Legal Video Marketing Question: Publicity Rights Vs. Right of Privacy?

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In our new legal video marketing series, we answer a question submitted by one of our readers, who asks: “Is it legal for an individual to video record patrons in a restaurant and post it on the Internet?” Read his personal story and what our attorney colleague has to say. The answer may surprise you!

I see deaf people – lets video them! (?)

After posting our popular article on “Celebrity usage in online video marketing,” we received the following reader question:

“Is it legal for an individual to video record patrons in a restaurant and post it on the Internet? I was with a group of deaf people and our conversation, in sign language, was uploaded and made available to the public. The person who took the video said he had a right to take the video and upload it because we were in a restaurant. This person says he plans to follow this group of deaf people from restaurant to restaurant, record us and upload it on YouTube. Surely this is not legal but I can’t fine anything definitive on the Web.”

Deaf-people video stalker… REALLY?

Now to me, it sounds rather peculiar that this person is going to follow a single group of deaf people from restaurant-to-restaurant. (What is this guy, a stalker?) It also sounds eerie considering that we didn’t receive any information on whatever the purpose the guy had in mind for video recording this particular group and publishing it on the Web, which makes it sound like there could be some kind of personal agenda involved here. (Plus we didn’t receive a link to the actual video, so it’s impossible to know all the facts, but what evidence may exist.)

That being said, at least hypothetically, this does touch on an important legal issue with online video marketing we’ve covered a lot here: Right of Publicity.

Right of privacy versus right of publicity

Our attorney colleague, David M. Adler of Adler & Franczyk law firm in Chicago, weighs in on the issue:

“The question presents two issues: right of privacy and right of publicity.” Says David. “Without further information, it’s hard to give a definitive answer to the question. But here is some basic guidance…”

Privacy and publicity rights are based on jurisdiction and commercial use

“First, with respect to “right of privacy,” this really isn’t a violation of the subject’s rights.” Says David. “Assuming that they were in a public place (restaurant) then they really have no expectation of privacy. This is no different than being recorded on a store’s security camera But because of the lack of facts, it is hard to say where the subject’s rights are in a right of publicity analysis.

“Now, if the subject was in a jurisdiction that has right of publicity protection, AND if the video was being used to promote a commercial product or service, then there would likely be a right of publicity violation.”

“If, on the other hand, the video is NOT being used in a commercial manner, then it is unlikely that this video violates the subject’s right of publicity.

Grant’s Rant: Use some common sense!

So here’s my “skinny on the vinny” (and by that I mean, “video”) is this: If its important to you to protect your own right of privacy with someone video recording you in a public place, including a restaurant, know what the right of privacy laws are in your jurisdiction. You can also go up to the person to find out what is the purpose of their video recording, ask where the piece is going to be featured, and simply request not to be recorded. You can also request the contact information of that person, if it matters that much to you. And if you simply don’t want them to be doing any recording, you can bring it up with the restaurant or store owner, and tell them what the person is doing and that its bothering you and your guests. Typically they’ll acquiesce since it’s a legitimate request and they want your business.

I still can’t wrap my head around why someone would find it of public interest to record deaf people doing sign language for non-commercial use. Even for commercial use, it sure is a stretch. (Personally, I think it would make a much more interesting video to video record the person who’s stalking deaf-people and post THAT online.)

What’s your legal video marketing question?

Have any legal-related questions with online video marketing, or online video in general? Please comment below on this post with your question and we’ll select one for a post on ReelSEO and a public answer everyone can benefit from. And of course, if you need some good professional legal advice with online video, do consider contacting our legal colleagues at ReelSEO: attorney David M. Adler in Chicago , and attorney Mark J. Rosenberg of Sills, Cummis & Gross in New York!


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