When is it illegal to film someone
Is it legal to film/photograph someone in public, and what can you do with the content? [LAW VLOG]
if you take a picture of someone in
public can you do whatever you want with
that picture because it was taken in
public of course not what kind of stupid
question is that
that's how people get into trouble
I am subscribed to a youtuber named
Jamie Windsor he does these fantastic
photography vlogs last week he made a
video called how to approach strangers
for photography to do like candid street
shots and I posted a comment in the
comment section saying you know you
better be careful
this is how you can get into trouble
depending on what you want to do with
that picture and a lot of people were of
the opinion that if you ask people to
take a picture of them you know you sort
of have carte blanche to do whatever you
want with that photo so it sound like an
opportune time to do a vlogger log log
log on the issue of what you can do with
a photograph you take it public or video
for that matter and what you have to be
careful about when you do it so let's
get started alright so at issue in this
debate are two equally fundamental and
important yet potentially conflicting or
mutually exclusive rights freedom of
expression on the one hand and the right
to privacy on the other now a lot of
people tend to think that when you're in
a public arena you have absolutely no
expectations of privacy and that is not
entirely true
just think of a public bathroom for
example it's not good as a public place
that people can go in there and shoot
photographs or videos you still have the
expectation of privacy even when you're
in a public bathroom
okay and shooting video and photographs
in a place of business
technically it's a private place but if
any businesses open to the public is
considered a public place so you can't
shoot video and photos in in a business
but if the owner asks you to stop ya
have to stop and you'd better stop okay
now the the same consideration goes into
filming people or photographing people
in a place of business same
considerations which I'm going to get
into as we get outside here come on
come on guys let's go okay
we're in a quiet Park now so this will
be a little easier sit sit
now it's not just because someone is in
a public place and you can take a
picture of them and do whatever you want
with that picture people still have the
right not to be identified just because
you see someone in public say coming out
of an Alcoholics Anonymous meeting
doesn't mean you can take that picture
and thereby disclose private information
about that person even though they're in
a public place the other obvious example
is making whoa-whoa-whoa
the other obvious example is making
commercial use off a photograph you've
taken in a public place that allows for
the identification of the person this is
why whenever you make any form of
commercial use of a model you get model
releases and this comes back to the
discussion I was having in Jami windsors
comments section where they were talking
about street photography and street
portraits and what you can do with the
portraits if you say ask the person if
you take their portrait what I said is
it's not because someone said yes to
taking the portrait
maybe you have card belongs to do
whatever you want with that photograph
they may have said yes you can take my
picture without the idea that you were
going to publish it somewhere for the
public to see they may have known that
you're gonna publish it something for
the public to see they might not
necessarily want you publishing it in
say NRA weekly or they might know that
you're gonna publish it in a public
place but they may not know that you're
gonna try to commercialize the
photograph and make money off it in
which case if they see their picture in
a magazine down the line they might come
after you and say whoa I just let you
take a picture of me I didn't let you
make money off my image and like this so
this is why incidentally this is why
model releases are pages and pages long
because they cover any and all release
in perpetuity anything you can do with
that portray any variation of that
picture any commercial non-commercial
portfolio use they don't want the model
ever being able to come back to the
photographer's they take that picture
down from that site or from that
magazine because I don't like the way
you're using the image that I let you
take and now we're gonna get into some
case law setting you can back in Canada
the boring parts oh let's go
now a lot of you at this point in the
video might be saying to yourself gee
Biba thanks a lot for this wonderful
legal advice this is not legal advice
this does not constitute legal advice do
not take this as legal advice if you
think you need if you think you need
legal advice consult an attorney these
types of issues are two fact dependent
they are two jurisdictional dependent
they are to applicable law dependent for
anybody to give any sort of sweeping
legal advice on the issue now is the
time the video where I remind you to
LIKE share and subscribe for weekly law
Internet related videos vlogging with
vlogger neva Frye
but I only do one law video a week
because as knowledgeable as I might be
on the subject matter like a territory
okay now we get into the nitty gritty
boring stuff a Supreme Court decision
called
Aubrey versus vice-versa it's a Quebec
decision that went to the Supreme Court
of Canada this is a whole complicated
thing in Canada there is a federal level
and there's a provincial level the
Supreme Court of Canada covers all
jurisdictions of Canada from the
provincial to the federal so you have
your provincial courts then you have
your provincial appellate courts and if
