Checklist: Which Consents and Rights Are Mandatory for Video Recordings?

Consent Rights Video Film
All consents obtained legally binding? | © Photo: freepik

Whoever produces a video owns the rights to it. But that alone isn’t enough for you to do whatever you want with a movie. As soon as you are not only in front of the camera yourself, or if you include branded products in your story, you will have to deal with additional rights in video recordings. The checklist in this article shows you which legally binding consents you need.

The law gives us rights, but it also imposes obligations on us in the service of the information society! Thus, every person has the right to determine whether or not he or she wants to be recorded with images and sound.

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© Foto: indienews.com
Clear rules of the game

Simply explained: What you need to know about film law

Film law is not a single law. It’s a catch-all term. This includes all aspects that are typically correct for the production, marketing or use of film and video. This includes copyright law, licensing law, aspects of personal rights, commercial law, data protection law, regulations for the protection of minors and rules and regulations of professional associations.

Film law, more rarely also called video law, also includes case law, because courts repeatedly interpret the laws and ordinances on film and video using the example of concrete cases from practice and thus concretise them.

A filmmaker has a duty to actively seek consent for video recording or filming in advance of filming. If this is not done and no consent is subsequently given, the law requires the destruction of the footage already recorded.

Consent to filming of the persons in front of the camera

Without the express consent of the respective person(s), regardless of whether they are a customer, a passer-by on the street or an employee, no video, no film recording may be recorded or published. Regardless of whether it’s in 8K with a professional camera or the old Nokia mobile phone from the last century.

A merely presumed consent to the making of film recordings does not satisfy the law. Especially for the documentary film this has serious consequences. This is also evidenced by the filing of a constitutional complaint with the Federal Court of Justice in Karlsruhe.

As soon as you shoot a person in front of the camera, you are not only recording personal data in a technical sense with the video recordings. This circumstance alone requires consent according to the GDPR. Regardless of whether you also publish the video or edit it further.

You need consent not only from amateurs, but also from actors and – as strange as it may seem – also from a manager who is your client and appears for his own company in his own image film.

The following checklist is not exhaustive. Depending on the place of filming and the nationality of the people involved, different laws may apply to filming. The legislation and jurisdiction on data protection, copyright and personal rights are not identical in all points in Germany, Switzerland and Austria. The rules of the game for film law are even structured completely differently in Great Britain, the USA or Australia, for example.

Checklist for required legal consents (non-exhaustive)
Rights available for the intended length of use? (Ex: 1 year, or: unlimited)
Confirmed use for the desired territory? (Ex: only for Germany, or: worldwide)
Permission to use the media/channels? (Ex: trade fair stand, or: Internet, or: Facebook only)
Is the type and amount of compensation (or free participation in the film) regulated? How?
Must / may the filmed person be named? If so, how?
For corporate videos, should the function be mentioned? If so, how?
Can the employer’s logo be shown in corporate videos?
Can the final video be published without approval?
Does the filmed person have the contact address of the filmmaker

Remember that consent can be revoked at any time. You are therefore well advised not to shoot anything or change anything during video editing in such a way that a person recorded has reason to object.

Special case: minors / young people at the shoot

Those who cannot legally give their own consent to participate in a film shoot or video production must be represented by a person of legal age. As a rule, it is only the parents. Even if a child/adolescent consents: without the consent of the parent/guardian, the consent is invalid.

Checklist for consent of young people to filming (not exhaustive)
Is the consent of the (legally authorised) legal representative available?
Special legal regulations known and compliance guaranteed?
Presence of parents or caregiver on film set clarified?
Preparation for delicate scenes (e.g. violence) regulated?
Type of rights transfer and consent specified? (Medium, e.g. web or YouTube only)
Agreement on the duration of the validity of the transfer of rights?
Scope of validity of consent agreed? (Germany only? Worldwide?)
naming unambiguously defined?
Can the final video be published without approval?
Does the legal representative of the person filmed have the filmmaker’s contact address?

Note that if you are filming with minors, there are additional legal requirements for filming in almost every country in the world that you need to be aware of. These concern in particular the maximum shooting time per day or prescribe the rules on how young people must be supervised on film since.

