While trademark and copyright has typically made up most of the discussion of legal issues around online marketing and video for business, many companies today are still completely unaware of another equally important issue – controlling your image and likeness in any video by someone else for whatever purpose . This is known as, the "right of publicity.”
I recently caught up again with intellectual property attorney Mark Rosenberg, a regular speaker at conferences on legal issues with online marketing, to talk about right of publicity legal issues, their consequences for not being followed, and how businesses can best protect themselves from it.
Mark was a featured speaker at the recent Search Engine Strategies San Jose conference on the Brand, Trademark & Reputation Management panel. The following is a transcript of the interview I did with Mark right before his session.
What's the most overlooked legal issue with online video for business?
In the past year, online video for small businesses has exploded. But the problem is that most small business have no idea what the legal issues are for online video. Those issues are typically trademark and copyright issues, and what a lot of small businesses I find are the least aware of – 'right of publicity' issues.
What is "right of publicity?”
Right of publicity is your right to control how your image is used or not used for any purpose. If somebody is going to use your image – your picture, photograph, drawing, or voice – they need to get your consent to do it; and the consent really needs to be in writing. It shouldn't be a handshake or done verbally. It needs to be an actual written consent.
What are the consequences for businesses that don't follow these legal issues?
We know that a trademark and copyright side, you can be sued for infringement; they can be subject to an injunction that they have to take down the video, and suffer financial penalties.
Now for a right of publicity, here's how those same situations can apply: without a written consent, its potentially a ticking time bomb. Just because somebody said they wanted to be in the video at the time the video was made – it could be the owner of the businesses' friend, girlfriend, boyfriend, etc – remember, those things can change. The person who's in the video who didn't give their consent for the right of publicity to be used, can demand that the video be taken down. It can be as simple as once they see the final product, they're just not happy with it. Without the written consent, it becomes a he-said/she-said situation; and there can be a lawsuit. And if there proves to be no consent to use the right of publicity, the business owner may have to take down the video, and also pay significant financial damages to the individual.
Are there are different concerns from doing it on the web versus doing it on television?
Yes and no. A video on the web and a broacast commercial – they're largely the same. But where its different is, on the Web, there is a searchability function; and that brings into trademark issues. Where the trademark is inserted in the video's tags, title, description or keywords – that doesn't exist for broadcast television, where on broadcast TV the viewer just watches what is presented to him or her. When the business owner is using online video, where they don't use the trademarks of the 3rd persons' carefully, they could be subject to trademark infringement.
How would you recommend businesses learn how to protect themselves from right of publicity issues with online video?
There's a lot of information on the Internet. If you're going to be on the Internet, stay on the Internet – do searches. Although for the first time around, it may be worth getting an attorney involved to draft up the agreements, and they're not that expensive. These "right of publicity" agreements are typically just forms of consent – and its well worth the attorney doing this one time for you. Because, going on to the future, you don't have the issues you would otherwise.