and Joan Crawford.
What is incidental advertising use?
When using the recordings for news or commentary purposes, you can generally also use those recordings to advertise your work. Essentially, it means you can repurpose segments of your news or commentary recordings to promote your content. This practice is common in the media industry, such as when news programs use short clips in their "Tonight at 11:00" commercials to attract viewers to their upcoming broadcasts.
Understanding incidental advertising use is crucial because it allows creators and broadcasters to effectively promote their content without infringing on legal rights or facing potential lawsuits. It balances the need for media outlets to advertise their work while respecting the rights of individuals featured in the recordings.
A case that illustrates the boundaries of incidental advertising use is Cher v. Forum International, Ltd., which involved the unauthorized use of singer and actress Cher’s image and statements in advertisements for Forum magazine, which implied she endorsed the publication (Cher v. Forum International, Ltd., 692 F.2d 634 (9th Cir. 1982)). Here, Cher sued several tabloid publishers over the unauthorized publication of an interview she gave to Fred Robbins. Cher had expected the interview to appear in “Us Magazine” but later paid a "kill fee" to prevent its publication. Robbins then sold the interview to Star and Forum, which used it in ways that falsely implied Cher had given them exclusive interviews and endorsed their magazines. Star published the interview with headlines like “Exclusive Series,” while Forum not only ran the interview but also used Cher’s name and image in promotional ads, falsely suggesting she endorsed their magazine.
The court found that Robbins was not liable since he had no control over how the interview was used after its sale. However, it ruled against Forum, finding their use of Cher’s likeness and the false claims in their advertising constituted misappropriation and false endorsement. For Star, the court determined that its use of the interview did not constitute a false endorsement. Although Star used the headline “Exclusive Series” and implied the interview was exclusive, it was stipulated that previous exclusive interviews with Cher had appeared in Star, and there was no evidence that Star knowingly published false statements or acted with reckless disregard for the truth. The court found that Star's actions were protected under the First Amendment, as they were considered part of informing the public about Cher without making false claims of her endorsement.
The judgment awarded Cher damages for the unauthorized commercial use of her persona and misleading the public about her involvement. This case highlights the importance of not misleading the public into thinking a celebrity endorses a product or service when they do not. For incidental advertising use to be lawful, it must be clear that the promotion is for the same work the recording was initially intended.
Practical Tips for Creators
Stay Within Context: Ensure that any use of recordings in advertisements is directly related to promoting the same work. For example, clips from a news broadcast can be used in commercials for that specific broadcast but should not suggest endorsement of unrelated products or services.
Use Clear Disclaimers: If there is any chance the public might be misled, include disclaimers to clarify the nature of the promotion. For instance, if a segment from a news report is used in an advertisement, make it clear that it is promoting the news report itself.
Avoid Misleading Implications: Be careful not to imply that individuals featured in the recordings endorse the advertisement unless you have explicit consent from them. This is particularly important when using the likenesses of well-known figures.
Obtain Necessary Permissions: If your promotional use extends beyond what can be considered incidental, seek permission from the individuals involved. This step is essential to avoid legal disputes and respect the rights of the people featured in your recordings. -top-
What is the punishment for not having a release?
Under California law if you use a recording without a person'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 this guide was created by attorneys, it is a guide, intended to be a starting point for research and not a substitute for specific legal advice. We recommend talking to a qualified attorney when you have questions about recording others and the risks involved, and when you need an agreement to obtain consent from your subject.
If you have questions about video releases and the use and publication of audio and video recordings, contact New Media Rights using our contact form. -top-
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