It depends on the state where filming is taking place. Although the First Amendment protects journalists’ right to gather news, the government also has a legitimate interest in maintaining ballot secrecy, election security, and an orderly voting process. Laws regulating the use of recording devices within polling sites vary widely, so filmmakers should consult with state election authorities to ascertain the permissibility and conditions for recording at or near polling sites. Some states prohibit all recording inside polling stations (e.g., Georgia), while other states prohibit recording both inside and outside polling stations (e.g., Texas). By contrast, some states leave it to the discretion of polling place officials to determine whether and under what conditions recording is acceptable (e.g., California and Virginia). In such jurisdictions, voters can typically use recording devices as long as they adhere to other election laws and avoid harassing or intimidating fellow voters. Filmmakers should consult with election authorities to figure out if and how they can use recording devices at polling sites. Finally, it may be important to consider where the polling site is located, because many sites are stationed on private property or public property such as schools, which may require needing separate permissions to film.

Apart from the permissibility of filming at or near the polling site (see “Can I film at or near a polling site on Election Day?”), filmmakers should think about whether their filming is intruding upon any individuals’ “reasonable expectation of privacy” or whether their film is making false or misleading statements about anyone that could potentially harm their reputation (i.e., defaming them). With regard to invasion of privacy concerns, this is generally a high bar when filming in public, since a reasonable expectation of privacy rarely exists in public. Context matters a lot, however, and voting centers can sometimes be considered a special setting where voters can reasonably expect to be left alone as they cast their ballot. To avoid any invasion of privacy claims, filmmakers should provide some form of notice to make people aware that they may be recorded and secure signed appearance release forms from anyone who appears in footage, especially if they are identifiable and a reasonable expectation privacy could be expected in the setting they were filmed. With regard to defamation, filmmakers should also be aware of whether their film is communicating any false or misleading statements about any private or public figures that could potentially harm their reputations. Depending on the circumstances, the filmmaker’s intent to cause any harm may or may not matter.

Generally, campaign events are privately funded by political campaigns or private organizations and may be considered private events, particularly if the event occurs on private property. As a result, campaigns may exercise control who may (or may not) access these events, including filmmakers and journalists. Although journalists are typically allowed in to cover such events, campaigns may reserve the right to restrict access. To understand the extent to which filming is allowed at a campaign event on private property, filmmakers should contact the campaign and/or find the campaign’s event rules. If the political demonstration or rally is in a public space, however, you likely have a right to film in that space. Nonetheless, you should familiarize yourself with the rules and regulations regarding filming in public spaces in the area (which can often be found on local government websites), because a permit may be required.

If your footage contains music that was played at a political event, you must be aware of potential copyright issues, as using copyrighted music in your footage without permission could result in a copyright infringement claim by the copyright holder of the music. This is true even if the music is incidental to the overall purpose of using the footage. Crucially, an artist’s grant of permission to a political campaign to use music at its event has no bearing on your right as a filmmaker to use the music in your film. Depending on the circumstances, you may be able to get away with a limited use of music in your film under the doctrine of “fair use,” which is a complex determination and requires a full consideration of all the facts and relevant factors, such as the purpose of the use, the nature of the original work, the amount used, and effect on the market for the original work. Alternatively, you may need to obtain permission from the copyright holder directly, which could entail paying a fee. If you are unsure about the legality of using copyrighted music in your footage, please feel free to contact the Filmmakers Legal Clinic or consult a lawyer
who specializes in copyright law.

It is critical that filmmakers pay to a number of pertinent legal issues before, during, and after filming political demonstrations and rallies. In particular, filmmakers should pay attention to the rules of the space they are filming in, whether their filming is invading anyone’s “reasonable expectation of privacy,” whether their film depicts anyone in a false or defamatory light, and whether their footage contains anything that could be regarded as works of art owned by another individual or organization, such as drawings, murals, photographs, or music. If you feel like you have questions or concerns about any of these issues, please feel free to contact the Filmmakers Legal Clinic.

Political demonstrations and protests in private spaces are typically considered private events, or at least are subject to the rights of the property owner. As a result, the individuals in control of the property generally have the power to control who may (or may not) access and record these events, including filmmakers and journalists. To understand the extent to which filming is allowed at a political demonstration or rally in a private space, filmmakers should contact the event organizer or find the event’s rules. By contrast, if the political demonstration or rally is in a public space, you likely have a right to film in that space. Nonetheless, you should familiarize yourself with the rules and regulations regarding filming in public spaces in the area (which can often be found on local government websites), because a permit may be required.

If the event is on private property, event organizers (and their security personnel, by extension) likely have the right to restrict filming at the event. Depending on the circumstances, however, you may be able to negotiate with the organizers or security personnel. For example, you could offer to film from a designated area or for a certain period of time. To this end, you may want to ask why they do not want you to film, which could reveal potential solutions that would allow you to continue filming. By contrast, if the event is held in a public space, such as a park, you typically have a right to film in that space. Nonetheless, filmmakers and journalists may still encounter limitations or restrictions imposed by law enforcement or local regulations for public safety or security reasons. For instance, although the First Amendment generally protects filming and recording of government officials engaged in their duties in a public space (including police officers performing their responsibilities during a political demonstration or protest), courts have held that the right to record may be subject to reasonable “time, place, and manner” restrictions. When recording political demonstrations and protests, filmmakers can increase their chances of success and reduce their risk of interference from police by obtaining press credentials, identifying themselves as press, not interfering with law enforcement, and recording from a safe distance, if possible.

