Posting pictures on Youtube

[a11111]

What is the name of your state (only U.S. law)? Texas

I recently posted a video on Youtube of my friend and I playing video games and talking about girls. When editing the video, I overlayed images of the girls we were talking about in the corner of the video (images were taken from either their Facebook profiles or from pictures they had personally sent to one of us). The dialogue featured both of us talking about them and "rating" them. All things stated were either opinions or valid facts, and nothing untrue was said. All images were selected from images that the girls in question had voluntarily chosen to publish on the internet for people to see.

Is anything illegal happening here? Violation of privacy perhaps? Like I said we did only select images that the people had already made public, and we made sure to not make up any facts or say anything that was untrue.

If it makes a difference, I would like to address the fact that the video was not advertised or promoted in any way, and is primarily a gaming video that will be viewed for the gaming content (the games featured in the video have licensed us the right to use their content, so that isn't an issue), and the purpose of the video is to review video games and entertain male gamers.

 

[quincy]

Without seeing your video, it is impossible to say if the video content could create legal difficulties for you. Although on the face of it, it sounds like you produced a somewhat clever video, what you have described could also, potentially, create for you some legal headaches.

A personal review of the video, by an attorney in your area, would be necessary to see if you have nicely avoided the following areas of legal risk or if you need to do some quick editing.

First of all, the photos of the girls that you are using in the video are copyrighted and, unless you are the photographer who took the photos, you have no legal rights in the photos. You cannot legally copy the photos or make use of the photos without first obtaining permission from the rights holder. To do so is copyright infringement. It would be infringement even if the photos are available for public viewing on a Facebook page or are sent to you personally.

So, your use of the photos of the girls could potentially spawn an infringement action - although an infringement suit filed over your use of the photos in the manner described is unlikely, for all sorts of reasons. A more likely copyright action would be that your video is pulled from YouTube over the unauthorized use of copyrighted material.

Then, whenever you are talking about specific individuals who are identified or identifiable, you have to be very careful what you say and how you say it. The fact that you say the purpose of your video is to "entertain male gamers," combined with you saying you "rated" these girls, gives me pause.

Expressing opinions is (generally) okay, if your opinions are "pure" and do not state or imply any false facts about the girls. Truth is (generally) okay if the truth does not reveal private facts about the girls or place them in a false light. This is not to say that your publishing the truth or pure opinion about them will prevent them from suing you if they object to the video content - it just means that you may have legitimate defenses to use in these particular areas of the law, in the event you are sued over your video.

Also, if there is a commercial aspect to the video, you may have violated the girls' rights of publicity. You are not allowed to profit commercially off the name or likeness of another individual without their express written consent.

And, finally, how old are these "girls?"

Questions:

Have the girls seen the video? If so, what was their reaction?

Did you think to get their permission prior to using photos of them in your video and making them a part of your video? Why or why not?

If the girls were to duplicate your video but they used photos of you and your friend that they took from your Facebook pages, and they rated you and your friend as truthfully as you did with them, or by expressing their opinions of you and your friend as you did with them, would you be upset? Would you find anything objectionable about such a video, or would you find anything to sue them over?

Whatever the answers to these questions might be, it would no doubt have been a heck of a lot wiser for you to consider the legalities of posting the video online before posting it. If there is anything legally problematic with the content, you may find it hard now to avoid the legal consequences.

I suggest you have an attorney take a look at your gaming video. If you have created a video that has put you at risk of a lawsuit, the attorney can provide you with appropriate advice.

Good luck.

 

[a11111]

Thanks for your reply. It seems like copyright may be the main issue here, in which case Youtube would disable the video and put a strike on our account, which wouldn't be a significant issue because we haven't had any prior strikes.

In response your questions:

- "Have the girls seen the video?" Some have. Some thought it was funny but a couple didn't like it. One asked to be removed from it, but it is impossible to edit a Youtube video after publishing it.

- "Did you think to get their permission prior to using photos of them?" No, the discussion about the girls was in fact an afterthought and was not the original purpose of the video.

- "If the girls were to duplicate your video ... ?" Not at all, I would neither be upset nor try to sue over it, in fact I would most likely find it humorous and would re-post the link to it on my own Facebook or Youtube page. I would only be upset if they were to state blatantly false facts about me that put me in a bad light (which is something that we never did or even got close to doing). The discussion was mainly comprised of silly things along the lines of "she's hot" or "she's not hot."

I can remove the video now if I choose to do so but it has already become quite popular in the gaming community and I'd like to avoid having to remove it unless absolutely necessary.

 

[TigerD]

Thanks for your reply. It seems like copyright may be the main issue here, in which case Youtube would disable the video and put a strike on our account, which wouldn't be a significant issue because we haven't had any prior strikes.

Actually the real threat to you isn't that youtube would disable it, but rather that the copyright holder might sue you.

Legal Lesson Learned: Copywriter Pays $4,000 for $10 Photo | Webcopyplus Web Copywriter Blog
Quoting from the article:
"Apparently copyright infringement involving images that are registered with the U.S. Copyright Office allows for statutory damages of up to $30,000, or $150,000 if it can be demonstrated it was a willful act."

DC

 

[a11111]

Could you argue that you have the right to use the images under fair use because you're only displaying them for the purposes of reviewing them (or the subjects within them)? If it helps that case at all, the pictures were all shrunken and/or cropped when used.

