Uploading a video of someone else without their permission

Since its inception, YouTube has been known as a kind of “Candid Camera” for the wild variety of staged and unstaged antics caught on its worldwide library of amateur videos. Many of these videos were posted as a prank and revealed by the perpetrators to their victims, much to the latter’s embarrassment/anger, while a number actually included people who had  no clue that they would be, or had been on YouTube at all. Either way, the world likes to laugh at the videos and the person in the videos can either enjoy their new found (usually short lived) fame, or not…

The Fountain Lady issue that had escalated late last month brought to light a new topic that hasn’t been addressed that often in the YouTube environment about privacy issues when being videotaped in public. Just to give you some background, the video is of a woman who’s walking and texting on her phone and accidentally falls into a fountain at a mall. It was posted on YouTube and got over 3 million views in just a few weeks. It gained the ire of the woman in the footage, Cathy Cruz Marrero, who apparently works at the same mall, threatening the mall management with a lawsuit for not assisting her when she fell into the fountain (the footage is from the mall security cameras), and for posting her misfortune on the video-sharing website. Here’s an interview I found of her posted on ReelSEO.com:

Her interview with ABC’s George Stephanophoulos

While most of us would find the Fountain Lady’s claims to be quite ridiculous that — considering that she didn’t look like she needed the security personnel’s help when she got out of fountain and could have easily gone for help herself if she needed it (which she didn’t), and that her identity wasn’t revealed at all what with the CCTV cam’s resolution (and yet she chose to “out” herself) — the “perpetrators” could still end up with a lawsuit, which isn’t a great situation to be in by any stretch. Here’s a summary of what intellectual rights lawyer and ReelSEO-friend Mark Rosenberg had to say on the matter:

1.  There is no case for the Fountain Lady at all because there is no violation of right of privacy or right of publicity. Why? First, because the right of privacy doesn’t apply to newsworthy events and second, because the video was filmed in a public space (except a rest room stall or dressing room), although inside a privately-owned mall.

2. The right to publicity issue only applies to the situation if the mall sold the video and financially profit from it.

3. YouTubers couldn’t be held liable for posting the videos of Fountain Lady regardless of the presence of pre-rolled or in-lay (click-on) ads. Television stations make money from ads that air before newsworthy broadcasts too.

4. YouTube couldn’t be held liable for anything as it is protected by the Communications Decency Act, thus exempting it from liability for state law privacy and publicity claims.

So that pretty much sums it up.  To me, it says, I don’t have to be afraid to get out there and videotape public situations and post them on YouTube. If it’s happening in public (and potentially newsworthy) I’m not selling DVD copies of it, then my risk is low of having legal problems. And when it comes down to it, if you worry about every face that appears in your video, every brand/logo in the area, etc – it will just deter you from making videos at all.  Most people who end up in these videos have fun with it anyway (and if they’re smart, profit from it themselves)… take Antoine Dodson for example who now gets paid to appear in videos and makes money from the  iTunes sales of the song that was made from his news footage.

What do you think? Does the Fountain Lady have a case in your mind? Should we be more considerate of who appears in our videos before we upload them?