The consent issue is even worse with live streaming available on many platforms. It is impossible for people captured in live streams to provide consent until after the content has been broadcast. You can make the argument for fair use in public spaces but once the "host" starts to interact with people, they are forcing people to be participants in their video without consent.

If you film in public places (depending on the country) it's often legal. Still really rude though and should be socially discouraged.

Public spaces like malls require a permit/location release for a commercial shoot on the property, and social media is increasingly commercial. I would be surprised if there were no lawsuits to this effect yet.

I don't think there's much case for a lawsuit. The mall has a right to kick you out for doing so but once it's done there's not much legal recourse in the U.S.

In the US you'd need permission to film the location, and without a release you could be stopped from using the video commercially (social media can count as commercial use if the uploader profits from views)

This can cover public places too, some localities require a permit to film a public place for commercial use.

Some courts have ruled requiring permits and fees for commercial filming constitute 1st amendment violations because they are content-based restrictions on free speech.

Yeah it's definitely questionable... but banning someone using your images commercially feels right to me, especially in the context of this kind of exploitation. It isn't as blatant as creepshots, but it feels abusive.

We can't hold so tightly to free speech that it erodes reasonable individual rights, but what's "reasonable" is often a grey area. Worth debating.

Commercial speech is generally less protected so this seems questionable. Also how is it content based?

I think the issue with getting a release is it shields you from litigation. It doesn't necessarily mean you'd lose the litigation if you didn't get the release, but a business is not going to want to take the risk they'd have litigation hanging over their head preventing the exploitation of the intellectual property asset.

A journalist presumably isn't going to be getting permission to film, they are going to show up to where the news is and film.

I think the intent should matter, but how to capture this in the letter of the law is the question.

The intent is wildly different between actual journalism, and indie film or art project shoot, and behaving obnoxiously towards bystanders in order to directly convert attention into money.

Does TikTok require a business account or something like that in order to be paid? That could be a useful indicator.

Criminal and civil lawsuits are separable.

> Criminal and civil lawsuits are separable.

Of course, you can sue for literally anything, but what damages would they claim?

I suppose if you could get anyone like this woman involved as a witness to testify that they will be less likely to be a patron of the business due to behavior like this you could claim damages that way.

IANAL but similarly if someone steals your bicycle/car/camera while you’re not using it and then brings it back in pristine condition, what damages would you claim?

It’s more like “this is my property, I make it available to public under some conditions, this guy violates that condition”.

That said, the reality is that property owners and adjacent people often benefits from property being featured in a viral video. Unless US adopts similar restrictions as South Korea on photographing strangers, I guess these cases will keep happening.

> IANAL but similarly if someone steals your bicycle/car/camera while you’re not using it and then brings it back in pristine condition, what damages would you claim?

But that's ... a crime. Generally you can't sue for damages after a crime unless you can claim damages.

Fair enough!

It’s not necessarily illegal (criminal) it’s the potential damages for the civil offense (using her likeness without her consent causing untold losses to her).

Stupid hidden camera videos have been viral on YouTube for more than a decade, and YouTube pays out (a lot?) more for views. If no lawyer has milked this angle yet, I highly doubt it’s profitable.

>I thought media releases were required for image rights before video could be commercialized?

Despite using the same terminology as copyright law, the rights photographers have are different and the use of terminology is different.

To use the USA as an example because it's easier, photographers always have the right take photos on public property and they do not need consent to do so, and they also have the right to publish those photos and do not need consent to do so. Traditionally publishing would have meant publishing to print or broadcast media (i.e., news) where commercial activity is inherently implied. Today, publishing would also include posting to a blog, social media, sites like YouTube, etc.

Where photographers usually need consent is using those images commercially, however since they already have the right to publish (and to profit from) images, what commercial use in this context means is to use those images in advertising, to use those images in merchandise, to sell those photos to image libraries (think stock photography websites), etc. This is in contrast to copyright law where there's no publish/commercial distinction and where a licence prohibiting commercial use prohibits selling that work.

Of course none of that applies here, it was filmed on private property where the mall owner likely requires consent before people can take photos, and also because it's Australia which doesn't give blanket permission for people to take and publish photos without consent. However if Australia is anything like the UK the restrictions are that you can't take photos, or publish photos, of people that have an expectation of privacy, although this was filmed in a public place so there's likely no expectation to privacy.

Media releases are really only needed for advertisements. Commercially exploiting a likeness means more than just the video being sold or making money in the US and most western countries. There would need to be an association with a product or brand and the likeness, and it isn’t always clear when this is met

> I like how the creator offered to take the video down, if asked. No apology and no offer to give back the money he made from the video.

I'm sure he would, so long as she gave back the flowers.

She should auction off the flowers.