Why don't tiktokers need release forms?
July 16, 2022 3:43 AM   Subscribe

Why don't tiktokers (of "random acts of kindness" style) need to get release or consent forms from their subjects?

This story about a woman who was very angry when she realised a weird experience was actually a tiktok viral video has got me thinking.

You see, about ten years ago my sister (then a cinema/media studies student) interned for "Prank Patrol" - a kid's TV show where gentle pranks were played. One of her jobs was to chase down people and let them know they'd been filmed and to get them to sign release forms so they could use the footage on TV.

Why is Tik Tok (YouTube, whatever) any different? Prank Patrol also filmed on city streets.

Bonus example- what about movies? There are a lot of movies with street scenes- Elf comes to mind where Buddy thinks he sees Santa- apparently not an actor but a member of the public! And the "I'm walking here!" scene in Midnight Cowboy where Dustin Hoffman famously didn't break character.

Jurisdiction here is Australia but keen to hear of other laws in other places too.
posted by freethefeet to Law & Government (8 answers total) 4 users marked this as a favorite
Your link isn't working, but this article on ABC News has more detail on why it's allowed. I think the defamation part could be the most relevant? It's easier to argue that a prank has shown you in a bad light than a (huge quotation marks) "random act of kindness".
posted by Adifferentbear at 4:32 AM on July 16, 2022

The general field of law here is known as "Right of Publicity" and it is a thorny thicket indeed, with the laws varying dramatically not only from country to country but also from state to state within the US. Generally speaking in US states with Right of Publicity laws, in order to have a right of publicity claim, you need to be readily identifiable in the work (so just being in a crowd doesn't count) and the work needs to be distributed for commercial purposes. (Looking at Adifferentbear's link above, it looks like Australia's protections are much weaker, limited to works that might falsely indicate an endorsement of a product).

But setting aside the abstract legal principles in play, a lot of this is governed by practicalities. Prank Patrol is a TV show aired by a major media corporation with deep pockets (i.e. a good lawsuit target) and is a show whose premise involves filming members of the public. If they weren't diligent about getting releases, they're basically guaranteed to get sued sooner or later. Paying a production assistant to chase people down with release forms is almost certainly cheaper than paying out settlements. TikTokers on the other hand, are smaller operations and are much less tempting lawsuit targets. The amount of money involved is much less likely to be worth a lawyer's time.

In the Elf example, they clearly set out to shoot some crowd scenes, so I guarantee you that just behind the camera there was a harried PA like your sister with a big stack of release forms. In the Midnight Cowboy example, they may not have gotten a release (since by the time the camera stopped rolling, the guy was already driving away) but if not, they must have decided that the probability of actually getting sued times the cost of a settlement was small enough that it was a price they were willing to pay to keep that scene in the movie.

Another relevant strategy that production companies use is the "Crowd Release." If they're filming in a venue with reasonably defined access points (e.g. a theater, or a festival) they'll post signs at the entrance saying, in effect "we're filming here, by being here you consent to be filmed, if you don't like it you can leave."
posted by firechicago at 5:00 AM on July 16, 2022 [8 favorites]

I've assumed it's due to a grey area as to what counts as "commercial". Adifferentbear's article says:
If a video taken in a public place without your consent is posted online, there isn't much you can do in a legal sense unless the video is defamatory or it's considered commercial.
If some random TikToker or YouTuber with hardly any followers does one of these videos you'd be hard pushed to say it was commercial. If they have millions of followers and lots of sponsorship deals, and maybe even staff, then I guess it's commercial - so you could feel free to take legal action.

To answer your question - "Why don't tiktokers need to get release or consent forms" - they don't need to because so far there's no consequences for them of not bothering. Until/unless people start taking legal action - or there's some big upset over certain videos/events - they'll just carry on.

And then there's the big grey area of slightly-more-popular TikTokers - what even is "commercial"? How many followers do you need?

As for movies - I suspect a lot of "real" street scenes are actually full of extras. A friend watched a street scene being filmed for the TV series "Slow Horses" a while back. It was a distant shot, only a few seconds long, and every person and vehicle was part of the shooting. They did more than one take and every thing went back to their start positions each time. Watching it, I'd have assumed the actors were walking down a street full of regular people and vehicles, because why bother going to all that trouble and expense? Little did I know.
posted by fabius at 5:03 AM on July 16, 2022 [4 favorites]

Best answer: To your bonus examples…

It’s true the famous “I’m walkin’ here!” scene from Midnight Cowboy initially had an unplanned encounter with a random NYC cabbie (which is why Dustin Hoffman in interviews has always described himself as staying in character and improvising that scene). However, director John Schlesinger, realizing it was a great moment, got an extra to drive a fake taxi to re-enact the confrontation with Hoffman’s character in subsequent takes. It’s highly likely that one of these takes is what actually appears in the film.

Although an adult walking down the street in the US, such as the guy who looks like Santa, doesn’t have an expectation of privacy under the law, any commercial project (and certainly a big Hollywood movie like Elf) would still get a release if they made a prominent appearance in a scene (i.e. they weren’t just a face in the crowd). Somebody from the production chased down Santa-guy and got him to sign.
posted by theory at 5:12 AM on July 16, 2022 [6 favorites]

To add another point to firechicago's, most states in the U.S. have weak, if any, right of publicity laws, especially for "ordinary" people. In New York, for example, almost the only way you can run into trouble is if you use someone's image for an actual ad without consent (and that means an ad for something else, not for, e.g., the show that person's image appeared in). But it's a lot cleaner to get someone to sign a piece of paper than to have to worry about specific state laws.
posted by praemunire at 9:18 AM on July 16, 2022 [3 favorites]

As others have explained, shows like Prank Patrol are not required by a law to get releases. They do it because it protects them from potential lawsuits. I am speculating here, but they may have an insurance policy that defends those lawsuits and the insurance company requires them to get releases.

Random Tik Tok creator isn’t thinking about getting sued and doesn’t have insurance.
posted by Xalf at 10:58 AM on July 16, 2022 [1 favorite]

Another way of rephrasing your question might be "why do TV shows use release forms, and tiktokers don't." "Need" assumes an external force setting rules, and most things are better explained as an interplay of forces causing different people to make different risk/benefit tradeoffs.
posted by Lady Li at 12:56 PM on July 16, 2022 [4 favorites]

Like, as the release collecting person on the show, you need to get the releases because it's your job; someone above you needs to give them to the corporate overlord because the corporate overlord has this as a blanket requirement for every show, but the corporate overlord decided to do it basically as an insurance policy against possible future liability. Just like any unlikely-but-expensive possibility, it's going to make more sense to insure against it the more times you plan to roll the dice.
posted by Lady Li at 1:00 PM on July 16, 2022 [3 favorites]

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