Incidental use of people in videos is an important legal issue to remember when producing video for commercial and non-commercial projects. The following article defines the legal doctrine of “incidental use” and how it relates to commercial video production.

 

Digital Rights Management by Nimia

Background

To protect commercial buyers, Nimia requires signed model releases for all video clips containing recognizable people that are uploaded and licensed via the RF-Premium and RF-Multi-Agency categories.  Video clips that do not have model releases are placed in the Editorial, By-Request, or Showpiece category.  So what happens if you find the perfect video clip for your commercial but notice its an Editorial, By-Request, or Showpiece category?  You may still be able to use the video clip but you need to go through the following two questions first: (i) are the people in the video deemed “incidental”? and (ii) what is the comfort level of your client?

1.  Are the people in the video deemed “incidental”?

Obtaining consent or a release for a commercial production may not be needed if the use of the person is deemed to be incidental. The rationale behind the doctrine is that an incidental use has no commercial value and allowing recovery to anyone briefly depicted or referred to would unduly burden expressive activity. See Pooley v. National Hole-In-One Ass’n, 89 F. Supp. 2d 1108 – Dist. Court, D. Arizona 2000).

The general rule under the incidental use doctrine is that an incidental use of name or likeness does not give rise to liability under misappropriation or right of publicity. To determine whether a use is incidental, courts look at the role that the use plays in the main purpose and subject of the work at issue, taking into consideration that, generally, a name is not appropriated by the mere mention of it.

In deciding whether a case falls within the incidental use exception courts look at the following four factors:

1) whether the use has a unique quality or value that would result in commercial profit to the defendant;
2) whether the use contributes something of significance;
3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and
4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.

Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089 – Dist. Court, ED California 2009.

If you’ve determined that the people depicted in the video clip are deemed “incidental”, the next question to ask is what the comfort level of your client is.

2.  What is the comfort level of your client?

Legally you’ve determined that you could use the video clip for a commercial purpose.  That being said, your client may not want the risk of dealing with a frivolous lawsuit from a person captured in the video clip.  Every company is different and I’ve seen it go both ways.  I’ve seen companies use video clips with people depicted even though they don’t have model releases signed for every person, eg. one of GoPro’s latest commercial ad’s is a great example at 3:14-3:28, 

Summary

Incidental use of people is an important legal doctrine for filmmakers to remember. If you’d like to talk to an attorney about incidental use, model releases, or other legal issues surrounding video production, please contact [email protected] and we can set up a short phone call.

By accessing and reading this blog, you acknowledge and understand that no attorney-client relationship has been formed and you further acknowledge and understand that this blog is not intended to constitute legal advice. Legal advice and counsel requires a fact-specific analysis of your particular issues, and you should thus obtain legal advice directly and individually from an attorney licensed to practice in your jurisdiction, if appropriate.