What if your idea for a marketing video involved creating a fictional character, telling fictitious stories, about real people? Could you be opening yourself up to a lawsuit, even if the purpose is to be entertaining and humorous? We had one of our own followers of ReelSEO ask us just that, and we got his video question answered by one of our own attorney colleagues, which should prove to be educational for everyone. Watch, read, and learn!
DISCLAIMER: The following information is presented for general information purposes only, and should not be construed as, or substituted for, professional legal advice. For that, we strongly recommend you consult with an attorney!
"Is That Legal?" Video and the Law Series Debut
Today we introduce a new series called, "Is That Legal?" This is where you, our audience members, submit your legal video question in the form of a video, along with an actual video example of what your question is about. Then we pair up your question with an attorney specializing in your subject material, and feature his or her own response in a video as well.
Is Doing Video Marketing with a Fictitious Story Featuring Real Celebrities Legal?
Our first question to start off the series comes from Matt Borkowski with Shop17Printers.com. Matt explained to me that his company would be rolling out a social video marketing campaign, with video as the primary component of the success of the campaign.
In their video they plan to introduce a fictitious character, who will first be telling a fictitious story about his own humorous experience with a celebrity. Then the video will end with them teaching about some marketing subject.
Mark's legal video question is: If they introduce and name these celebrities in these clearly fictitious stories, could they be opening themselves up to a lawsuit?
Understanding "Right of Publicity" in Online Video Marketing
I presented a few questions of my own on Matt's topic to attorney and friend-of-ReelSEO Mark J. Rosenberg. Below is our interview with his response.
Grant: So Mark, do you see any legal problems with what this gentleman is doing?
Mark: Yes I do. What he intends to do brings into play a legal doctrine called the "right of publicity," which is the ability of an individual to control how his or her name, image, or likeness is used. Here, the individual wants to use the name in an advertisement. And when you use the name of other people in advertising, in an advertisement context, the rights to do so are very constrained. So, is this problematic? Absolutely.
Watch this interview I did with Mark Rosenberg back in 2009, which is a good overview of what "right of publicity" is and it's legal importance with online video in business today.
The Exception to "Right of Publicity" Restrictions in Online Video Marketing
Grant: Can you give an example of how it could be an example of "fair use."
Mark: Now interestingly, if he were going to do it in a comedy routine, he probably would be able to get away with it, because it's not in an advertising context. But because it's in an advertising context, it's problematic.
Grant: Is there any way you can do advertising with a celebrity or someone else you're portraying in your Web video?
The only way you could do it in an advertising context if it was advertising something like a movie, and you're taking clips of a guy who's portraying a celebrity. For example, the producers behind "The Social Network" could take any video clips of Jesse Eisenberg, the guy who portray Facebook founder, Mark Zuckerberg. Now that's OK because the advertisement is related to the movie. But with Matt, his is an advertisement for a product or service, and that's just too problematic.
Typically, an individual can control how someone uses his or her name and likeness. However, for artistic reasons, for example, when the movie "The Social Network" came out, the various characters in there didn't have the ability to control their right of publicity, because there's an artistic license issue that comes up with the First Amendment – freedom of speech – that allows movie makers to use people's images, names, likenesses. Also, you could do it for reporting issues or news, or making commentary.
But again, Mr. Borkowski's context is different. It's not a news article, it's not a movie, and it's not any other artistic work. It's a commercial, an advertisement. And other well-established case law, the First Amendment rights are more restricted in the context of advertising. So here, because the names are coming up in an advertising context, it most likely will be problematic.
Legal Video Marketing Tips: How to Avoid Legal Problems with Right of Publicity
Grant: So what could he be doing differently so he does not run into these legal problems?
Mark: He has two options here:
1) Don't use any names.
2) If you're going to use the names, get the person's consent ahead of time.
Mark also added that publicity law is determined by each state; and the laws vary from state-to-state. Mark stressed to me that his information is for general information purposes only, and not state-specific. So if you are concerned about right of publicity issues or legal issues like this related to your own online video marketing, be sure to consult with a lawyer in your own state!
What's YOUR Legal Video Marketing Question?
Send your question to me at [email protected] (Include in subject line "legal video question”), and include a link to a video of you with your video question, and a video example of what your question is about. I'll submit your question and videos to one of my attorney colleagues and have their answer in a video available for everyone here! It's a great way for us all to get a legal video education, I think.