Just because YouTube isn’t legally liable for a “bad” video on its website doesn’t mean that you’re off the hook for posting it! In our “Is That Legal?” video series, attorney Evan Brown explains why featuring other adults or kids in your online video without their permission, and lying about your expressed intentions, can get you into serious legal trouble.

Sued For Emotional Distress From A Fake Video?

There certainly is an audience online that thinks it’s both creative and funny to use YouTube and other online video sites for showing pranks on unsuspecting individuals and groups. Sometimes these guys think they’re actually safe by not actually doing the prank in real-life, but editing the video just to make it appear so when published online – either to fool others, or just let everybody enjoy the joke, perhaps.

Well, here is a video question submitted by controversial YouTube performer Evan Emory, joined by his uncle. For those of you who haven’t followed our previous coverage, Evan here refers to himself here as “the first person in the world to go to jail for the posting of a YouTube video.”

Here’s his story for the umpteenth (and I promise, final) time: Evan had made a video of a musical performance he gave at an elementary school classroom full of 1st graders, done with the permission of the school and the teacher. Evan had admitted afterwards that he had lied about his intentions for doing the video recording so he could away with what he had planned all along.

He took the original video footage of the kids and overlayed it with himself singing and acting out an extremely sexually explicit song, done later on in that same classroom (when it was actually empty and without anyone else’s knowledge.) The joke Evan had planned was to edit the footage shot at two separate times, and make it seem like he was performing not the “safe” song to the students, but the explicit song. Evan then took the reaction of the kids from the “safe” performance, and edited the video to make it seem like the kids were reacting to his explicit version.

Evan edited and published the video up on his own YouTube channel. He said it was intended to just be for an audience of his peers, not for any children, and he swears not for him to try and get widespread media attention for. However, Evan did actually show that video at a public local entertainment venue where he had performed at. He also mentioned that the same video may have been submitted to the Tosh.0 website, and possibly featured publicly on that same site. (Evan denies submitting it to the Tosh.0 website himself.)

So when word of Evan’s controversial video broke out to the local media, Evan gave an interview to a local television station. Following that interview, Evan was subsequently arrested and jailed, and charged (rather inappropriately) with the intention to distribute “child pornography.” He agreed with his attorney to a plea deal for a lesser felony conviction.

Granted, what Evan did was an entirely simulated event. Evan never had actually sang the “dirty” song to the students, or done anything even remotely of an “adult” nature in the children’s presence. In fact, he included a disclaimer at the beginning of the video even saying the whole thing was a fake.

“I never intended to hurt anybody. All I wanted to do was make everyone laugh.” Said Evan.

But Evan did admit immediately afterwards that he did a very stupid thing. For that reason, even though he said in an interview with me that he didn’t feel like he was a “criminal,” he had his defense attorney cut a deal with the local prosecutor’s office to plead guilty to a lesser felony charge. Since then he has given a public apology, done his jail time (with time off for good behavior), has followed all of his probation requirements, and worked closely with his local alternative dispute resolution center to attempt to make amends with the parents.

However, that hasn’t made the parents and a good portion of the community any less outraged with Evan. Some of the parents (who’s children were involved in the recording) have stated that they were considering suing Evan Emory for, as Evan’s uncle puts it, “damages due to duress and distress caused by Evan’s video.”

“My question for you is, do have a legal basis for such action?” Asks Evan’s uncle in this submitted video to us here.

In other words, can you still get sued for not what you actually did in your video recording that involves other people; but how you edited it to make it appear like there is some form of “socially irresponsible” activity going on, that you feature others without their true understanding or consent?

For the answer to that question, I once again have enlisted the expertise attorney Evan Brown, who earlier commented about being able to sue YouTube for emotional distress. Below is a transcript of his answer.

Attorney Evan Brown On Staged Video Pranks

Important Note: The following is for general information purposes only, and not to be construed as, or substituted for, professional legal advice. For that we strongly recommend you consult with a local attorney!

Can someone who pulls an online video prank, like Evan Emory did, be sued in civil court, and on what grounds?

