QUESTION

We filmed people on the street talking during COVID for ad. Do we still need to blur out faces if we didn't get consent, even if they wore masks?

Asked on Feb 05th, 2021 on Communications and Media - New York
More details to this question:
The people spoke with our actor, who demonstrated our product. There were several people where we were not able to get them to sign the waiver and some did and others did not verbally consent (consent was sometimes not recorded). Can we still use footage of them talking since their masks covered the lower part of their face? If not, is blurring out their faces enough?
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1 ANSWER

Trademarks Attorney serving New York, NY
3 Awards
This is a question related to what is called the right of publicity. The right of publicity is the right of a person to control how he or she is portrayed. The Right of Publicity protects a person's right in his or her name and likeness, this is, name, voice, signature, photograph, and likeness. The right of publicity also states that if a person's special features or characteristics are used for any purpose, that person is entitled to decide how are those characteristics use, if they can be used, and to receive monetary compensation.  The right of publicity is a matter of state law. However, in general terms, no individual or entity is allowed to use the image o characteristic features of another unless consent has been confirmed in writing. That means, that if you record a person if that person can establish that his specific characteristics are identified, this person may be entitled to compensation. Additionally, if a person is recorded and the record is published without authorization, this conduct could be categorized as an unlawful invasion of privacy. Finally, only in specific circumstances, a person or an individual is allowed to use another's features without authorization, these called "newsworthiness". 
Answered on Feb 07th, 2021 at 12:16 PM

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