Rights of Publicity and Privacy on the Internet

Let’s think of a hypothetical situation. Artist makes a hilarious video of himself jumping off a roof onto a trampoline, and then gets stuck in a tree. It becomes a sensation on the Internet, getting millions of views on YouTube, and shown on popular programs such as Tosh.0 and The Soup. Artist gains a bit of notoriety for engaging in such stupidity, and becomes a minor celebrity. After some time, Artist becomes the butt of many jokes. Letterman and Conan start routinely bagging on Artist, and The Daily Show makes a video short splicing together various parts of Artist’s video with current events in a comical montage about the war in Afghanistan. Artist, whose brother is serving in Afghanistan, has enough at this point and brings a lawsuit against the Daily Show claiming the Daily Show falsely portrayed the Artist’s likeness, voice, and beliefs and subjected Artist to ridicule. Does Artist have a legitimate claim against the Daily Show?

The answer is probably no. The First Amendment of the United States constitution, among other things, protects Free Speech. What is and what is not protected speech is a much larger discussion, but for our purposes speech that is “newsworthy” or of “public interest” falls under protected speech. In our scenario, the War in Afghanistan is a newsworthy event, a classification of speech that is protected. Any individual may speak about anything newsworthy in the United States as a result. However what about the comedy aspects The Daily Show included? These additional aspects could be argued to make the montage a “parody” or satire.” The First Amendment protects speech that is a “parody” or said another way, “offers criticism” of something else. The Daily Show using Artist’s video arguably falls under this protection as long as the use of Artist’s video is not in a mean spirited way or with intent to injure Artist. As the Daily Show is known as a comedic program, there is relatively no chance Artist can prove a malicious use by the Daily Show.

Lastly, you may be wondering what about the Copyright in the video? Isn’t the Daily Show using Artist’s creation for their own use? The answer is yes, but as with the First Amendment, there are news and parody fair use defenses to copyright infringement and the Daily Show has a very strong argument that their video is appropriately used in a news format or in a parody.

The moral of the story is that the First Amendment protects a broad range of speech as long as that speech is not offensive and defamatory in nature. Talking about or using a celebrity’s likeness for news and comedic purposes under these type of circumstances, is more than likely protected under the publicity, copyright, and first amendment laws of the United States.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.