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Comment by crazygringo | Hacker News Reader

But what about the legality?

You don't need people to sign a release form if you're a photojournalist or anything considered to be an editorial source.

But as professional filmmakers know, you absolutely do need a release form if you're producing anything commercial (for sale). Or if you're pushing the boundaries of this like they do when filming Law & Order, to at least put up prominent signs so Manhattan pedestrians know they might wind up on the show if they walk down a particular patch of sidewalk that day.

Isn't there a strong argument to be made that posting on social media without consent is therefore illegal? Because while you're not explicitly selling the video, you and/or the site is monetizing it via ads, which these days is the same thing.

Has this been tested in court?

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> Still, a blanket law against posting strangers without their consent would be draconian and unworkable. There are too many variables, too many circumstances, and simply too many cases.

There’s lots of revenge porn laws now and they seem to be helping to reduce the number of sites willing to post. And revenge porn is usually sent consensually but the victim doesn’t consent to the type of sharing. Obviously the harm is greater, I think, but there is a precedent for how a law could be structured.

It would also be quite easy to set up a “$100 statutory damages if you’re in someone’s video without consent” and watch the AI firms make a zillion dollars on recouping damages.

AFAIK, there is no requirement to gather release forms from someone you happen to film in public. It is simply something done to reduce exposure to possible civil liability on commercial shoots.

Avoiding lawsuits is the point of those forms, not winning them.

> there is no requirement to gather release forms from someone you happen to film in public

Right, the filming is fine -- it's the commercial distribution that's the problem. And I'm assuming those civil suits have existing and succeeded in the past?

So my question is still whether social media ought to be considered commercial distribution, since it's generally ad-supported. I mean, broadcast TV is entirely ad-supported too.

E.g. posting on Mastodon is fine because there are no ads, but posting on Facebook/YouTube is not, because they're monetized with ads.

What I'm saying is I don't think it's a simple as "if you are distributing your film product commercially, you must get permission".

What is established as illegal is if you are filming something like an ad, you need permission to use a likeness, because otherwise one could reasonably take the use of that likeness as implying an endorsement of the product being advertised.

But on the other side of the spectrum, if you are filming a documentary or a news broadcast, you don't need permission to use someone's likeness, as they were there in public at that time and you are allowed to film in public.

Other commercial projects, like Hollywood films, fall somewhere in between. "Ad-supported" is most definitely not the same as "is an actual ad", but sometimes it's not quite so clear-cut (product placements etc).

My point is many of these instances could probably be successfully litigated in court, however it is cheaper to just avoid the litigation altogether by getting permission from people beforehand, even if it is not necessarily illegal to proceed without that permission.

Hmm... can a not for profit use content involving a party without waiver/contract?

I don't think profit is the key issue is it?

Not a lawyer so I'm not sure, just seems like the issue has always been an individuals "right to privacy" and "right of publicity" and whether or not the work is journalistic, for private use, etc.

> there is no requirement to gather release forms from someone you happen to film in public.

It probably depends on where you are. France and Germany for instance have stricter rules on the subject of photographing people in public places.

Yes, sorry -- I'm only talking about a US legal context here.

So I guess we can start seeing lots of lawsuits against people who didn’t take these steps to avoid this risk.

I wonder if class action suits against YouTube, TikTok will make it. And against specific big streamers.

I think it’s reasonable to ask for at least all revenue from a video, if not treble damages as these video producers aren’t even attempting to get consent before commercializing.

I don’t care too much, but anything that puts a damper on social media is good in my book. Kind of like I thought the reason Facebook got a bad rap in 2016 was dumb but was still happy because it harmed Facebook.

I personally DO think it should be illegal for another human’s identifying features to be present in a digital photo without their consent, especially if it is shared online & doubly so if any money is made on it (including advertising)

Unless I’m misunderstanding you you’ve basically just made it illegal to take holiday photos, pictures of popular landmarks, or just generally any photos outside of your house.

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