Permission to use branded products and logos

Brand products and logos are legally protected. Here, as is almost always the case when it comes to legal issues, you’re dealing with a whole range of different areas of law depending on how the video is structured. The inclusion of a product or logo may infringe copyrights or trademark rights or may be prohibited by competition law. The consequences of a violated legal right can be serious.

Checklist for integration of logos and products in videos (not exhaustive)
Is the product or logo recognizable in the film? How? In what context? For how long?
In what context is a logo or brand product used?
What is the film genre? Amateur video? Commercial? Corporate video?
Are there comparable other films / videos in which the products or logos can be seen?
Has the owner of the rights to a product or logo been contacted in advance?
Can the product (real or digital) be alienated / unrecognizable / generalized?
Is the integration a prop or a supporting element of the film plot?

A first, legally of course not watertight clue, what you may do and where recognizable you better do without visible brands or products from props, is common sense. No company is happy to be seen in a negative context as a brand or the product it produces.

Transfer of rights of use Video
Influencer Make-up Tutorial: Attention with Logos and Integration of Products | © Photo: freepik

Likewise, and this is often forgotten, each company pursues a very specific strategy as to how it positions itself in the market. Even if you present a product or brand logo in the best possible light with a lot of good will and no bad intentions, from the point of view of a product manager or brand specialist this can be undesirable or even damaging.

Shooting locations / Film locations

Of course, you’ll also need consent to shoot video at the location of your choice. This does not only concern the right to shoot a film or video in places that are privately owned. A permit is also required on public property if the film crew exceeds a certain size or depending on the intensity of use.

Checklist for filming permission at locations (not exhaustive)
Owner / person entitled to dispose of property informed about purpose of filming and film content?
Consent given for use of property during filming?
If rights to the object exist: Consent for filming location to appear in video / film?
Amount of compensation (including cleaning) regulated?
Arrangement made for insurance cover? Who pays the costs?
When filming in public spaces (incl. parking lots): Authorities informed?
Environment of the turning object (noise complaints, etc.) checked and informed where necessary?

Rather exotic, but nevertheless a reality, is the fact that, for example, rights can also exist to the design of a building or other objects such as a letterbox with a special design.

Again, in order to assess whether you should consult a legal advisor for further consideration of the need for consent, it is advisable to consider how prominently such an object appears in the film.

Written consent

Consent to participate in a video must be given in writing by the data subject. Effective consent must be confirmed by hand with a personal signature. When signing up employees for a video testimonial, it is necessary to check with the relevant departments in your own company. With an employment contract, the rights to one’s own image are not automatically assigned to the employer.

It’s true that you can get justifiable consent after the shoot (as with management without a contract). But if you don’t get it, you have a big problem. In practice, especially when it comes to compensation, you make yourself vulnerable in this way, because you then have to buy consent in the truest sense of the word.

Watch out for buy-outs!

Particular care must be taken in the case of buy-outs. A full buy-out is often understood as an unrestricted assignment of rights. However, it does not automatically include the acquisition of all rights for all times, for all territories and for all media and channels. The legal qualification of buy-out is therefore different than one might think based on the wording as a legal layman. Just using the term in a declaration of assignment doesn’t settle anything.

Indispensable legal prohibitions – where consent remains inconsequential

In every legal system there are values that one cannot agree to give up. Even if we have a performer declare in writing to waive all personal rights or bodily integrity for all time, the consent of the person concerned is legally invalid in our jurisdiction.

For the same reason, there are absolute prohibitions that must not be overturned. This concerns, inter alia, certain aspects of the portrayal of violence or sexuality. Or, this is also an important topic, the handling of animals during filming. If a screenplay touches on any of these areas, even marginally, you should never forgo legal advice from a lawyer.

Disclaimer

The comments made in this article are intended to raise awareness of the need to obtain written consent for the depiction of persons or objects. All information expressed is of a fundamental nature. They can therefore only be generalised to a limited extent or not at all and can never replace legal advice from a lawyer.

This article was automatically translated into English using AI. If you would like to help us improve the quality, we would be happy to hear from you.

Editorial Staff Filmpulse
About Editorial Staff Filmpulse 264 Articles
Under the designation Editorial Staff Filmpulse, articles appear that are created or edited jointly by several members of the editorial staff.

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