I'm also confused as to how Youtube seems to be above the law, in that I know plenty of people who have uploaded copyrighted music, yet if someone complains about it Youtube will simply delete the video and act like it never happened, and no one actually gets sued. If that's how they deal with complaints from record companies, I can't imagine they'd even care about a complaint from an 18 year old girl about someone using her Facebook photo.

 

[quincy]

Yes, you could argue that your use was a fair use because you were "reviewing" the girls. I'm not sure that defense would fly very well in court, however.

As I said earlier, I doubt that you will get sued for copyright infringement but, as DC pointed out, it is not entirely outside the realm of possibility.

The reason I think an infringement action is doubtful in your described situation is that the photos you used were probably not registered with the U.S. Copyright Office prior to publication on Facebook. This means that (unless the timing of registration and the circumstances play out just right) there would be no ability for the copyright holder to collect statutory damages (the $750 to $30,000 per infringement that is potentially awardable with registration, with up to $150,000 if the infringement is willful).

Without statutory damages, that would leave the copyright holder trying to collect damages based on any actual losses suffered or on any profits you have realized from your video. This can be hard to demonstrate and, even if there are demonstrable profits or losses, these would probably not be significant enough to warrant the costs of pursuing a lawsuit.

So, if your video has no defamatory content and does not invade the privacy of the girls in any way (the biggest worries generally when it comes to online publications, and all I can do is take your word that your video is free from such content), I would say that having the YouTube video pulled would be your biggest concern. If more than one of the girls you featured in the video have already expressed displeasure at your use of their names and images, this could mean your YouTube video will have a short life online.

As for all of those other YouTube creators who seem to "get away" with infringing on copyrighted material, they have either obtained a license to use the copyrighted material or their infringement has not yet been discovered. Once discovered, they may be sent a cease and desist letter with a demand for money to compensate the copyright holder for the use of the copyrighted material, or they will be sued. . . . and YouTube videos have led to costly lawsuits filed against their creators in the past.

Then, it is also possible that the YouTubers are lucky and the copyright holders have chosen to ignore the infringement for whatever reason.

As a note, just because you see everyone else doing something does not mean that what they are doing is legal. The others may merely be playing the odds and hoping they will not get caught, or they may not realize they are breaking the law. Both odds-playing and ignorance of the law can lead to lawsuits.

If you are really concerned about your video's content, have the video checked out by an attorney in your area. A personal review is necessary to determine with any accuracy the risks you face.

Good luck.

 

[TigerD]

As I said earlier, I doubt that you will get sued for copyright infringement but, as DC pointed out, it is not entirely outside the realm of possibility.

I agree it is very unlikely. I just elaborated because the poster seemed to be very flippant about copyright violations.

DC

 

[a11111]

Quincy and DC - thanks for the detailed replies. It does seem very unlikely that any of them would actually bring about a lawsuit, I just wanted to gain some insight into this to see if I actually was breaking the law in any way.

If you don't mind, could you expand on your comment "if your video has no defamatory content and does not invade the privacy of the girls in any way"? As I take it, only untrue facts can be considered defamation, whereas opinions can not, correct? As far as invading their privacy, I suppose it is possible that someone could see the video, look one of us up on Facebook, and then find the girls on our friends, but that wouldn't be much different from someone doing all of that without having seen the video.

 

[quincy]

If you stated in your video anything about the girls that was shared with you in confidence or that was understood to be between just the two of you or that is sensitive information known only to a few, that would (generally) be considered an invasion of privacy. Posting already publicly available photos and information would (generally) not be considered an invasion of privacy.

Opinion can be tricky from both an invasion of privacy and a defamation standpoint. You have a right to express your opinion, but most people think they are expressing an opinion when, in reality, they are expressing an opinion AND stating or implying facts. This is usually not a problem. It becomes a problem only when what is stated or implied in this "opinion" relates a private fact or is false and reputationally injurious.

A (not very good) example:

Saying "She's hot" is protected opinion. No one can prove that statement true or false. It is a pure opinion. Expanding on this brief statement, however, is where a problem can arise. "When she first wakes up in the morning, she's hot." This statement appears to be opinion but it actually implies facts. Depending on the facts of the relationship between the speaker of the words and the "hot" female, the implications in the statement, if true, could potentially invade privacy or, if false, could potentially be defamatory.

Again, a review of your video by an attorney would be the best way to determine if your video can attract any suit that has merit.

 

[asiny]

One asked to be removed from it, but it is impossible to edit a Youtube video after publishing it.

How did you edit the original video? Was it via YouTube or using some other editing software.

Your above comment is full of [insert expletive here]. You could easily re-edit the video removing the content requested.

Will she sue, probably not. But you are being an [insert expletive here].

Bottom line - you are attempting to justify keeping the content in and just don't want to re-edit.

 

[quincy]

Are the expletive deleteds really necessary here, asiny?

 

[asiny]

Are the expletive deleteds really necessary here, asiny?

Yes. As I was recently banned for using asterix **

definition of expletive from Oxford Dictionaries Online

1 an oath or swear word.
2 Grammara word or phrase used to fill out a sentence or a line of verse without adding to the sense.

I use the term to describe option 2. If anyone else chooses otherwise - they you have a mind worse than I
Even if I used 1 - do a search for the definition of oath.

 

[quincy]

Ha. Option number two works for me.

 

[asiny]

Ha. Option number two works for me.

Thanks. I think I have a winner for the next time if I get banned for using [insert expletive here]

 

[a11111]

I don't even know what's going on in this thread anymore.