Tuesday, September 06, 2011

Can failure to leave be contractually binding?

I'm used to thinking of this for websites, but this sign from the filming of the Avengers movie says that by remaining in the area you consent to any use of your likeness etc. in the film and promotions for the film. Setting aside that it doesn't conform with the written consent requirements for, say, NY's right of publicity, if this is a public space, is there any way in which this is actually enforceable? There should be no valid cause of action for presence in the film itself, and because of that no valid cause of action for the ads, but with today's metastasized right of publicity I have to wonder.


  1. We had more laconic versions of this sign on campus all the time at UCLA a quarter-century ago.

  2. There's really no other solution. When you're filming crowds there's no practical way to get a release from everyone - think about trying to do that on a trade show floor. The sign at least (1) keeps out people who don't want to be filmed; (2) might reduce the likelihood that someone will complain; and (3) might work in some jurisdictions. What other advice could you have given to the company filming to reduce its exposure more?

  3. Pamela, I find (3) deeply troubling--as I said, I don't think there should be any underlying right, and the overexpansiveness of publicity rights claims is clearly driving the attempt to get a release through inaction. But staying really shouldn't manifest consent, which as I recall was a classic hypo in contracts class; I worry that the idea that there is realistic "consent" in such circumstances can be leveraged to do much more damage to real interests. And I think Eric is right, above, to say that this is a bleedthrough of hypothetical consent on webpages to the real world.

    As for advice, I'd say (1) don't film in a jurisdiction with a ridiculous right of publicity, (2) if you have to do so, do so in a space you control, not a public place, (3) recognize that a hit film is going to get sued for something, the way Spiderman was for including buildings in Times Square in the film.

  4. Whoops, I guess Eric didn't say this above--I may have mixed up Facebook comments with blog comments.

  5. This is basically the 'clickthrough' contracts.

    For these to be valid (and enforceable) I've always been taught that these elements need to be true:
    1. The other party needs to be told what action they are taking that is deemed to be consent to the contract.
    2. They need to be told what the contract is, or be given an opportunity to review the contract. They don't have to actually review it - just be told where it is if they choose to review it.
    3. They have to be told what action they can take to NOT consent, and that action has to be free. (ie: "If you don't consent, fill out this form and a $20 fee" won't be good enough.) But 'If you don't consent, go via another road' is.

    This advice was based on Nimmer's article on the subject - with those elements he was pretty sure that the contract was enforceable.

    I'm curious what would happen if they tried to use the contract for something that the user may not have had any reason to believe the contract covered?

    For example - imagine this was for the film 'The Woodsman'. That film had a paedophile character who was, by definition, sexually attracted to children.

    If a parent had taken their 6 year old daughter through that area - could they then complain when their child was featured as a character being stalked by the paedophile character, as he describes via voice over what he would like to do to the child?

    After all - the parent had consented. They were told the name of the film and they still agreed.

    OK - let's skip the child exploitation aspect - what if 'Group Hug' was porn? Could the same apply to any man or woman who was in shot? Could, hypothetically, the porn producer start making sex dolls based on the people in view ... after all everyone in the area has irrevocably consented to their likeness being used in **any** form for exploitation. They can't complain about it when the contract itself says that they will be exploited!!

    Even worse - it is common for the 'tentative title' to be chosen to something that is deliberately misleading. That's for a few reasons - if you are providing locations for 'Oceans 14' then you know it has a massive budget and will adjust your quote accordingly. But it may because the show (or production company) has a terrible reputation in the community that they want to film. Religious extremists had a habit of doing this with scientists - the scientists are told it is for a science show .. with the truth deliberately hidden from them.

    It also happens in children's beauty pageants - certain shows and production companies have terrible reputations so the filming is done under another name.

  6. Interesting questions all, and the recent case in which Toyota's explicit terms and conditions were held invalid for not disclosing the nature of the contract is clearly relevant. I do think that failing to leave a public place after seeing the notice is not valid consent, though failing to leave a private place might be. If I put up a sign facing the public sidewalk that says "if you enjoy my flowers you owe me $20" and you stand on the sidewalk and contemplate the beauty of my flowers, but do not leave the public space, I don't think there is any "contract." Mark Lemley uses this example, I think.

  7. I'm not sure why you find my (3) "deeply troubling"; it appears to be consistent with the Restatement. I have limited access to research materials, but, based on Bosley v. Wildwett.com it looks like under the Restatement consent can be from conduct or inaction. The sign was no defense in Bosley because the Florida statute required express consent, but I think it would have been ok under the Restatement:

    "Assuming arguendo that the more lenient Florida standard for consent applies, Defendants, at the very least, must establish explicit oral consent from the plaintiff. See FLA. STAT. § 540.08. Tacit consent is not sufficient as a matter of law. The face of the statute specifically requires “ express written or oral consent.” FLA. STAT. § 540.08(1) (emphasis added). See, Restatement (Third) of Unfair Competition, § 46, cmt. f (1995) (“ In the absence of an applicable statute requiring consent in writing, consent can also be implied from conduct or inaction reasonably interpreted as manifesting consent.”)" Bosley v. Wildwett.com 310 F. Supp. 2d 914, 931 (N.D.Ohio 2004). If you can establish that the plaintiff saw the sign (maybe that's the hardest problem with the public place), why wouldn't that be consent?

    Your advice is also somewhat impractical. If my plot requires an outside scene at a recognizable public place, I can't hardly change the location. I have no choice but to post the sign and take the risk. And to the extent I'm going to get sued for something anyway, I don't think that means I shouldn't at least try to minimize my risk.

  8. My contention is that, to the extent the right of publicity has expanded so far that we need this kind of implicit consent defense, the right of publicity itself is the problem. The Restatement may say that implicit consent is fine, but general principles of contract should not, in my opinion, allow formation of a valid contract when X says to Y "if you stay in this public place you agree to give me something of value." That's true whether the something of value is $20 or my right of publicity. In other words, if the sign is good as to the right of publicity, why isn't it good as to other transfers of rights?

    As to impracticality, that's the problem with the current right of publicity. And this "fix," precisely to the extent that it decreases the risks to the company, increases the harm to popular understanding of the law and of one's right to exist in public space. Movie companies should (and largely do, I think) oppose expansive rights of publicity. I said the system is broken; you suggested that's troubling for movie companies, and I agree, but I don't think this is a good fix.

  9. I guess the difference is that I don't have the luxury of having an opinion on what could or should be, I have to mitigate my client's risk in today's legal climate. And the sign doesn't mean I can't also argue the plaintiff hasn't stated a claim.

  10. There are a lot of ways to be a working lawyer; I understand what you're saying, but I still think the sign sends a bad message for little if any legal effect, and potential backfire for content creators if other people start pulling the same trick ("by filming here you agree you owe me $20,000").

  11. Another obvious question - since minors can't agree to contracts .. doesn't that mean that this process gives zero protection against anyone who happens to be in shot who is under 18?

    BTW - I've used the "by filming here you agree you owe me $20,000" trick before with parking spaces. It works. Basically we had reserved parking spaces for our company but others kept using them - there is nothing you can really do apart from complain. A simple sign 'These parking spaces are owned by XYZ and are free for employees of XYZ. Others can use the spaces for $40 per hour - number plates are logged for billing purposes. See reception to pay. Unpaid bills are pursued via (ABC Debt Collector). By parking here you agree to these terms'

    That solved the problem of neighboring companies using the parking spaces instantly.