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Top 5 Legal Issues for Podcasters – Number 4: Rights of Privacy and Publicity

In this five-part series, we examine each of five potential intellectual property pitfalls podcasters can face and the steps you can take to reduce the likelihood of having one of these issues be the centerpiece of a lawsuit with your podcast’s name on it.

4. Right of Publicity and Right of Privacy

The Right of Privacy

In 1928, United States Supreme Court Justice Louis Brandeis noted in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), that the right of privacy is “the right to be let alone,” and is “the most comprehensive of rights and the right most valued by civilized men.” Ninety years later, a majority of the United States Supreme Court affirmatively cited Justice Brandeis’ dissent in defense of the proposition that as “subtler and more far-reaching means of invading privacy… become available to the Government,” the “progress of science” must not erode protections guaranteed American citizens under the Fourth Amendment to the United States Constitution. The Fourth Amendment deals with restricting the government from invading the privacy of American citizens, through eavesdropping, video surveillance, improper searches, etc.

Federal protections of the right of privacy are broader than merely restrictions on the government. Federal law 18 U.S.C. § 2511(2)(d) prohibits anyone from intentionally disclosing, or endeavoring to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted without the parties’ knowledge. Under federal law, it is not illegal to disclose the contents of an intercepted communication, as long as you are one of the parties to whom the communication was delivered. So under federal law, it would not be a violation of the right of privacy to disclose on your podcast the contents of an email if you are a party copied in on that email. It would also not be a violation of this federal law to publish a portion of a podcast conversation recorded before or after the guest believed the recording had started or stopped. It may be unethical to publish such a conversation, and it may violate other laws, and it may dissuade future guests from coming on your podcast, but it is not a violation of 18 U.S.C. § 2511.

While federal law only requires the consent of at least one party to a conversation to allow the conversation to be recorded and published, many states require the consent of all parties. At the time of this writing, thirty-eight (38) states and the District of Columbia have only a “one-party” consent requirement. Eleven states require all parties to the conversation consent before a recording of the conversation can be published. Nevada is kind of odd. While under Nevada law, the consent of only one party is required, Nevada’s Supreme Court has held that the consent of all parties is required.

Avoiding Lawsuits Over the Violation of Someone’s Privacy Rights

The right of privacy is one of those things that evokes deep emotion. If a guest or someone you discuss on your podcast feels you have invaded their right of privacy, they may sue you regardless of the strength of their case. For new podcasters and/or podcasters without the financial resources to defend a lawsuit, it is best to avoid disclosing private information of third-parties without their written consent. If you want to use recordings of guests before or after the official start of the podcast, be sure to obtain the guest’s written acknowledgement before the podcast, preferably in the form of a signed release, and remind them again in person when they arrive, that everything is being recorded and that those recordings may or may not be be edited into the podcast.

The Right of Publicity

The right of publicity is of a much more recent vintage (just the last 100 years or so), than the much, much older right of privacy from which it developed. Unlike the right of privacy, the right of publicity is a person’s right to control the commercial exploitation of their name, image, likeness, etc. The right of publicity often comes into play in situations where a celebrity’s likeness is used to market third-party goods or services without their consent. Unlike the right of privacy, which is protected by the Constitution and specific federal statutes, the right of publicity is a patchwork of state and common law. Without knowing which state law applies to your activities, it is impossible to know which laws relating to the right of publicity apply to your podcast. Even if what you want to do is legal in one state, it may not be legal in another. It is therefor important to check the laws of the applicable state, and have those laws applied to the facts of your proposed actions by a lawyer who has experience dealing with right of publicity cases.

As of this writing, twenty-eight states protect the right of publicity in some form or another. Seventeen states have actual statutes protecting the right of publicity. The remaining eleven states rely on common law, rather than statutes, to protect the right of publicity, which ironically often creates broader protection for the individual’s right of publicity than states with actual statutes. Throughout the country, the duration of the right of publicity varies widely from state to state. The duration can be as short as the life of the individual or as long as commercial exploitation of the persona continues. Although right of publicity laws vary from state to state, several states include some common concepts in their right of publicity laws. The following is a synthesis of various state right of publicity laws that may, or may not, be applicable to your podcast:

While state laws protecting the right of publicity ostensibly protect everyone’s right of publicity, more and more often the right of publicity is being asserted by celebrities interested less in stopping the use of their likeness, and more in promoting the “right” kind of publicity. It is these celebrities who are driving, and will continue to drive, how the right of publicity is, and will be, interpreted by courts far into the future. The key to avoiding getting your podcast embroiled in a lawsuit over violating a celebrity’s right of publicity is to avoid any promotion of your goods or services or the services of your sponsors that is identifiable by the public with a particular individual. If the public identifies such usage on your podcast with a celebrity’s image, avatar, voice, video, or movements, such usage may violate that celebrity’s right of publicity.

