Published in the Location Managers Guild of America's Compass magazine.
PAY ME…If YOU FILM MY HOUSE!
Location managers have a difficult job. On the one had they have to keep a client’s or employer’s business interests in mind when they find a location and then calculate how much that location will cost to film including transportation, hotels, etc. In addition a location manager must also keep in mind the legal aspects of filming at that location. Such legal aspects include the execution of specific contracts for the rights to use a location and the inevitable payment(s) to the neighbor who wants to mow their lawn during filming or who wants payment because their house is tangentially in a shot or two. This article will deal with what to do regarding the demand for payment regarding the tangential photography of a house.
There are two general principals you need to keep in mind:
1) There is no expectation of privacy for buildings or people if they are photographed from a public vantage point; and
2) Anybody can sue you for anything.
Therefore, if you are photographing a house from a public venue, and you are not making this house the focal point of your show, in most cases you legally have no obligation to pay for the fact that the house is in your frame. This is why Google Street View does not pay for photographing your house from the street. I have emphasized the word “general” because as we all know there are exceptions to everything and now it’s time to look at some of those exceptions.
As stated in the above paragraph, you can not make the house a focal point of your show, either from a single show or over the course of a series. If you do so, and the house becomes associated with your show or a character from your show, there is the possibility that the general public will want to visit that house and disturb the owners of the house. And let’s be honest in today’s information world, although you may try to keep that information private, it always gets out to the public. In such a case it would be better to get the permission of the homeowner to use the house in the show. If you do not, you may be liable for intentionally intruding upon the solitude or seclusion of the homeowner under §652B of the Restatement of the Law, Second, Torts when hoards of people show up on the front lawn of the house.
The famous case of a racecar driver (Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974)), enforces the fact that an object can become associated by the general public with a particular person and liability can arise because of that association. In Motschenbacher, the court found that an unauthorized, altered photograph of Motschenbacher’s race car by a company in its advertising was a violation Motschenbacker’s right of publicity. Although Motschenacher involved a right of publicity claim, the case shows that if you make an association with the general public with a particular house because of your filming, liability may arise under numerous theories of the law including intrusion of solitude or seclusion or other applicable law.
You also need to be sure that you are really filming from a public location. In a recent case involving Google (Boring v. Google, Inc. (2008)) Google was sued for invasion of privacy, negligence and trespass, among other counts, when its Google Street Views took a picture of a house that was on a private (not public) road. The road in question in the Google case was clearly marked with a sign that stated “Private Road.” This case is currently pending with the court, but it reinforces Rule 2, above.
A final factor to consider is that privacy and publicity laws are based upon state, not federal laws, so they will vary from state to state. Therefore, you can’t rely on what you know is the law in one state if you then move to another state. You need to determine the law in each state you are shooting in and when in doubt always consult with attorney.
In the second part of this article we will look at the legal ramifications of filming an architecturally significant building, sculpture or a work of art is on a building or visible from a public venue.
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About the author: Jim Talbott is a Principal in the law firm of Talbott & Talbott. Mr. Talbott specializes in all aspects of intellectual property, entertainment and technology law. He has spoken at the Banff New Media Center, MIP-TV in Cannes and most recently at the US Sports Film Festival. As a writer, Mr. Talbott is an author, editor, and frequent lecturer on digital media-related legal issues. He has authored and co-authored several legal books, including the popular New Media: Intellectual Property, Entertainment, and Technology Law published by Clark Boardman. His articles have also appeared in the American Bar Association’s Entertainment and Sports Lawyer and The European Intellectual Property Review among others. Topics include: Intellectual Property Law, Entertainment & Technology, Copyrights, Unfair Competition, Regulation of the Internet, and Software Taxation. He is invited to speak all over the world, and has presented at the Cannes Film Festival, MIP-TV, American Bar Association Forum on Entertainment and Sports Law, Screen Actors Guild and the Banff New Media Festival.
If you have any questions or comments on this article, please feel free to email me at lmga@legalinterface.com.
Disclaimer: This article is intended to give general information only and is not intended to give specific legal advice or create an attorney-client relationship. You should seek competent legal advice for any specific questions or situations.
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