something goes to the Supreme Court of
Canada they will cover every provincial
law statute regulation as well as the
federal rules parenthesis closed Albury
versus vice-versa is about a 16 year old
girl maybe she was 13 with an adolescent
teenager who is sitting on a park bench
a photographer snaps an amazing shot of
her in a contemplative pose she finds
this image published in a magazine about
mental health sues for damages Supreme
Court decides that there are conflicting
rights here there's the freedom of
expression and there is the right to
privacy the girl in question was in a
public place no question the photograph
was taken and published without her
consent no question the court decided
that the photograph allowed her to be
identified and therefore it infringed on
her Quebec Charter right of privacy in
that she has the right to her own image
and the photographer I haven't taken her
photograph and published it without her
consent violated on the right to her
image
she got nominal damages but it
illustrates the conflicting nature of
the rights at issue and how carefully
you have to be there are some exceptions
to taking a picture of someone in public
that allows them to be identified and
that is where there is a public interest
to know celebrity status newsworthy
status things like that but taking a
picture of a girl on a bench publishing
it in a manner that allowed her to be
identified there was no public interest
in doing that so they lost on that
argument um where we going with this I
think the bottom line is obviously ask
permission my point in commenting on
Jaime Windsor's video was that asking
permission is not always good enough
because they're gonna say yeah I gave
you permission to take my picture I
didn't give you permission to publish it
in a magazine I didn't give you
permission to publish to Twitter where I
could be publicly identified let's just
say that you published it to Twitter
they are publicly identified and they
were supposed to be at work and they
something we get fired because their
employer knows now that they warranted
these are the considerations that come
into play and when I say that law has
made me cynical it has made me neurotic
it has made me ever conscious of all the
issues that play whenever I make a
decision that involves someone else so
what is the take away from all of this
live in constant fear of others one ask
for permission to when you get consent
make sure it is clear what the consent
covers consent to take the picture might
not be consent to publish it consent to
publish it might not be consent to
publish it to twitter facebook Instagram
wherever consent the publishers there
doesn't necessarily mean consent to
commercialize the photo you want to
avoid future conflicts with people you
don't want them coming up to you
afterwards claiming things from you
because you did not get their clear and
enlightened consent there's a reason why
waivers and releases or pages long of
legalese jargon that only lawyers
understand that's how we maintain the
monopoly of legal representation that's
a secret for me to you so that's it
be smart be logical it's not because
you're on a public spot that you get to
use a telephoto lens to appear into
someone's bedroom and if you think
that's logical you need more than a
lawyer be courteous be respectful be
conscientious t soon all right I may
have been exaggerating when I said I
find this legal stuff boring because
occasionally there are super interesting
examples who here remembers the techno
viking if you don't know what the techno
waking is stop the video now go watch
the techno viking it's among the
greatest viral videos that has ever hit
the Internet it's a work of art it is a
moment captured in time that watching
there is an amazing story behind the
techno viking viral video what ended up
happening is some guy
captured the techno viking doing his
dance thing at a Berlin Dance Festival
the video went crazy viral got licensed
everywhere left right and center the
dude who took the video started
marketing the guy's image like making
sort of these high contrast silhouette
black on white type things with the guys
finger-pointing you'll know what I'm
talking about if you watch the video he
started marketing the guys likeness and
image the techno viking who was now
thrust into the middle of the spotlight
became an overnight hero he sued the guy
who took the video and he ended up
winning the guy who licensed all the
images the videos all the stuff had to
pay back the techni making whatever he
made from it which he didn't have any
subsequent bankrupt it's a tragic story
in a way it's a life learning lesson for
everyone else what I suspect ended up
happening is that techno Vikings said
dude you're making money off my face I
want a piece of this the guy said no
then the techno viking sued because
ordinarily you know people don't get
sued for being turned into internet
heroes overnight I don't know this to be
a fact at all in fact I have no reason
to believe this above and beyond my own
life experience but the techno Viking is
a perfect example of somebody doing
something even if it's newsworthy being
thrust into the spotlight not losing
their rights to their image and likeness
and not giving someone else the right to
commercialize that person's likeness and
image just because they took the video
in public at a public event almost as
much of a classic maybe even more so
than me
yeah for those of you who don't know
what that is either just google the
words my guy and you'll get the video of
classic just classics so you know BAM
oh I know viral videos that most of the
younger generation never knew existed
what can you do this what can you do
this
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