For some reason, every now and then, I'll have one of those First Amendment Auditor videos come up on YouTube. Not really my normal cup of tea, but sometimes I'm bored enough. Side note for those who aren't familiar, these are people who go out in public, and start video recording while standing on the sidewalk. They are fully legal to do so, as long as they aren't harassing people, etc. But there's almost always someone who says "You can't record me without my permission" which out in public like that, is not true.
But, there's something that has occurred to me. I've done professional videography before, and if I'm going to record someone for the purpose of making money, I do have to have a signed release. Now, these auditors usually have a YouTube channel, and if the video is monetized, wouldn't that mean the person could sue once the video is posted?
For those of you who don't know what these "First Amendment Auditor" videos are, see below. The ease and low cost of digital video an dissemination has created a disconcerting situation that the founders of our constitution likely did not foresee.
When the motive and intent for recording a video is public display and revenue generation, you'd certainly want a signed consent form to protect you from being sued later. Once an arrest takes place or a lawsuit is filed, you'll need to pay for a defense, with settlement often being a more affordable solution than proving your protected right to record and include another person in your video. For example, this particular auditor has a GoFundMe account to help him with an arrest.
Not all YouTube channels are monetized. But if the "First Amendment Auditor" is monetizing their channel, their activities have arguably crossed the line towards non-protected commercial activity. I think it's fair to say that many are taking liberties with the law to create gig revenue streams by trying to extend into gray areas, such as "reaction videos" to flims, music or other protected works that display the entire work to the viewer and deprives the rights owner from sharing in the revenue that was generated from their efforts and work of authorship. This type of activity is one step removed but still has the same whiff of potentially straddling boundaries.
Below are boundaries and solid reasons for having a signed consent form for a video which includes the likeness of others for videos being posted online or displayed publicly, most especially those that are intended to and generating revenues for the film maker.
1. Non-Commercial v. Commercial Interests. Making a film or recording a video of a constitutionally protected public area which includes people for your own private and/or legitimate non-commercial purpose (e.g., ensuring that government is acting appropriately) is one type of act. But that is entirely different from filming in public for the purpose of the promotion of commerce, public display, and private commercial gain. Claiming you're protected because your motive was the former is certainly not a guaranteed shield if actions enter the latter. The First Amendment has limitations that people tend to ignore when convenient.
2. If the activity infringes upon the legitimate right of another, including the government's right to engage in its operations, the First Amendment Right is limited.
3. Consider state privacy and right of publicity laws, which vary between states, with California being the most vigilant.
California's Right of Publicity Law
Cal. Civ. Code § 3344
Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without that person's prior consent, or, in the case of a minor, the prior consent of their parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by them as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing these profits, the injured party or parties are required to present proof only of the gross revenue attributable to the unauthorized use, and the person who violated this section is required to prove their deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
4. Consider other statutes that may apply, such as
California Penal Code 632, which you generally are prohibited from recording a private phone conversation without consent, even if the person is in public, since California is a "two-party" (all-party) consent state.
A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