We’ve talked about whether YouTube can be sued for what has gone on here. It’s an entirely different question as to whether Evan can be sued. (Evan Emory, that is, not me.) Whether Evan Emory can be sued for upload this, uploading this video and sharing it by YouTube.

Like I said, this is an entirely different situation, different kind of question. YES, indeed, Evan could be sued for this and he would not have available to him such a strong defense as YouTube would (for saying hey, we’re immune from liability for this because we’re a service provider). Just because harmful content is uploaded to the Internet does NOT mean that the person, the individual who created and shared that content, is not responsible for that. I know that’s a double-negative, but what I’m really saying is you still run the risk of liability, even though you’re putting it through the Web. Nothing is going to protect you just because it was put onto the Internet.

So if indeed what Evan did rises to the level of having inflicted emotional distress, or misappropriated the kids’ right of publicity in there; if indeed it does rise to that level, Evan could be sued and, in fact, that lawsuit could be successful. Now it’s going to depend on a lot of things that we don’t know about right here, just sitting here and talking about the case, that would all play out as the case progresses.

So what is “right of publicity?”

The right of publicity is this interesting property right that each of us has. It’s a form of intellectual property, and we don’t think of it a lot. And by the way, this varies from state-to-state, unlike copyright law (which is a federal law), the right of publicity arises under state law. So it depends as to where you are as to what your particular rights are. But in general, each of us has the right to determine how our name, our image, or our persona is used in connection with a commercial purpose.

So that’s why somebody can’t just take a photo of you without your permission and use it on a billboard to market some kind of product. Nike, for example, couldn’t use your picture unless it gets your permission; and you’d probably demand to be paid for that. That’s why that doesn’t happen.

So one of the questions in the Evan Emory case here is whether or not Evan might be responsible for misappropriating the kids’ right of publicity in connection with making this video. This is one of those legal questions that doesn’t have a clear answer; and the use of social media makes it really interesting here, because of the way people use social media for what we might call “commercial purposes;” or we might say that they’re not commercial at all.

But the argument could be made that this video was made to go online to attract hundreds of thousands of views, of hits, thereby promoting the overall enterprise that Evan Emory is involved in. Does that make it “commercial?” Well there is no real answer to that. That is one of those issues that the law isn’t really settled on here. There are arguments that you could make on both sides. But the more people that are doing things like this, the more likely that question is going to have to be answered by the courts.

What advice would you give to somebody who’s thinking to do something like Evan did?

If you mean as an attorney, what advice do I have to someone who’s wanting to do something crazy, like what Evan Emory has done on YouTube? First of all, I’m not giving legal advice here. I’m just giving information. So this would just be an observation of some things that you might think about when you’re doing these things. Now you may expect me to be sitting here as an attorney and saying, “Oh, don’t do this, don’t try to challenge any kind of norm. Just follow the rules and make sure you talk to a lawyer before you do all of this stuff.” Yeah, that’s fine if you want to do all of that, and you want to be kind of a boring person, and not really push the envelope with anything you do in life and just stay at home and watch TV, and not have any friends or whatever (laughs).

My encouragement would be to, first of all, understand the community that you’re dealing with. Know where you are. Know where you are. Know what the norms are. By that, I mean, what do people expect of you to act as a responsible citizen? What’s acceptable and what’s not acceptable? Be aware of that because your community standards are going to play a lot, a big role, into how much trouble you might get into.

The second thing along those lines would be, do your best to understand what the law says. Understand that the application of the law is never black-and-white. There are always gray areas that you can operate in. You can be expressive, you can be a creative person. Challenge the norms. Now, don’t do anything that’s obviously stupid, or that’s obviously going to get you arrested or put in jail. But don’t let the fear of the weight of the judicial system coming down on you to totally silence you, and not do anything at all. Just be aware of what it is, try to understand as best as you can beforehand what the consequences are, and go forward and be creative.

About Evan Brown, Attorney

Evan Brown is a technology and intellectual property attorney in Chicago, with his practice focusing heavily on Internet Law. Evan regular blogs about law and technology issues, and is a perennial guest on the This Week in Law show, which is available via audio podcast and video. You can follow Evan Brown on twitter @internetcases, and on Facebook.