[Tango-L] Videos of Dancing - the law and the morality (long)

[Carol Shepherd]

Here's some information on the law and the common practices in
publishing which have developed, surrounding this issue -- and thoughts
about the morality of making choices for other people.

There is a general legal right (in many but not all states) to
photograph anyone in a public place for whatever reason.  There is
correspondingly NOT a general legal right (in many but not all states)
to use images of an individual taken in a public place, by publishing
them somewhere where a party will benefit commercially from it, without
the subject's prior permission via a release.

The law on publicity/privacy is different in each state in the US (and
of course -- is very different in the many countries of the world).
Some of the US states have statutes stating a subject's rights and in
other states these rights have been developed on a case-by-case basis.
Particularly where the rights have been developed by case law, the
"rules" will be highly specific (for example, there might be a rule
based on a case, that photos of people outdoors will be legally made,
while photos indoors at a private party will not).  So anyone making a
generalization in the form "there is a legal right to do X or Y" (as I
did above, and as many have just done on this list) must qualify their
statement with a 'where,' ie, which state are they talking about?

As we all know, most photos and images (videos) are made by amateurs
without regard to legal consent.  It's entirely another question what
can be done with the images and whether those images are published. Now
that anyone can publish anywhere via the internet, these issues more and
more frequently come up.  Even though there may be a legal right to take
a photo, most professionals and most publications will not *publish* a
photo without a release.  That's the industry standard which has
evolved.  That standard reflects questions of morality and empathy and
etiquette (and good public relations!) rather than the law.

I am sympathetic with the fact that videotaping can be extremely
valuable to the dance community.  However, I am also sympathetic to the
dancer who is having a private moment on the dance floor and does not
want to have to think at that moment about how they look, and the fact
that that moment is being captured for posterity to be posted on the
internet, forever.  Is Aunt Martha or my boss at BigCompany watching on
YouTube? Maybe I should not have that suggestive look on my face.  What
will my employer think about the appropriateness of full body contact
which takes place in a public place with someone who is not my spouse.

As a culture, we are only just now becoming aware of, and working
through the issues and social implications, that our personal and
formerly private expression of ourselves could be "available on the
Internet forever."  Most people are still very naive and do not think
about this with regard to themselves and may jeopardize a job or a
reputation (this list is a sterling example of extreme comments that
could divulge a person's tendency to be reactive and say lots of very
harsh things -- those are extremely undesirable qualities to a potential
employer.  And this list is archived and searchable under your name, on
Google.  Think about it.  I hope the people I'm referring to, have
secure and guaranteed employment).

 From the empathy standpoint, it takes greatly away from many people's
enjoyment of and absorption into their dance experience, to be worrying
about how one is looking and who will be looking, because a camera is
going.  Many people hate cameras and hate having their picture taken.
So, they cannot relax -- and they came out in their free time and paid
money to relax.  They don't want to think about whether their shirt
collar is straight or they look fat or whether their posture is in
alignment or whether those sweaty pits are showing like dark half moons
under their arms or their hair is disheveled.  They want to savor the
dance.  They want to think about nothing at all and melt into the dance
-- but there's that camera over there.  Do I look good, like I'm fit for
television?  Probably not, unless you have model-quality looks and
professional image styling and makeup.  Beginners in particular may shy
away from dancing completely, because they don't look good and they
don't want to be videoed learning and making a fool of themselves.  That
would truly be unfortunate.

While people may not have a legal right to expect privacy, they
certainly have hopes and expectations about the relative privacy of
their recreational events.  If I go to a tango weekend in Chicago and
all my co-workers know about that and my boss the extremely conservative
Evangelical Christian Googles "Chicago tango October 25" and up comes 15
YouTube videos some of which involve leg wraps and I'm in one of these
videos dancing with a strange man who is not my husband...well, that
experience may permanently change the way he (or other people who may be
in control of various aspects of my life) thinks of me.  Should other
people really be in charge of making this choice for me?

Non-tango dancers have their own idea of what tango is and maybe in the
abstract they don't think about it much and are OK with you doing it.
It's quite another thing to *see you* as you are doing it.  That may be
something the viewer considers too intimate, ie, they don't want to know
that about you.

Still another way to think about the etiquette issue is that Argentine
Tango is even now a highly controversial dance for many people.
Unfortunately, it is frequently marketed and sold via the sleazy/naughty
methodology: "sexy sensual romantic tango - unbridled passion between
two strangers who meet by chance on the dance floor!!!".  Many people,
particularly older people, know it orginated in brothels and involves
full body contact.  It was shocking enough to ordinary society that the
Americans and Europeans invented a Bowdlerized version at full arms'
length, to clean it up (the 'American tango').  Like it or not, these
sentiments still very much exist in our culture, even among younger
people who are socially conservative.  So those who video other people
*and place on the internet* are making their own choices for those
dancers, to expose images of them dancing where anyone can run across
them.  (I know many people who won't put a profile on Match.com because
their co-workers might see it.  Some of those people are dancers who go
out every week.  They would never in a million years want pictures of
them dancing placed online.)

What does etiquette suggest about the practice of subjecting people
to photographs they don't willingly pose for and might not want?
Etiquette says that in social situations, we think of others' needs, and
we aim to avoid putting people in states of discomfort.  If we don't
know for sure, we err to the side of conservative judgment, just to make
sure we don't offend anybody.  Etiquette does not condone an attitude of
"tough those people just have to get over it there is no privacy
anymore" or "too bad, they have to chase after me and serve me an
injunction, ha ha I am the photographer, I have first amendment rights
you know."  So I think it's too bad that organizers have taken the
approach of "if you enter you are agreeing to be photographed, videoed,
and placed on the Internet."  That will ultimately drive many dancers away.

