Do You Need a Subject's Permission to Put a Video on YouTube?
By Cynthia Boris
From cute baby home videos, to crazy stunts, wannabe singing stars and flash mobs, the range of what you can find on YouTube is amazing, and some uploaders gain fame and fortune from their homemade videos. However, just because you can film it, doesn't automatically give you the right to upload it when there are other people on the other side of your lens.
In general, any footage shot in a public place can be uploaded to YouTube without permission from anyone you may have captured on film. There are exceptions to the rule -- for example, airport restrooms are public places, but shooting strangers in this setting will likely get you in trouble.
The rule that applies here is "expectation of privacy." If a person can reasonably expect privacy in a location, then you cannot film him without his permission. To protect yourself from any legal liability, extend this idea to places where people wouldn't want to be identified, such as in a court room, a doctor's office or a strip club.
Filming in a public place is covered by the First Amendment, but that doesn't mean you won't be sued by an angry and unaware participant. If there's any question, ask your subjects to sign a standard release form which you can find online (link in Resources).
You can shoot video inside someone's home, office or car as long as you have permission. In most cases, a verbal agreement is fine, but there are circumstances where it would be better to have a written release. If there's any chance the video will make money, a release can protect you if your subjects ask for a cut later on. You also need a written release if you give a major website or network rights to use the video on their site.
If your video includes children, it's best to think twice before posting it to YouTube. There are stricter privacy laws regarding minors, particularly if they can be identified in the video, such as when standing in front of their school or wearing a T-shirt with their name on it. Beyond the legal issues, it's simply not smart to post videos of children without the parents' permission. This includes birthday party videos, school outings and Little League games -- if anyone under 18 is involved, have the parents sign a release so they're fully aware of what's going on.
If you're shooting a video that will be used for commercial purposes, you need to have written permission from everyone featured in the footage. This includes shooting a commercial for your business, testimonials from customers, a Web series that generates income or an entry into a contest. Customize a standard release form to explain how you plan to use the footage, and state any rights the subject may have in regard to payment -- for example, is the subject signing away all claims, or will she receive a flat fee or percentage if the video makes a profit?
Now that almost everyone carries a camera in their pocket, it's easy to capture the events of your day and put them online. However, as soon as you point that camera at someone else, the rules change. It's always better to have permission before you shoot. A verbal agreement caught on camera will work in a pinch. It may not seem necessary, but this simple step could keep you from paying big dollars to defend yourself in court after a video goes viral.
Cynthia Boris is the author of three pop-culture books and has contributed to magazines such as "Inside Kung Fu," "Cult Times" and "The Official Buffy the Vampire Slayer Magazine." She also writes for a variety of websites such as Tecca, MarketingPilgrim, BuddyTV, SFUniverse and many more. Boris holds a B.A. in education from Glassboro State University.