The primary defense to a claim that a podcast violates an individual’s right of publicity is that the podcast did not use the likeness in a commercial context. If your podcast does not generate any money, it is easier, in theory, to defend against a claim that you violated someone’s right of publicity. In reality, however, if your podcast is not generating any income, you are less likely to have the financial resources to hire a lawyer and even get to a point where a judge or jury determines whether or not you have violated someone’s right of publicity. Other defenses to claims your podcast violated someone else’s right of publicity include your usage being used for critical commentary, news reporting, social commentary, parody of the individual, etc. These are allowable usages of a person’s likeness that trump their right of publicity. But again, these defenses may be difficult to prove in court. For instance in a podcast about a celebrity’s recent drunken escapades, you would legally be able to use the celebrity’s name and relevant quotes in association with the podcast under a claim that the newsworthiness of the story and the use of the podcast as a media outlet overrides the celebrity’s right of publicity. That does not, however, mean you will not get sued, or that you would have the financial resources to defend the case long enough to get it in front of a judge or jury, or that no jury would ever find you liable for violating the celebrity’s right of publicity.

The typical relief sought in a right of publicity case is an injunction from the court preventing the podcast from continued use of the individual’s name or likeness to commercially promote goods or services without authorization. Additionally, an individual may collect from a podcast the estimated value of an appropriate licensing agreement for the alleged usage, damages for deceptive marketing, and injury to emotion or reputation, which may total seven figures or more. Some states afford greater protection for the right of publicity, while some afford none. As a result, if you get sued by someone for violating their right of publicity, you can expect that they will do everything they can to sue you in a state that affords their right of publicity the maximum amount of protection and affords you the fewest set of potential defenses.

Avoiding Lawsuits Over the Violation of Someone’s Right of Publicity

The right of publicity not only strikes at the heart of a person’s identification, it also strikes at their pocketbook. If someone’s likeness is valuable enough for you to want to use it to promote your podcast’s goods or services, their likeness is probably valuable enough for them to defend in court. Because right of publicity cases are complex, if your podcast gets sued for violating someone’s right of publicity, it is unlikely you will will be able to get a court to determine, with any alacrity, whether you did or did not violate the plaintiff’s right of publicity. This means that unless you are sitting on a pile of cash, there is a good chance you will run out of money before a court even determines whether you were right or wrong. This typically leads to a default judgment, that includes not only an injunction, but a monetary award large enough to shut down your podcast. Discretion is therefore the better part of valor. If you are unsure whether the use of a person’s likeness on your podcast is a violation of their right of publicity, do not use their likeness. As for guests on your podcast, be sure that the release you have them sign includes a release for their right of publicity as it relates to their appearance.

Conclusion

The right of privacy and the right of publicity are ever-changing minefields that can easily land your podcast on the costly end of a lawsuit. What constitutes the right of privacy and the right of publicity today may be different tomorrow. As the use and consumption of social media changes, so do the expectations of the public regarding the protection of their likeness and private information. To avoid third-party lawsuits and ill-will from third-parties, it is important to educate yourself not only as to what the law protects in terms of privacy and publicity, but also as to the reasonable expectations of third-parties. Even if something does not technically violate anyone’s right of privacy or publicity, that will be of little solace if your podcast goes bankrupt halfway through a lawsuit brought against you and your podcast for allegedly violating someone’s right of privacy or right of publicity lawsuit. It is therefore important to keep yourself updated as to not only what you can do in terms of avoiding violating a third-party’s right of privacy or right of publicity, but also what you should do.

Be sure to check out the other posts in this Top 5 Legal Issues for Podcasters series:

Number 1: Copyright Infringement
Number 2: Trademark Infringement
Number 3: Defamation
Number 5: Patents

Posted in Choosing the Best Lawyer, General, Internet Law, Podcasting, social media.