Due to the wide discrepancy between many people's desires and
expectations (privacy, etiquette, being consulted first) and the state
of the law (almost anything goes), the great majority of news outlets,
advertising agencies, and other "publishers" of images have an industry
practice where they *require* a release to be collected from the subject
by the maker of an image, prior to the acceptance of that image for
widespread distribution, where a subject is facially recognizable.

Questions of etiquette and industry practice, however, are -- as noted
above -- entirely separate and unrelated to the state of the law.

This area of law is not settled.  It is constantly developing and is the
subject of much litigation.  There is *nowhere near* a consensus about
these rights -- certainly not as has been confidently represented to
this list in a few short sentences.  To broadly say something is "in the
public domain" (a copyright term by the way, not a right of publicity
term) because people *are in public* says nothing about the permissible
legal uses to which an image of an individual taken while in public can
be put. Commercial use of such images should be assumed to require
express permission (with the definition of what is "commercial" varying
fairly widely from state to state -- in some states it's anything with a
non-profit bent, in others you can put someone's picture in public on
your cereal box to sell cereal and it's not "commercial.")

Here's an example of one such law (New York Compiled Laws).  The statute
reads clearly that there is a right to avoid the use of your image in a
manner that benefits a party commercially.  (The statute says "right of
privacy" but this is actually more commonly referred to as a "right of
publicity" -- the right to avoid the publicizing of one's image without
compensation.

New York Compiled Laws.  Article V.

Sec.  50.   Right  of privacy.  A person, firm or corporation

that uses for advertising purposes, or for the purposes of trade,

the name, portrait or picture of any living person without having

first obtained the written consent of such person, or if a minor

of his or her parent or guardian, is guilty of a misdemeanor.

("Newsworthiness" and "celebrity" are two exceptions to the rights under
this type of law.  The exceptions have developed on a case by case
basis.  Celebrities almost always can invoke this right to be
compensated, in every state, if their image is being used to sell
something; but even the average individual has the right to be
compensated in many, but not all states. Politicians almost never have a
right to object to anything or be compensated unless it is seen as a
direct endorsement of a product, and politicians and celebrities don't
have this right with regard to their daily comings and goings, which are
always considered "newsworthy."  So maybe, maybe you can put a picture
of George W. Bush on the front of your cereal box, because he's a
sitting president and is therefore always "newsworthy" and his image is
widely in the public domain as a function of his job.  But even then I
am doubtful and I think he could stop the cereal box usage under the law
of *some* state, and he would only need one. And of course, any picture
of Britney Spears' navel is always considered newsworthy.)


Some interesting questions which pertain to tango and this list:

Is YouTube exempt from this NY statute?  (and the law in all the other
states)  YouTube contains advertising on the page. YouTube benefits
commercially from traffic to its site, the traffic is what drives its
advertising revenues.  That is how YouTube makes its money: people
create content and place videos up there for other people to view and
YouTube makes money from the advertising on the side of the page. Well,
YouTube is being sued all over the place.  #1 for videos which are of
copyrighted content being used without the owner's permission.  #2 for
videos which violate someone's right to privacy.  And of course they are
only sued over what actually gets discovered, there are tons of videos
on YouTube that violate the law.  My professional estimate is that 90%
of the content placed on YouTube violates the law.

(BTW, people, don't rely on Google as a model citizen when it comes to
compliance with the current state of the law.  Google is constantly in
litigation over their many practices and they play the role of the 600
pound gorilla at the reform edge of the law rather than in compliance.
They have enough money not to care whether they are in compliance with
people's legal rights.)

I think anyone posting images of dancers without a release, on a website
(or blog) which receives advertising-related income based on hits and
clickthroughs, is potentially in trouble under the law, in some state or
other.

Is there a journalist's legal exemption of "newsworthiness" for
bloggers?  Well, that's being litigated in courts around the country and
is still being decided.  I wouldn't advise any of my legal clients that
they could rely on it (yet).  And I would never advise them to go
forward and publish images online without regard to whether they are
offending their subjects or creating permanent consequences in those
people's lives.

Carol Shepherd
Arborlaw PLC
business, technology, entertainment and media lawyer



Stephen.P.Brown at dal.frb.org wrote:
> In the past few months, several people have posted videos on YouTube 
> and/or personal websites/blogs of others dancing at milongas at various 
> tango festivals.
> 
> A milonga is a private social event.  It is not a performance.  Nor is it 
> news in the sense that an individual's simple pariticipation creates an 
> implicit right of usage.  I know that to some extent that private lives 
> have become more public in the United States, but this outing has been 
> voluntary by of those seeking personal publicity.
> 
> In seems to me that someone shooting a video of a milonga and posting it 
> to  his website/blog or YouTube is making an unwarranted and uninvited 
> invasion of privacy.
> 
> Maybe I am wrong.
> Maybe the people attending the milongas who were captured in the videos 
> signed releases allowing their dancing to be filmed and publically 
> distributed?
> Maybe the organizers of the events included a notice that the events may 
> be video taped and publically distributed?
> 
> The organizers of tango festivals often ban video recording of the classes 
> and the instructors' performances.  Maybe the organizers should also 
> explicity ban video cameras from the milongas.
> 
> With best regards,
> Steve
> _______________________________________________
> Tango-L mailing list
> Tango-L at mit.edu
> http://mailman.mit.edu/mailman/listinfo/tango-l
> 

-- 
Carol Ruth Shepherd
Arborlaw PLC
Ann Arbor MI USA
734 668 4646 v  734 786 1241 f
http://arborlaw.com

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