Obtaining a permission to film at a location is standard practice, but does the film company ever carry out due diligence as to whether the person signing the location release actually has legal authority to grant permission to use the property?
Cinema audiences enjoy spotting locations in locally made productions, but what will be their reaction when they see the interiors of a house they own – when they were not aware that the property was being used as a film location. It happens, as plenty of properties are occupied by tenants. A standard location release has the person warranting that they have legal authority to grant the production company access to the property. However that warranty may not protect the production company from the irate property owner.
I have advised a production company when a property owner complained about the use of their house in a film. The production managers obtained a signed location release from the person living in the house and paid the location fee to the ‘occupier’ who agreed to vacate the property so that the film company could shoot interior scenes. Months later, the property owner, while enjoying a night at the movies, recognises their house. Now with the tenant long gone – the property owner may claim that the production company was trespassing on their property or that the use of the interior of the house was an invasion of the right of privacy of the property owner.
The production company ends up with carry the cost of dealing with this claim. Locating and suing the departed tenant would be throwing money away. The production company is left with the choice of spending money of defending the claim or paying an inflated location fee to the property owner to settle the claim. There may be scope for the production company to argue the tenant had either the implied authority or ostensible (apparent) authority to grant permission to use the property; however the property owner may be able to produce a tenancy agreement which prohibited the tenant from sub-letting the property, which is the legal effect of a location agreement.
Apart from the trespass claim the property owner could argue that use of the interior of the house was an invasion of the right of privacy of the property owner. This may be a more speculative argument, but it is happening as this week The Hollywood Reporter (THR Esq. website) reports that a Malibu property owner (their ex-tenant having apparently signed the location release) is asserting an invasion of privacy, with a claim of general damages of at least US$25,000; with the owner also claiming punitive damages and an injunction. THR Esq. is clearly unsympathetic to the claim as the address of the property (19936 Pacific Coast Highway) is published, including a GoogleMap image.
An Australian production company, when facing an invasion of privacy claim may argue that while a court may accept a claim for invasion of ‘personal’ privacy (privacy of personal information), but that the expansion of legal remedies for the protection of privacy does not extend to ‘locational’ privacy. The High Court, in the Victoria Park Racing case of 1937,[1] appeared to reject an action for invasion of ‘locational’ privacy. However the activities of paparazzi have resulted in an expansive understanding of privacy in the law of United Kingdom and Europe. Rights to privacy in Australia are undeveloped, but actions for invasion of ‘personal’ privacy are a growing tread. This trend is identified in the Australian Law Reform Commission report (ALRC Report 108) into the extent to which the Privacy Act 1988 (Cth) and related laws continue to provide an effective framework for the protection of privacy in Australia.
The bottom line is that a film or television production companies are exposed to damages claims from property owners and the potential threat of injuctions to stop the cinema release or TV screenings – where a tenant gives permission to use a location.
No comments:
Post a Comment