When depicting members of the general public in a film, filmmakers should be mindful of three legal risks. (Note: This list of not exhaustive.). First, pay attention to whether your filming is unreasonably invading any individuals’ privacy. Although privacy laws and legal standards often vary by jurisdiction, filmmakers can subject to themselves to liability by, for example, physically intruding into an individual’s private space; disclosing private, intimate or embarrassing information about an individual that is not of legitimate public concern; portraying an individual in a false or distorted light; or exploiting an individual’s name, likeness, or identity without consent. Second, be aware of whether your film (or any characters in your film) is communicating any false or misleading statements about any private or public figures that could potentially harm their reputations, as this could lead to claims of defamation. Crucially, just because someone else makes a defamatory statement in a film does not mean that the filmmaker cannot also get in trouble for republishing the statement. Third, be careful not to use any copyrighted materials—such as music, drawings, posters, photographs, and news broadcasts—without permission from the copyright owner, because unauthorized use of copyrighted material could constitute copyright infringement. It is important to note that the determination of whether any of these legal risks are present in your film can be complex and will often vary depending on the specific circumstances of the case. If you feel like you have questions or concerns about any of these issues, please feel free to contact the Filmmakers Legal Clinic.

Drones are becoming an increasingly common and popular tool used by filmmakers. Nonetheless, the use of drones by civilians is heavily regulated by the Federal Aviation Administration (FAA), so it is important to be aware of the legal restrictions and risks involved with flying drones, particularly in areas that are heavily-populated. In the United States, for instance, flying drones over human beings is generally forbidden by FAA regulations unless the operator of the drone meets a narrow set of exceptions or has obtained a waiver from the regulation (see 14 C.F.R. § 107.39). Flying drones over private property without authorization also can give rise to trespassing and privacy concerns. For these reasons, filmmakers wanting to use drone footage of political demonstrations and protests in their films may want to consider licensing or commissioning aerial videography from a professional drone operator that is allowed to fly over crowds.

The short answer is: it depends. In the United States, copyright protection exists automatically upon the creation of an original work fixed in a tangible medium of expression. Crucially, registration is not required for a work to be copyrighted. Accordingly, signs, slogans, artwork, or music independently created by individuals and displayed or performed at protests and demonstrations are generally protected by copyright. For this reason, filmmakers should be somewhat cautious when incorporating footage of such works into their films, as the use of such copyrighted material could potentially be considered a “derivative work” of the original material, which is something that the copyright holder typically has the sole right to produce. Nonetheless, filmmakers may be able to use footage of copyrighted materials if: (i) they have permission to use the materials; or (ii) the use falls within the scope of the doctrine of “fair use.” Whether the doctrine of fair use is satisfied is complex and requires a full consideration of all the facts and relevant factors, such as the purpose of the use, the nature of the original work, the amount used, and effect on the market for the original work. If you have questions or concerns about using footage of political signs, slogans, artwork, or music in your film, please feel free to contact the Filmmakers Legal Clinic.

Images and videos on social media are protected by copyright, so filmmakers should be somewhat cautious when incorporating images or videos from social media into their films, as the unauthorized use of such copyrighted material could be considered copyright infringement. Filmmakers may be able to use images or videos from social media, however, if: (i) they have permission from the copyright holder to use the materials; or (ii) the use falls within the scope of the doctrine of “fair use,” which is a complex determination and requires a full consideration ofall the facts and relevant factors, such as the purpose of the use, the nature of the original work, the amount used, and effect on the market for the original work. It is important to note, however, that due to prolific “re-sharing” of content on social media, a social media account that appears to own the content may not necessarily be the true owner of the copyright. Accordingly, if you are seeking permission to use certain copyrighted materials, be careful to seek permission from the correct individual or organization.

Like journalists, filmmakers covering political demonstrations and protests possess identical rights to other members of the public when it comes to observing, photographing, and recording events in public spaces. Under the First Amendment, filmmakers and journalists are safeguarded in their essential freedoms of speech, press, and assembly. Law enforcement generally cannot obstruct filmmakers and journalists from covering protests as long as they are situated where the public is permitted and are not disrupting law enforcement activities. Nevertheless, filmmakers and journalists may be subject to reasonable “time, place, and manner” restrictions, depending on the circumstances, and may also face arrest if there is probable cause to believe they have violated the law while filming, such as trespassing or disregarding police orders to disperse from an area.

The right to record police officers and others during protests and at other times in public spaces is generally protected by the First Amendment. Police officers may not confiscate or demand to view your photographs or video footage without a warrant, nor may they delete your data. Nevertheless, police officers do retain certain powers in connection with their official responsibilities, particularly when there is evidence to suggest a crime has been committed. For example, police are allowed to briefly detain you if they possess have a “reasonable suspicion” that you were involved in a criminal activity. Police officers may also conduct a “frisk” if they have a “reasonable belief” you are armed and dangerous. Furthermore, police have the authority to make an arrest if there is “probable cause” a crime has been committed. Although a search typically requires a court-issued warrant, law enforcement may be able to search and confiscate certain personal belongings in the immediate vicinity during the course of an arrest without a warrant. Crucially, according to the Privacy Protection Act of 1980, the government cannot search or seize materials intended for public dissemination by journalists or filmmakers, such as cell phones and cameras, unless criminal activity is involved, and filming in public spaces is generally never a criminal activity in itself. For this reason, filmmakers should be very careful not to break any laws in the course of filming, such as trespassing or disregarding police orders to disperse from an area.