Right or Wrong?

OK so here's the deal,

Many people think its quite fine to make movies and do as they wish when it comes to using peoples imagery. Lets take a situation I find myself in at the moment. As you can see by my signature I live in Palau. For many years the government here has been very aware of the bad diving practices of many of the dive guides. Complete disregard for the reefs and marine life.......yada yada yada. As such they recently commissioned a Palau based production company to come up with a training video product that is to be used in the newly introduced Tour Guide Training Program.

I have always been an advocate of non intrusive filming techniques when I go about my daily work, especially when dealing with the mega fauna here in Palau, Mantas, Turtles, Sharks, Eagle Rays etc etc. I never chase, I follow. Having spent many years in this profession I pride myself on my ability to be able to understand and approach wildlife in a non obtrusive manner. So much so in fact that I send video stills to dive shops whose Instructors I see blatantly flouting all behavioral ethics of wildlife / diver interaction episodes here. Many of the dive shops know that I don't like to see this kind of thing and as a positive thing some repeat offenders have actually started to change their diving behavior in a positive way. Thats a good thing.

The bad thing here is this. The other day I was in attending the third of three training seminars for the new guide course, out of interest I wanted to see what was to be addressed in the course. The video presentation was in full swing and was talking about photographers and videographer etiquette on the reef especially when it comes to animal interaction. Imagine my horror when I see a sequence of me being used to give a negative message of diver / animal interaction. Now if it was just a sequence of me filming an animal that would be fine. BUT the producers had taken a completely benign piece of footage, an innocent encounter with me and a Green Sea Turtle and they then manipulated it, accelerated its normal speed, to make it look like I was chasing the animal. They also laid over a narrative comment about not chasing the wildlife. So lets see:

Scene 1 - Nice shot of a completely innocent encounter. A camera toting diver glides along next to a very relaxed sea turtle. The turtle is not presenting its shell to the diver in a defensive and evasive display but quite happy to swim, relaxed, with the diver. Narrative "Come to Palau, and witness the beauty first hand" - Audience reaction, "Hey, honey lets go to Palau, it looks amazing".

Scene 2 - Nice shot of a completely innocent encounter. A camera toting diver glides along next to a very relaxed sea turtle. The turtle is not presenting its shell to the diver in a defensive and evasive display but quite happy to swim, relaxed, with the diver - Straight cut to an accelerated continuation of the same clip, the music changes to a sombre tempo and the message "Photographers and video enthusiasts should also respect the marine life and never chase or harass it". Audience reaction, "Jeez hon, look at that asshole with a camera chasing that poor turtle"!

I was horrified. The facts are that they were not to know it was me in the video. Where they got the clip from is anyone's guess. BUT from a legal stand point what are the issues here? They were contracted by the government to produce this piece so should everyone appearing in the video either willingly or not would they have had to sign waivers or a release? The production company benefited financially so I would have thought that releases would have been necessary. The fact that they had to manipulate the images in order to get their message across could also be construed as defamation of character? I think the biggest thing here is that I never gave any consent to be in the film. Granted the average Joe Blow in the street here wouldn't know it to be me because I'm in my wetsuit etc BUT the whole core element of dive guides and boat captains here can identify me in the sequence. This is having a negative impact on my standing in the local dive community, on my personal diving ethics and is, not surprisingly, causing me a lot of concern. The night of the airing I could hear my name resonating, albeit whispered, around the auditorium as the segment was playing.

Anyone have any ideas on what I could do from a legal stand point?

I mentioned my displeasure to the production company and they said "ahhh sorry but the footage shot out on the reef is in the public domain". I tend not to believe this as that would then mean that any underwater archive could be construed as public domain and anyone would be able to use whatever they want free of charge, therefore negating the need for crazy gits like us who film for a living......?

Anyone got any ideas?

Cheers,

Mark.

Mark sorry to hear about that.

Using shots of people in public doing things generally is fine without a release but a shot like that up close and with your face, they should have a release from you.

We just made a Whale Shark training DVD and we used shots of people jumping in and stuff, but you could not really recognise them, just folks doing stuff as a group in public etc. Other scene's with personal close ups on folks we got them to sign a group release.

I think you have a right to demand that shot should not be in there especially the way they have made you look. I would seriously talk to the guys that made it to see if something can be changed.. It's the production companys fault and they need to fix it. Let their customer (government) know as well.

