By Gregory Kanaan
Q: If I am filming a character on the street and real-life people walk in and out of the frame in the background, do I need waivers from each of these people if the finished film is broadcast or entered into a festival?
At one point or another, every filmmaker on location will have to decide just how diligent they need to be when getting release forms from backgrounders and passers-by. After all, unless you have the budget to cordon off the entire area you’re shooting in (and let’s face it, you probably don’t), you’re going to have people walking through your shot. It’s just a headache-inducing fact of life, for documentary and reality producers especially.
In my early days as an associate producer, my instinct was to voraciously track down every person who crossed into frame and get a waiver, no matter how inconsequential they were to the shot. These days, I see how unnecessary my waiver-lust was. As an attorney, I understand that not every backgrounder is depicted equally, so whenever a client confronts me with this issue, I typically ask this question:
“Is the person featured in a meaningful way?”
In other words: Can you clearly see that person’s face? Do they speak on camera? Does the person do anything that would identify him or her to the audience at large? If the answer is “yes,” consider the shot usable only if there is a waiver from that individual. If the answer is “no,” a waiver is often unnecessary. In situations where the answer is “yes” but my client didn’t or couldn’t get a waiver, I tell my clients to either A) blur the person’s face, B) crop the person out, C) use a different shot if they can’t be cropped, or D) track them down after the fact, if possible. Additionally, if a person explicitly tells you not to film them (or show their face if you do), well, you better not.
Some producers are OK with an on-camera waiver, but I advise getting all waivers in writing with the person’s full name and contact information. On-camera waivers aren’t a bad alternative to written release forms, but information is often incomplete and that footage can easily get lost if it’s not logged properly. And if the footage containing the person’s waiver gets damaged, derezzed, or deleted, their footage becomes unusable because you have no proof that the person was OK with being filmed.
A useable waiver, whether it’s on-camera or not, should always have at minimum the person’s name, contact information (phone, email, and address), the date, the name of the production, and a statement permitting the production to use footage of their likeness and voice. Most on-camera waivers neglect some or all of these because of the time it takes to get, or because producers just forget. Having it in writing is typically much faster. Your production company should always have a bevy of blank release forms for exactly this purpose. If your film is distributed or aired, the distributor, studio, or network will usually require written waivers anyway. I don’t usually send people to template waivers because each production’s needs could differ and the last thing you want is boilerplate that would be harmful to your own interests. A serious production company should always have a lawyer draft up release forms.
If you’re feeling cautious about people walking through your frame, you can (and should) put up a large sign in the area, conspicuously informing any passers-by that filming is taking place and that being in the area constitutes a waiver if they are filmed.
And of course, you should always get a written waiver from the owner of any private property, and a permit from any public property on which you decide to film.
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