Wednesday, July 28, 2010

Sidewalk I.D.

Now and then, more often than one might think, when you are walking down the sidewalk in New York City, you find yourself stumbling into a reality-TV shoot.

Usually, being reality TV, it's something stupid and uncomfortably fascinating. Like a woman dressed in a bacon suit and chattering to a hot dog man. Or a woman and man dressed in towels and tin tutus for a show the PA guy tells you is called "Just Ask Mom," or "What Would Mom Think," or something like that.

(After a bit of research, I'm pretty sure that was food TV's celebu-mom Paula Deen taping the pilot for "Mom Logic.")

September 2009

If you're curious and have time to spare, you might lurk around a bit, listening and watching. But be careful. The production people sometimes carry signs like this:

"By entering this area, you consent to being photographed by means of video recording and you grant producer, carrier stations, sponsors, as well as their affiliated and related entities the right to record and use your name, voice, and likeness worldwide in perpetuity for any purpose whatsoever. In addition, you release the above parties from any and all liability in connection with your appearance and/or for loss or damage to person or property."

Let's repeat that: Simply by walking on a public sidewalk, you have somehow given several corporate entities, including advertisers--like the makers of Viagra and Preparation H--the right to use your name, voice, and likeness.

Into eternity.

For whatever purpose they desire.

If they want to put your face on a hemorrhoid and digitally manipulate your mouth to sing "Baby Got Back" while they machine-gun you with bullet-shaped Preparation-H suppositories, they can do that. And even if it causes you to lose your job and spiral into depression, you can't hold them liable. Really?

It's bad enough the streets are full of photo-snapping bloggers (like myself), cam-happy iPhoners, surveillance cameras, and the Google Streetview car. By now, we're all coming to terms with the fact that we are being watched and recorded much of the time. In public, we can have no expectation of privacy.

But the reality shows? They own your identity. And there is no getting it back.


  1. Reality shows: the crapification of television.
    Utter garbage for mindless freaks.

  2. I think I'll start wearing a big


    button everywhere I go.

  3. I think the waiver goes well beyond what the actual law is. I think constitutionally you can film anyone or anything you want to in a public space, and you don't even need a permit in New York anymore if you are a small enough crew and not restricting street access. But commercial speech is more regulated and I would think they would need a signed waiver to actually use someone in any kind of advertisement. I remember this came up when the Borat film was released: the producers had to blur the faces of people Borat was antagonizing on Fifth Avenue for the theatrical trailer that was advertising the film, but did not have to blur their faces in the film itself.

  4. it's the insanely overreaching language that gets me: "we own the right to use your name, face, and voice forever and ever."

  5. Yes, what's surreal is that it is asserting a truly grotesque ownership interest over every aspect of our lives forever just for walking down the street this one time, and all on a neat little cardboard notice and no one seems bothered enough to take issue with them.

    Anyway, here are a few recent court decisions I came across indicating that we still have some rights in the situation...

    A New York appellate court held that a woman who was filmed on a public street and whose image was included in a television reality show had stated a claim for misappropriation. Nieves v. Home Box Office, Inc., 30 A.D.3d 1143, 817 N.Y.S.2d 227 (N.Y. App. 1st Dep=t 2007) (affirming denial of a motion to dismiss a claim under Section 51 of the New York Civil Rights Law). The show profiled a family of bounty hunters. During filming on the streets of New York, two family members noticed plaintiff standing on a public street and crudely remarked: "Holy shit, now this is fuckin crankin.....I think my dick just got hard.” The trial court ruled that it could not determine whether, as a matter of law, the use of plaintiff's likeness bore a "real relationship” to the subject matter of the show. The appellate court affirmed in a one paragraph decision, holding that a jury would have to make a factual determination based on the content of the program whether plaintiff's image had a real relationship to the content of the program. The court emphasized that the Aplaintiff's image was used during the show and that its use was accompanied by remarks by the show's cast in which the subject of plaintiff's sexual allure was crudely debated” and that, as such, it was possible plaintiff had been impermissibly Asingled out and unduly featured merely because she was on the scene.”

    An Illinois federal court denied a motion to dismiss misappropriation and right of publicity claims over the use of plaintiff's photograph on a book cover, holding the use could be commercial and not protected by the First Amendment. Christianson v. Henry Holt LLC, Magnum Photos; Barbara Enrenreich, No. 06-1156 (C.D. Ill. Mar. 20, 2007). At issue is the cover photo on the best selling book Nickel and Dimed: On (Not) Getting By in America written by Barbara Ehrenreich. The book documents and discusses the problems of the working poor in America. The district court found that the Aphoto is both gripping and appears to emit all the ideas of hard work, worry and concern that Ehrenreich sought to capture in her book.” Nevertheless, despite the clear relationship between the photograph and the content of the book, the court concluded that plaintiff's claim was not barred by the First Amendment because a book cover is "designed to catch the eye of a potential customer.”

    A Mississippi federal court held that a women who appeared briefly in a scene in the Borat movie had stated a claim for misappropriation. Johnston v. One America Productions, 2007 WL 2433927 (N.D. Miss. Aug. 22, 2007), as modified, 2007 WL 2903218 (Oct. 2, 2007). At issue was a scene filmed at a Pentecostal camp meeting where Borat pretended to be converted and began speaking in tongues. Plaintiff, who was participating in the outdoor meeting, was briefly shown with others raising arms "in praise of Borat's conversion.” As to the misappropriation claim, the court found, at least for pleading purposes, that her image was used for commercial purpose. "It seems a matter of common sense to conclude that a motion picture is a commercial enterprise and has a commercial purpose. The purposes of a major motion picture may include intangibles such as providing entertainment or social satire, but they certainly are not free to produce nor are they free to watch. And it is certainly reasonable to conclude that, in theory, a motion picture, like any other commercial enterprise, could appropriate someone's name or likeness in furtherance of the commercial enterprise without that person's permission."


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