Good Luck.

Mark,

That is a real bummer. The legalities of the situation depend on the country. I am not sure about Palua law, however in the US releases are required in the scenario you described. As a practice, i carry release forms on every trip i am shooting on. I exchange a free copy of the film i am shooting for the participants release signature.

In your situation, they have actually used footage of you in a misleading manner. I would type a formal letter to the production company demanding they remove you from the video. Do some research on Palua law in this domain as well. Threaten legal action if they don't remove it. Or, you can ignore it and chalk one up for you good karma bank:)

Shawn

I would at the very least follow up as the gentlemen above have pointed out. I would be diligent in contacting someone of influence, who can make decisions to change the clip. I would also find out what Palauan law says before I would make a call. They "MAY" be totally in legal compliance depending on the law. If not, I would put their balls in a vice and clamp down until they change the piece. Also, don't let them "pixelate" your face as a fix because everyone already knows it's you.

Be interesting to see what happens and how they react.

Joe

It would seem to me that on such a small island those people who you know and who's opinions you care about will know that the clip is a misleading representation of you.

If the video clip of yourself even though misleading in its representation of you is being used to make divers and dive guides do good ..which is what you want .. what is the problem ?

Hell back in the 80's half the Divemasters and Dive shop oweners in the Cayman islands all starred in the PADI open water video. Ron Kipp was the "awkward customer" who got everything wrong and you really wouldn't want to let on a boat. Ron owned one of the largest and most successfull dive companies on the Island, Bob Soto's. He was a great businessman and yet loved doing his bit, such as in that video where by acting like an idiot on film to millions of people he didn't know he prevented them from acting like idiots.

If you and as you said all the dive companies know your position .. what do you care .. really ? You are doing your bit to help improve Palau and it's dive industry, and probably in a slightly better way than grassing up new dive employees and sending photos of them to their new employees. Why not send the photos to PADI and NAUI and SSI etc and say .. LOOK what you are producing, your new pro members are helping damage the very environment we thrive on for our livelihood.

I would enjoy your 15 mins of fame and smile and be happy that you are helping out on a larger scale than before.

There is no need to bring the principles of the USA such as burden of blame and other such out of control and ridiculous legal standpoints which lead to the moronic world of sueing to the beautiful island of Palau.

What Giles said. chin up and get on with the next one, be the example..... not the blame.

Mark,

I know nothing of Palau law but, even though the majority of folk wouldn't have any idea who that guy 'chasing' the turtle was, the fact is that among the Palau community you are easily identified(tho the producers will say that with mask and regulator in your mouth you are not) and thus your reputation and standing within the professional dive community has been damaged, and thus slandered. In the states this damage could be ameliorated by financial restitution to you within the courts. If you really think you have a case, then get a lawyer. Keep in mind that adjusting and altering footage is done constantly, you have done it yourself whenever you go to slo mo or used color correction or any NLE filters. That is not a crime. If you sold your footage to someone for a production, they have the right to alter it in any way, and they do, to fit their purposes. When reading your post the thought popped into my mind that I would have stood up then and there, probably creating a scene, and yelled that it had been altered to fit the example they were trying to make and, in turn, making you look bad. From my private emails with you, I am confident that you are probably as consientious as they come, however, if the same clip had been altered, and it had been someone else that was made to look bad, would you still object? Probably not, they had a goal to show both good and bad examples and they succeeded, unfortunately at your expense. It comes down to Palua laws and also the additional publicity about the case which might further damage your reputation. To me, it sounds as if it's a damn if you do, damn if you don't situation.

Another thought, rather than listen to the damaging whispers, why not approach those who are talking and address the issue out right. 'Hey guys, overheard you talking about the film, isn't that outrageous how they manipulated that shot and made me look bad in the process?' Avoiding the issue might just confirm they way they might have started to think. You can turn that around.

