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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