Woman wins a lawsuit against video company for filming her without her consent

Nov 29, 2017

Dunja Djudjic

Dunja Djudjic is a multi-talented artist based in Novi Sad, Serbia. With 15 years of experience as a photographer, she specializes in capturing the beauty of nature, travel, and fine art. In addition to her photography, Dunja also expresses her creativity through writing, embroidery, and jewelry making.

Woman wins a lawsuit against video company for filming her without her consent

Nov 29, 2017

Dunja Djudjic

Dunja Djudjic is a multi-talented artist based in Novi Sad, Serbia. With 15 years of experience as a photographer, she specializes in capturing the beauty of nature, travel, and fine art. In addition to her photography, Dunja also expresses her creativity through writing, embroidery, and jewelry making.

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Basia Vanderveen from Ottawa sued Waterbridge Media for recording her while she was jogging along the river in Westboro. She has won the lawsuit, and according to the video company, the court’s decision will have “a chilling effect on the media industry.

The two-second clip appeared in a promotional video for Bridgeport condominium. When a friend told her that she appeared in it, Vanderveen sued because the footage of her had been used without her consent.

Paul Champ, Vanderveen’s lawyer, said that “it’s about the right to control one’s image.” Even though we live in the age of social media, he claims that we still have the right to enjoy some measure of privacy, even in public places.

Vanderveen was filmed in 2014 while she was jogging along the Ottawa River in Westboro. She testified that she saw the camera and covered her face, indicating that she didn’t want to be filmed. Despite her gesture, the cameraman reportedly went on recording. After a while, her friend saw the video online and notified her. At the time, Vanderveen had only recently taken up jogging after giving birth to her children. She felt that the video made her look overweight, which made her feel uncomfortable.

Champ said that Vanderveen complained to the condo company and they immediately removed the video from their website. However, Waterbridge Media left the video online for a longer period. The media company did eventually take down the video and it is no longer available online. .

As the Ottawa Citizen reports, Waterbridge Media argued that it should be allowed to use the footage because it didn’t use Vanderveen’s image in an unflattering or embarrassing way. Champ argued that “how someone sees themselves is more important than how a third person sees them.” He explained that Vanderveen has competed in four Ironman triathlons since she first took up running. He added that she is incredibly fit, and looks fine even in the video – but this is not how she sees herself in it.

Waterbridge Media president Brian Frank called the court’s decision a “gross overextension of the law” and “a ruling that does not belong in the year 2017.”

“In a day an age where everyone has a video camera in their pocket, when everyone has a camera in their pocket attached to their cellphone, it’s unbelievable that a ruling like this was made.”

Frank added that this is the first time the company has received a complaint like this. He warns that the decision will have “a chilling effect on the media industry.”

“It essentially means you’re not legally allowed to capture any public areas in video. It’s not just about whether the person is representing the brand you’re shooting for or you’re misrepresenting their endorsement of a product or service. If they’re visible at all, you can’t capture them. That’s really, really harmful to the industry.”

In response to this, Champ said that news organizations will still be able to film public scenes as a part of news coverage. In this case, it comes down to the limits to the expectations of privacy. He added that Vanderveen wouldn’t have had any expectation of privacy if she had been filmed during an organized race or any other event showing a large group of people. But here specifically the courts decided that Westbridge Media had crossed a line. Vanderveen was awarded $4,000 for breach of privacy and $100 that she should have been paid for appearing in the video. After the court’s decision, Waterbridge Media has 30 days to appeal the decision. However, as Frank told the Ottawa Citizen, the company still hasn’t decided what to do.

This appears to be a tricky case to me. However, I don’t understand the law (especially Canadian law) in depth and I can only comment from the point of view of someone who wants to preserve at least some privacy. Even though Vanderveen was filmed in a public place, the footage of her was used for commercial purposes. According to her testimony, she expressed with a gesture that she didn’t want to be filmed, yet the clip was published. Finally, I agree with Champ’s argument that it’s important how we see ourselves in a video, not how someone else does. I know I really wouldn’t like any unflattering footage of me to appear in a commercial. So I believe that the court made a good decision in this case.

On the other hand, the question of filming in public places still remains. We certainly have the right to privacy, but in this era, how can we even determine the boundaries? What do you think? Did the court make the right decision? And could it really affect the media industry?

[via the Ottawa Citizen]

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Dunja Djudjic

Dunja Djudjic

Dunja Djudjic is a multi-talented artist based in Novi Sad, Serbia. With 15 years of experience as a photographer, she specializes in capturing the beauty of nature, travel, and fine art. In addition to her photography, Dunja also expresses her creativity through writing, embroidery, and jewelry making.

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38 responses to “Woman wins a lawsuit against video company for filming her without her consent”

  1. Duncan Knifton Avatar
    Duncan Knifton

    will this effect street togs…?

