Q: What are the rules regarding wiretapping in documentaries?
When people think of wiretapping, they imagine federal agents sitting in an unmarked van, surreptitiously listening to phone calls made by gangsters. But you actually see it all the time in documentaries and reality TV, when an on-air talent makes a phone call to another party.
In my producing days, we recorded phone calls for a variety of reasons: Maybe a call made more sense to the narrative than an on-camera meeting; maybe the person being called didn’t want to show their face on camera; maybe the person lived in another state and we didn’t have the budget to fly to that location. I once produced a show where we filmed a phone call because the party we wanted to interview was hostile to our production, had a history of violent crimes, and was an accomplished bow hunter. Would it have been great to get him on screen? Sure, but it just wasn’t worth the risk to our cast and crew.
So what are your obligations if you’re producing a show or movie and want to make an on-air phone call? First, you need to make a good faith attempt to get a personal depiction release from anyone whose voice you want to use—yes, even if you’re only going to use their voice, and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the quickest and easiest way to protect yourself legally.
But what if you can’t get one, or decide that trying would be futile (like we did with the aforementioned bow hunter)?
You determine if you are filming in a one- or two-party consent state. In one-party consent states, only one of the parties is required to consent to being wiretapped, meaning they know you’re filming and permit you to film the call. Oftentimes the consenting party will be your on-air talent. Conversely, in a two-party consent state, both phone call participants must consent to being filmed. Without the consent of both sides to the conversation, you could be liable for civil and possibly criminal penalties depending on the state.
California, where most American film and television productions take place, is a two-party consent state. A violation of California’s communication law (Cal. Pen. Code §§ 631- 632) carries fines ranging from $2,500 to $10,000 and may also include a year of jail time. In comparison, New York, America’s other production hub, is a one-party consent state and requires only one party to OK being filmed making the call.
That said, even if your are physically present in a one-party consent state, if you have to make a phone call across state lines, it falls into federal jurisdiction, meaning that the stricter state’s law may apply. All told, 12 states currently require the consent of all parties if you intend to record a phone call.
If you want to see what your obligations are for a given state, the Reporters Committee For Freedom of the Press is a great resource for reality TV and documentary producers. I used this site all the time in my production days, and I like to think it kept me and my colleagues out of trouble.
I want to give a word of caution, though: If you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound during post-production. The criminal and civil penalties are not based on whether the other side’s voice is heard; they’re based on whether you violated consent laws even though you knew or should have known about them. The last thing you need is a judgment against you for several thousand dollars, all for a taped phone call you can’t even use.
At the end of the day, wiretapping isn’t an issue you should take lightly. Getting a release form is the best way to avoid trouble, but failing that, knowing what kind of consent you are required to get can help you avoid a big problem that may sideline a less prepared producer. MM
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Gregory R. Kanaan, Esq. is a Boston-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most. The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.
Photograph by Dana Rothstein, courtesy of Dreamstime.