Keep your head up high, as long as you can look in the mirror and feel okay with yourself, you'll be okay.-Steve B)

Giles - I think there is a massive difference between people willingly taking part in a training video, hamming it up for the camera to get a message across as opposed to being completely misrepresented by editing techniques to get a message to the masses. You ask in your posting "What is the problem"? The problem is that I work as a staunch advocate for non obtrusive diver / wildlife interaction. I push photographers and videographers to stop and realize their approach tactics to animals here in Palau so we don't see people barelling after Mantas, Turtles and other creatures. What matters to me is the fact that this negative image using my unwilling appearance in this instance in a role which is completely the opposite of what I stand for. Even if no one could recognize me in the film, I would still know its me and that, for me, is personally unacceptable. I don't know what your take on this kind of thing is but I'm sure if your unsolicited image appeared on the front cover of a magazine paired with a message that was detrimental to your character or ethical stance would you just let it lie? Would you feel a bit miffed if people tried to defend the producing entity and asked you "What is the problem"?

Steve - I walk around with my head high irrespective of what happens in life. The problem is that I don't think that anyone under any circumstance should be made to feel that against their will images can be used of them to project a message, any message and especially if that message is one that goes completely against the ethics of what the person in question stands for and not have the opportunity to legally request it be changed. I have spoken with a lot of people and will be taking action against the production company. I am simply not prepared to let my name, image or persona get dragged through the mud, period. I did have initial talks with the people in question and mentioned that they as a production entity do have a massive responsibility to the public as a whole. They are entrusted with images of people that should not be diffused to spread negativity without the consent of the persons image they are using. Even though it was not their intention to show me in this light I told them that unless they had actual footage of people chasing creatures, hell I offered to give them some, then they shouldn't feel that it is perfectly OK for them to take an innocent sequence and change that to give their message credibility. That is demonizing the person appearing in the film and should not be ethically allowed unless they have a signed and sworn release.

Yes, I have changed and altered footage for color, sharpness and cropping. I have never shown animals in a bad light, used or manipulated imagery to misrepresent an event or individual. I guess we have stronger ethical values that many others.

I'll let you know the outcome.

Cheers,

Mark.

Hey guys,

Thanks for all the words of support etc. I know points are there to be discussed and that is all this is, discussion. I appreciate the time each of you take from your personal agendas to post your opinions / views.

The red mist is clearing but I'm still not happy with my image being used in that sequence. On a personal level I am just not happy with that. I will be discussing this further with the people in question.

Cheers,

Mark.

Giles, thanks for the PM. Points taken. Still a big pill to swallow mate.

You shouldn't sacrifice your morals and image no matter "how small" a region is as has been suggested. To me that's a liberal response. If your situation is creating personal and professional setbacks and an image you don't want to be stigmatized with, by all means at least do some follow up. I am sure others would think otherwise under the same circumstances.

Your welcome .. I thought you got me the first time .. i just wanted to try and emphasise that i wasn't being an insensitive ass, I just thought you had an opportunity to do some good by being 'the man' in this situation.

I have and would also see red in this situation, but I always like to hear what other people would do like yourself. I had to think about my response to your problem as even though I was sympathetic I thought I saw a bright side of life here. That bright side was that if the defamatory video did good for your cause then in the end the video would do good by you too.

I hope whichever way you go .. you get the result you set out for.

You shouldn't sacrifice your morals and image no matter "how small" a region is as has been suggested. To me that's a liberal response. If your situation is creating personal and professional setbacks and an image you don't want to be stigmatized with, by all means at least do some follow up. I am sure others would think otherwise under the same circumstances.

I am not sacrificing my morals in the slightest. As mentioned I am in discussion with the production entity and am hoping for a positive solution to all of this. I am adamant that footage of me will not be part of their campaign. I just don't want it, period. We are making headway.

Cheers,

Mark.

Not that this is going to help Mark, but if the production company now removes the image, won't that be like closing the barn door after the horse has escaped. Your dive community has already seen it. This is more than the simple embarressment of jumping into the water having forgotten your weightbelt. You've been held up to ridicule and humiliation while clearly innnocent. If this film has been distributed anywhere I do hope there will be an immediate recall. Hang in there, I wish I could say something that actually would help.

Steve B)

I hear what you are saying Steve,

The problem with the barn door scenario is that this video will be used as an ongoing supplement to the training outlines for all future tour / dive guides in Palau. Now whilst the tour guides of the future may not even know who I am it could very well happen that even after I change my wetsuit, even after I change housings, BCD, Mask etc etc that future dive guides sitting out on Blue Corner during their surface interval will be told "hey, see that guy over there, yeah he's the videographer who gets really antsy when he sees bad divers but in our training video there's a sequence of him chasing a turtle"! That's what I am trying to avoid happening.