    1. Duncan Knifton Avatar
      Duncan Knifton

      typo…..lol
      thanks for pointing it out…. ;)

    2. Duncan Knifton Avatar
      Duncan Knifton

      Affect …..

    3. Travis Gauthier Avatar
      Travis Gauthier

      No. It’s because the video was used in a commercial manner.

    4. Duncan Knifton Avatar
      Duncan Knifton

      But some street togs make a living doing it. So isn’t that the same thing.

    5. Travis Gauthier Avatar
      Travis Gauthier

      No.

    6. Duncan Knifton Avatar
      Duncan Knifton

      Sorry. Just opened up the same question in the thread. I don’t do street work. So just wondering

    7. Travis Gauthier Avatar
      Travis Gauthier

      (Note that I’m talking about the US here, the story takes place in Canada)

      Commercial usage means they are using her likeness to sell a specific product. Street photography is protected by the First amendment and if you are in public you have no expectation of privacy.

    8. Duncan Knifton Avatar
      Duncan Knifton

      Travis Gauthier many tanks :like:

    9. Vincent Cyr Avatar
      Vincent Cyr

      Shouldn’t. As long as the photos is used in a journalist or artistic endeavor(In a newspaper or art gallery) the photographer is safe from suit. It becomes a matter for the courts, as in this case, when it is used in a commercial manner, to advertise something. You can’t use a recognizable photos of someone in an advertisement without permission.

  2. dracphelan Avatar
    dracphelan

    This is just my opinion, but I don’t expect privacy in any public space.

    1. Motti Bembaron Avatar
      Motti Bembaron

      Maybe so but this is very different. I have many travel photos with different passers by in them. I put my travel photos on my web for friends and family. HOWEVER, if I ever wanted to use any of them for commercial or marketing use, paid or unpaid, I will only use photos that me or/and my wife in them. I will never use any photo that has other people in it in a way that you can recognize them. It is common sense.

      This was a deliberate act of filming an individual who did not want to be filmed and then use it for a commercial add for everyone to see..

      The court was right.

  3. Jen King Avatar
    Jen King

    I don’t think it’s that she was videoed, more that her image within that video was then used in a commercial manner and in a round about way she is seen (by use of her image in video) to endorse the product being advertised.

    1. Feroz Khan Avatar
      Feroz Khan

      Absolutely agree

    2. Feroz Khan Avatar
      Feroz Khan

      If you have model releases for people who are identifiable in the stock photography industry, the same should apply here

    3. Vincent Reyna Avatar
      Vincent Reyna

      These media guys should have known better about the model release stuff and the difference between commercial and news broadcast. It’s the same for photographers.

    4. Travis Gauthier Avatar
      Travis Gauthier

      This is the issue. It seems that the writer of this article does not understand that.

      1. catlett Avatar
        catlett

        This particular writer does a lot of that from what I have seen. Lots of logic leaps that either are because she doesn’t understand, lazy thinking / writing or is doing it intentionally as click-bait.

  4. Jia Chen Lu Avatar
    Jia Chen Lu

    Marvin Ewe

  5. Exit138 n Avatar
    Exit138 n

    Jen King is correct as far as the trial judge saw it.

    From CBC Ottawa:

    “At trial, Waterbridge testified it wasn’t the photographer’s intention to capture individual people, rather the “environment, river, and geography.” However, the judge didn’t buy it.

    “The photographer was not just filming a moving river, he or she was waiting for a runner to jog along the adjacent jogging trail to advertise the possibility of the particular activity in Westboro,” Judge Roger Leclaire wrote in his judgment.

    “The filming of Mme. Vanderveen’s likeness was a deliberate and significant invasion of her privacy given its use in a commercial video,” the judge added.

    Vanderveen was awarded $4,000 in damages for the privacy breach and $100 in “damages for appropriation of personality,” which is an estimate for how much it would have cost the company to hire an actor for the jogging scene.”

  6. Duncan Knifton Avatar
    Duncan Knifton

    So anyone who makes a living out of street photography has to provide a model release form for everyone who they take on a public street ??

    1. Duncan Knifton Avatar
      Duncan Knifton

      I don’t do street work so just intrigued

    2. Kyle Gorman Avatar
      Kyle Gorman

      Technically yes, especially if it’s used for profitable reasons!

    3. Dajanaye Rollins Avatar
      Dajanaye Rollins

      Can’t you just blur them out or something to obscure them?

