Some of you may have seen the recent YouTube clip last week of a woman falling right into a fountain at a mall while texting (now dubbed "The Fountain Lady"); which has millions of views, many duplicates, and with both YouTube and some partner channels making money off the ad revenue around these videos. But is it legal to post any video online of anyone that's considered "newsworthy" and make money off it?
The "Fountain Lady" Threatens Lawsuit Over Video
For some background info on this amusing story: Some young employees working in the Berkshire Mall security department decided it would be funny to post security video footage of a woman falling into a fountain online, and share their own comments while they playback the video multiple times on the actual security camera from their office. (What you see above is copy of the original video by the security mall employees, unedited.)
The video went viral quickly with over 3 million views to date in less than two weeks, and spawned many other YouTube videos with their own humorous commentary and creativity. The mainstream media (including all of the broadcast television shows), then picked up the story and made their own humorous comments. However, the actual identity of the woman falling into the fountain was initially completely unknown to the public.
That all changed when Cathy Cruz Marrero, aka the "The Fountain Lady” (ironically a mall employee of one of the retail stores), decided to "out" herself to the public as the person featured in the video. Even though Ms. Marrero is shown to be walking away after her fall (soaked but unharmed, and clearly unidentifiable), she is now protesting with her new attorney that someone in security should have come to her rescue instead of laughing at her misfortune.
The best coverage I could find on this story comes from ABC News, which reported:
"Cathy Cruz Marrero sees the humor in her public plunge which went viral on YouTube… She admits that she laughed, too. But after being laughed at by millions, she's no longer amused… She is taking issue with the security guards who she believes were the ones laughing on the video and never checked to see if she was okay.”
Apparently not shy about publicizing her identity and her embarrassment, Cathy has appeared with her new lawyer for interviews on the morning network television shows. (Watch this interview on Good Morning America, where the questions that GMA's Anchor George Stephanopoulos asks Cathy are so silly it makeshim come across as a goof, himself.)
There actually is a good lesson here that a lot of us can relate to – that it's easy to be so consumed in our digital devices that we fail to pay attention to our physical surroundings. Ms. Marrero could have taken the opportunity to be good-natured about her misfortune, and even do a public service announcement onsome of the common risks with texting while doing a secondary activity. Instead, she decided to play a rather unconvincing victim who may think she's deserving of a monetary ruling or settlement, along with a public apology from mall security. (The security guard responsible for sharing the video has now been fired.)
Here are some quotes of hers that she appears to act seriously on why her situation is not to be laughed at (by millions):
"I didn't have anything to grab onto."
"The fountain could have been empty.”
"I could have been in the hospital.”
"I could have walked into a bus." (Even her own attorney joining her on GMA looked at her incredulously over saying that.)
So Ms. Marrero, how exactly would someone from mall security be responsible if you chose to get hit by a bus, again? Well her statements from these interviews have generated some additional videos online, including a faux interview and remix I find particularly amusing.
CBS News Online Faux Interview…
Technology 'Fountain Lady" Remix…
3 Things I Have to Say to the "Fountain Lady”…
1) Is it really worth outing yourself for doing something really stupid (granted, a lot of people are guilty of doing it, but it's still stupid) so you can appear on national morning television shows?
2) Why make the argument with your attorney that the mall security employees should have come to your rescue – even though you're shown to have gotten up immediately and walked off, soaked but admittedly unharmed, and not asking anyone for help yourself?
3) You're citing humiliation for the posting of the video online and being laughed at by millions; yet you come on national morning TV shows with your attorney saying you're looking into suing the mall; and you don't see that as proving to be way more embarrassing and humiliating (especially when people see you as lacking any credibility?
Oh yeah, here's another one: Do you think since you featured your husband in the interview on ABC News, that if you were really hurt you could have texted him for some help? (You didn't seem to have lost your smartphone in the fountain.)
YouTube and Partners Making Money Off "Fountain Lady" Video
What I found interesting was many other YouTube channel owners have re-posted the original video with their own degree of editing, creativity and commentary – which feature YouTube's advertisements. The ads not only appear as overlays (which can be turned off), but also as pre-rolls, which viewers are required to watch first if they want to see the video.
It had me curious to know: Can you post a video like this up on YouTube and make ad revenue, be legally protected? I decided to ask that question to intellectual property attorney and friend-of-ReelSEO Mark Rosenberg, whose specialties also include right-of-publicity and right-of-privacy issues. (Note: The following opinions are not to be treated as legal advice. For that we recommend you consult with an attorney!)
Mark,, does the "Fountain Lady" have a case against the mall or anyone else?
While the woman may have a case relating to a dangerous condition in the mall that caused her to fall into the fountain (and I don't mean the self-created dangerous condition of texting and walking), based on what I have seen so far, there is no case for a violation of right of privacy or a right of publicity. However, that could change if the mall sells the video or seeks to profit from it.
When Is Posting a Video Online NOT A Violation of One's Privacy?
Does the leaking of the security video on YouTube constitute a violation of this woman's privacy?
No. There are two reasons for this:
- First, and most importantly, the fall is considered newsworthy. The right of privacy does not apply to newsworthy events. That is why the local news can show the faces of private individuals who are in car accidents, shootings or other newsworthy events.
- Second, the fall took place in public where there are limited rights of privacy. While a mall is technically a privately owned space, the areas of the mall open to the public are public space for right of privacy purposes. This answer could be different if the video was shot in the mall's restroom or in the dressing room of a store in the mall, but that's not the case here.
What if it was another patron inside the shopping mall who happened to video record her in this same act, and posted it online?
Nothing changes from a right of privacy standpoint since the fall would be considered newsworthy.
Right of Publicity Issues – Making Money with Online Video
What exceptions can there be if you now bring money into the equation?
As with the mall, there could be a right of publicity issue if the individual sought to sell the video or otherwise profit from it – such as using it in an advertisement, for example.
The video has been posted to YouTube many times over in many versions, and advertising has been featured along some of those postings – both as click-through overlays and pre-roll video ads. YouTube profits from the advertising, along with the channel partners. Does this fall under fair use, or is it now a right-of-publicity violation?
It depends on how the person is compensated. If it were just ads posted on the webpage that viewers are free to ignore (or click-off), then it would likely not be an issue. Now if viewers are forced to watch a video advertisement prior to viewing the (main) video, then that could be problematic. That could be a right-of-publicity issue, because you're clearly making money from it.
But the mere fact that YouTube is profiting from a newsworthy video is probably not enough. Television stations profit from advertisements that air during broadcasts that show newsworthy videos of private persons.
But like you mentioned, you can always skip over a TV ad, or turn off the TV and turn it on again. It's more difficult to not watch a web video's pre-roll ad if you want to watch the main video. So based on what you're suggesting, are YouTube and other video publishing sites featuring pre-roll video ads, are they potentially liable or not?
Based on this situation (with the "YouTube Fountain Lady”) and what you described above, I would think that YouTube would not be liable for the situation you describe. Further, the Communications Decency Act most likely protects YouTube from liability for state law privacy and publicity claims.
What's Your Opinion – Does She Have a Case?
I have trouble figuring out if it's a right of publicity issue even if you do a pre-roll video ad, whether it's on YouTube or with any ad network. News publishers do it all the time with their videos of stories they consider "newsworthy," and I haven't heard of a right-of-publicity lawsuit against them.
This leaves me with the following questions:
- Can regular YouTube channel account holders be treated with the same publishing and monetization rights as established news publishers?
- Do you think there's a right-of-publicity issue here or not?
- Do you think there's a similar situation where it could be a legal problem?
Feel free to post your comments below!
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