I interview intellectual property and e-commerce attorney David M. Adler, and explores the question: Can you feature someone in a video advertisement simply because you have video footage (or can access video footage) of them using or talking about your product, service, or brand? Also, what is the most legally safe way to feature a video of a public figure for your own business purposes?
For some background on our interview guest, David M. Adler is a partner of Adler & Franczyk, a boutique intellectual property firm focused in 5 basic areas in legal representation: Intellectual Property, Corporate Law, E-Commerce and Internet Law, Entertainment, and Finance. David has also done a number of interviews with ReelSEO covering legal issues with online video marketing. You can watch our full video interview and read the partial transcript below…
Grant Crowell – GC Interactive: We have the example of a billboard ad in Times Square featuring a picture of Barack Obama photographed in a Weatherproof jacket. This is a good example of what I find a lot more people today are doing with online marketing: taking footage of celebrities and using it to imply an endorsement of their own business, for commercial gain. But is this something that is legal to do?
David M. Adler, Adler & Franczyk: It is an interesting issue. The Weatherproof ad with Obama is obviously an advertisement. The question is to whether it's legal. There's a lot of sub-parts to that, and there's not a real clear answer to that. My own perspective, as an intellectual property lawyer, is that I'm a little more conservative. I'd have to say it probably is illegal unless they've gotten the proper releases. And it doesn't sound like they got anybody's release.
Grant: The New York Times newspaper reported that that Weatherproof didn't get any releases from the White House. Yet Weatherproof's CEO came out with a statement saying that they had every right to run the billboard. Is this really a First Amendment issue, as they've claimed it to be?
David: This is not a first amendment issue, from my perspective. The first amendment protects certain kinds of speech. It does not protect commercial speech. There's no first amendment issue to this at all.
Grant: Another issue to this is public figures. The President of the U.S. is the biggest public figure of all. Explain what public figures are and what leniency you may have as opposed to using a private person.
David: A public person is already in the public eye, so they're used to having their picture taken and being talked about. They have ceded a certain amount of privacy by virtue of the role that they have played in society. That is still balanced by the fact that they have certain rights with respect to the commercial use of who they are. I think the Weatherproof ad has really overstepped that boundary. It's not about the fact that President Obama, as a public figure, was doing some newsworthy event. Here, it's clearly being used to promote a product. The fact that he's a public figure simply amplifies that message.
Grant: So a product is being promoted here. The question becomes, what happens when a public figure (say a celebrity) comes into your place of business. What rights do you have (as the business owner) to do coverage of that public figure?
For example, say Brad Pitt and Angelina Jolie come into my ice cream shop and order ice cream there. Do I have the right to video record them on my premises and use that video for commercial gain? What if I just wanted to blog about it on my company website?
David: You're really straddling the line of the law. On one hand, yes they are public figures. So do they have an expectation of privacy in their comings and goings and where they're making purchases? Less so than the ordinary citizen. Is it a newsworthy event? Yes, Brad and Angelina make news wherever they go. The fact that they came to a certain place at a certain time and did something – yes, there is some newsworthiness to that. The question becomes, can you take that event and turn that into your own commercial use?
I think if the event of Brad and Angelina showing up at the ice cream shop gets turned into a quasi-endorsement type of video commercial, you're going to run into problems. You're going to run into right of publicity problems with the two people involved, as well as the commercial speech aspect that you're using this to promote your business; and their association with your business could be seen as some sort of implicit endorsement – which it may or may not be, but to the casual observer, most people aren't capable of making that distinction.
Grant: So from the perspective of someone who happens to be a marketer or publisher of online video, and happens to find a public figure – what would we say are the best ways to go about obtaining permission? It sounds like, 1) Wherever the original video coverage is, you need to get permission from that owner, and 2) Get a release from the public figure's agent or agency?
David: That's a great way to describe what to do. You've got a couple of different rights going on. First, you have the image, or the video, itself. So whoever created that, whoever filmed it – they own the rights to that product. Putting the product aside, you have the content of the product. You have the people who are represented. Typically in a commercial setting, there are actors and actress being featured, and they sign releases. They know that their name and likeness – their persona, if you will – is going to be used for commercial purposes. They've signed away that right. In the case of sort of the casual observer or "man-on-the-street" perspective who is filming people and events, the subjects of that video aren't necessarily aware that there's a commercial purpose with their own persona, and may or may not have had an opportunity to approve that use. But in any event, you absolutely have to get the right to use somebody's public persona – or personal in general – for a commercial purpose.
Grant: Now let's turn that around. You've been a public figure, having been interviewed on Chicago NBC News. I've been interviewed on local television stations, myself. They video record us, they put it on their television show. Which in turn, can be also published on their website or YouTube channel… Do they have a right to do that, especially if they never got a release from you?
David: I think they do have a right, but that right is limited. In the case of the original video, the original interview, if you will: That's called news-gathering. That interview is being done for purposes of reporting the news.
Subsequent uses of that might be commercial. It might run on a website, it might be sold to a 3rd party. But primarily, the nature and character of that content is for news reporting.
I think it would be a different story if that content was turned around and used for a commercial purposes unrelated to the news reporting. For example, if it was used as some sort of endorsement for a product or a service or a person. In other words, if the nature and character of the original use was somehow distorted or used in an unintended manner. The television station that created that interview certainly has the rights to that interview. And no, they didn't get us to sign releases, because we were probably so glad to be on television, we would have done anything anyway. But it certainly does raise what, I wouldn't necessarily call a gray area, but definitely an area of concern. And certainly, if you are somebody who has value to your persona and you're being interviewed, then I think you need to consider that before going into the video interview.
So if you do value your public persona, then before you agree to interviews on video, or being video recorded in general, you should some kind of contract ready to present to whoever is doing the recording for commercial use. Now that might limit the kind of publicity you get, but that's where it's worth consulting with an attorney beforehand if it matters that much to you.