    4. Jeremy Deihl Avatar
      Jeremy Deihl

      The answer is most definitely yes. If you are going to use an image or video of someone and they are recognizable then you HAVE to have a model release for them. This is in no way new news to photographers and I can’t believe a media company that continually produces commercial clips did not know that. If it was not used for profit there might not be a big stick over it, but if you plan on using your piece for profit in any way you must have the proper documentation. And to be 100% honest you should have a property release to shoot anywhere that is not public as well

    5. Duncan Knifton Avatar
      Duncan Knifton

      then people like London based tog Dougie Wallace could/should be in trouble then? As I doubt he has asked each one of his “victims” to sign anything
      http://www.dougiewallace.com/harrodsburg/

  7. Renato Murakami Avatar
    Renato Murakami

    Ok, so… here are some stuff to read:
    http://www.dmlp.org/legal-guide/using-name-or-likeness-another
    https://en.wikipedia.org/wiki/Personality_rights

    I wouldn’t say the case has a “chilling effect on the media industry” because cases like these have been around for quite a while now, but it is a complicated area.
    The quote comes from the company, as expected, but I’m quite positive that even in Canada precedent cases must have been estabilished already.
    Read this: https://en.wikipedia.org/wiki/Personality_rights#Common_law_provinces

    You have to see this one less on the rights of a photographer or videographer to take images in public spaces, and more on the rights of the individual not to have his/her image taken for an exploitative purpose (product endorsement) without consent.

    Cases like these can go down in details, but if you are a commercial photographer, you just cannot use the image of people to imply endorsement of a commercial product without consent from actors/actresses, period – doesn’t matter if it’s a public or private space.

    This doesn’t affect street photographers, journalists, artists and whatnot because there’s no correlation of people in public spaces to a commercial product or service per se – unless you are selling the photos later for commercial use. Then you are going to need a model release from people in the media, or risk a lawsuit.

    Key difference to my undestanding: it’s not the fact that you are taking a photo in public, it’s the association of one’s likeness to a commercial product.

  8. catlett Avatar
    catlett

    Terrible and inaccurate headline. They weren’t sued for filming her. They were sued for using the footage commercially. HUGE difference.

    1. Stereo Reverb Avatar
      Stereo Reverb

      A good clickbait title ensures people will read it, whether it has substance or not.

  9. Adam Sternberg Avatar
    Adam Sternberg

    I think it’s worthy of noting this took place in Canada…different laws there than in the US.

  10. Steven Naranjo Avatar
    Steven Naranjo

    Bad click bait. And Canada already has problems with freedom of speech and expression issues.

  11. Denis Germain Avatar
    Denis Germain

    It has been this way for Years in Canada….
    you can shoot anything and anyone in public places **BUT** it is what you do with the images that matters!
    – Commercial use in this case, and her face was recognizable

  12. Eric Pomorski Avatar
    Eric Pomorski

    Gotta love it when entitled photographers think everything in public view belongs to them. Their failure to get consent forms reflects upon their own reckless business standards.

    1. Willamina Trillium Mosenfelder Avatar
      Willamina Trillium Mosenfelder

      Even when people are out in a public space it’s both important and courteous to ask, especially if showing work publicly for sale. Not to mention asking and having a consent form on hand is friendly and just might result in a sale when the work is completed. Manners are important!

  13. David Campbell Avatar
    David Campbell

    The company’s statement that this will hurt the industry is essentially whining to engender public sympathy. Everything was normal and fine until they decided to use the video in a commercial endeavor. AND, at that point, she came forward to request that her image not be used. The obvious thing to do is to drop the video and go refilm it, or go back to editing and see if there is a portion that has no people, or that all people can be identified and queried for permission. That is NOT new; that is standard procedure.

    This ruling merely adds explicit definition to a line that was already well-understood by media workers. These folks thought they could ignore those rules, or that somehow they didn’t apply for them, and the court cleared it up for them.

  14. Jeff Hayward Avatar
    Jeff Hayward

    Commercial use. No release or compensation. She had a case, as much as I’m in support of public photography.

  15. Kryn Sporry Avatar
    Kryn Sporry

    In this particular case I think the right decision was made for several reasons.
    First of all there’s the privacy, but I’ll admit that that one could be challenged as the lady was in a public area and should expect to be filmed/photographed.
    Secondly, there’s decency. She clearly indicated she did not want to be filmed, yet they continued doing so without her permission.
    Again, this could be argued as it’s a public area. Doing so may make you an asshole, but it’s not illegal.
    The third one matters mostly IMO. The company used the materials commercially without her consent, and without model releases in place. And if I’m not mistaken, that should be in order before you can use the materials commercially.

  16. Warren Bell Avatar
    Warren Bell

    I think it’s about the damages done by publishing and not the first case
    to make a judgement on the matter. I’ve learned from research that
    there is precedence in Canadian law that also protects cheaters who can
    lose their jobs or spouses if caught by photo exposure. I would guess
    this would not apply to publishing photo’s of a crime.