I will be discussing things with the production entity again today now that the mist has subsided.

Cheers,

Mark.

Mark, I think in your shoes I would also be livid and I would want to do everything I could to get the footage removed, out of principle if nothing else. Stuff like that can niggle at you for a long time if you don't get it sorted, like people using your pics/video without permission.

I think the best thing you can do is to research Palau law on this issue. Knowledge is power. If the production company don't back down voluntarily then I suggest the next step would be a "cease and dessist" letter from a registered lawyer citing the appropriate law, plus perhaps a reference to "defamation of character". Lawyers' letters can cost quite a bit but often do the trick. Producers don't want the hassle of a legal battle.

Hi all,

Just to let you know the production company has issued a public apology, replaced the offending clip and recalled and replaced any DVD's that were in circulation. Through controlled discussions and moderation we were able to work this thing out. They had a few valid points but in the end it came down to the fact that they had not really covered themselves on the legal side of things with regards to releases and filming permissions etc. Can't go into too much details as this is now in the hands of a lawyer and the legal process here in Palau.

There was no animosity on any front and I'm happy to just be out of the limelight especially in the regard as contained in the offending sequence.

Lesson Learned: Carefully asses the situation if this happens to you. Learn the local law with regards to copyright, public domain and personal / model release issues. Take some time in preparing a direct and possible course of action. If that fails at a personal level and you know that you have a case then get a legal notice delivered to them via a lawyer. In this case it cost me $400. A small price to pay for my peace of mind.

Thanks all for the morale support.

Best,

Mark.

Congratulations Mark, it is a shame they did not reimburse you the $400. but I am glad it is settled for you.

steve B)

Congratulations for working it through Mark.

So I've got a related question...

Has anyone been in a situation where their footage was refused by a purchaser because they couldn't supply releases from divers, even though the divers were in scuba gear? Or even been asked for releases from divers in the footage? I've heard some say that releases are required whatever, especially in the USA. And I've heard others say that the mask/reg/hood negate the need for the release, especially at a bit of a distance, because positive ID of the diver is pretty much impossible. Any case history on this issue?

I have contact details for most of the divers in my footage, but I'm wondering whether to add a release to my liveaboard-DVD order forms.

If this should be a new topic then feel free to split it off mods.

Thanks chaps,

Interesting point Nick. I guess a lot of people play the 'numbers game' when it comes to things like this. I think to an extent this is also what the production company in question were also hoping for. Around 70,000 divers visit Palau throughout the course of a year. Many of those are armed with cameras of all guises so its relatively easy to get footage of divers with cameras interacting with wildlife etc. The sad fact of this case for the production company, and myself, is that the diver appearing in the footage happened to be a member of the local dive community and at that also being portrayed as a diver in the process of harassing the wildlife. I just didn't want that I appear to be engaged in an action that is so 100% on the flip side of what I stand for in both my working ethics and as a diver appreciative of underwater life forms. I know it wasn't an attack on me personally but still, I stand for something beyond that. The core element of dive industry personnel here also recognized it to be me and I was more concerned about the impact of that in the local community as opposed to the reaction of someone who may see the film whilst on a short stay in Palau.

How was the company to know it was me? Was it right for them to use footage of anyone and change the situation to get a message across? Even if that person never saw the footage would it still be acceptable on an ethics point to pervert the characteristic of an innocent encounter? These and many other points can be argued until the cows come home. Someone will always find a point of contention to argue what is right and what is wrong in this case. Me? I'm just happy to be out of the product, to have received the apologies and to have found a positive outcome.

With regards to your question Nick I guess as diving becomes more popular there could very well be some credibility to getting divers sign a waiver. Its a true possibility that future programming, especially travel related may need images of divers on a reef etc so it could be worth covering oneself with that eventuality. But what if you're on a live aboard trip and you get that one cantankerous git who won't sign off but has to be in every shot? Its a difficult one. I may start just having releases for the private DVD gigs I do seeing as these concentrate more on the individual and I tend to do a lot closer shots on people's mugs.

To date I have not sold any stock with divers in. My clients seem to want animals over people. Mind you, that won't rule out some of the people I've dived with in the past! Yikes.

Cheers,

Mark.

Nice work and a good ending. The fact that they saw the error of their ways under good intentions is a sign of integrity.

Joe