Creeper Cosplay Video | Is That Legal

Gradisca Cosplay Photo Contest 2014 by chripell from Flickr (Creative Commons License)

Gradisca Cosplay Photo Contest 2014 by chripell from Flickr (Creative Commons License)

A contact at Phoenix Comicon sent me a link to an amateur video from this year’s event. Apparently it’s feuled quite a bit of discussion regarding the legalities of shooting video at pay-to-attend events.

My initial thoughts about this video: It’s creepy.
This guy knowingly and intentionally videorecorded women without their consent and posted the compilation online in a way that objectifies them. It’s all about their bodies. Did you notice he taped at least one woman while she was walking away from the bathroom? Eww! And what’s with that disturbing music with women crying on it? This guy is right up there with creepy yellow coat man from the 2010 No Pants Light Rail Ride.

What made this video so disturbing? Greg Benson of Mediocre Films does videos of women in cosplay at San Diego Comic-Con and I’ve never had an issue with it. I watched one of his videos from last year for comparison:

I don’t have an issue with this video for several reasons:

  • He obviously gets consent from the women to film them. There’s no hidden agenda.
  • He interacts with these women. Even when he’s enjoying the beauty around him, Greg treats these women like people, not a peep show.
  • The video has a dual purpose – one of which is showcasing these stunning costumes. (Hey Greg – if you do another video like this, would you please call it “Women of Comic Con” instead of “girls?” It’s a better embodiment of these women’s badassery.)

So is Creeper Guy’s video from Phoenix Comicon illegal?
Probably not – at least based on the footage posted. It’s not illegal to be a jerk.
If he had a ticket to the event, he wasn’t trespassing. The polite thing to do at a con is to ask permission before taking photos of attendees, but it’s not required.  He could have been a guy walking around looking like he was shooting general footage of the event, which lots of people do.

So far he’s not running ads on the video in question, so he’s not publicizing anyone’s image without permission. Phoenix Comicon is an event that’s open to the public to attend so there’s no expectation of privacy on the expo floor.

Is what this guy did vile? Yes.
Should he be banned from future Phoenix Comicon events? Perhaps, but that’s not my call to make. With a crowd of over 80,000 in attendance, it would be easy for someone to slip in.

However, instead of dealing with this situation from purely a legal perspective, I encourage the community to be aware of creepers at events like Phoenix Comicon. If you see someone leering at others or doing vulgar things like filming people’s asses as they walk, call them out and/or report them to event security. If you see someone being harassed, report that too and support that person. We have an obligation to keep an eye on each other.

There’s nothing wrong with enjoying the view, as long as you can do it appropriately. Remember, cosplay is not consent.

This is an issue impacting the entire geek/con community. If you believe you are the victim of a crime at a con, contact law enforcement for assistance. If you have questions about social media law or internet privacy that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Checklist for Social Media Influencers

Selfie Stick by R4vi from Flickr (Creative Commons License)

Selfie Stick by R4vi from Flickr (Creative Commons License)

Some people, including a lot of average joes, have such a strong social media following that brands want to send them free products to review or to partner with them for a native advertising campaign. If you are lucky enough to get such an offer, you need to understand the rules and read the fine print closely to make sure you’re not setting yourself up to be accused of an FTC violation. Don’t count on the other side to educate you. As we saw in the Lord &Taylor situation, companies who seek to partner with social media influencers don’t always know and follow the rules themselves.

If I were presented with an offer to do a product review or be part of a native advertising campaign, these are some of the questions I would ask in regards to the offer.

Influencer-Company Relationship
What is the company asking me to do?
What is the company giving me in return?
Is there fair give-and-take between both sides? (If not, it’s not a valid contract.)
Are expectations and deadlines clear?
Who is my point person at the company if I have any questions?

FTC Compliance
Does the offer require that my review be truthful?
Does the offer require me to give an accurate review of the product? (Bonus points for companies that require reviewers to write what they like and dislike about the product.)
Does the offer require that me to disclose my relationship with the company – both in my review itself and also any promotions I do about the content on social media (i.e., use #ad or #sponsored)? (The FTC requires this so if the company doesn’t want you to do this, turn and run. They don’t know the basic rules about native advertising.)

Intellectual Property
Does the offer clearly state who owns the copyright in what I create under the agreement?
By accepting the offer, do I grant the company certain rights to use my work?

General Legal Provisions
Is there a written contract? (It’s avoids confusion when all the provisions are in a single document and has  provision that states, all the terms of this agreement are in this contract.)
Is there a severability clause so if one provision is illegal, the rest of the contract remains in place?
What are the rules for modifying the agreement?
Which state law governs the agreement?
If there’s a problem between the company and me, how will we resolve it?
Under what circumstances will the agreement be terminated?

Final Words of Wisdom
Contracts are relationship-management documents, ideally written to protect both sides. If a company offers me a contract with provisions I dislike, I request changes. (I’m the queen of changing liability waivers.)

And if there’s a word or provision you don’t apprehend, ask! Don’t sign a contract that you don’t understand, because as long as it’s legal, you’re stuck with it.

If you are a serious influencer and get offers to do product reviews or participate in campaigns, treat your social media activities like a business. Consider hiring a lawyer to create a contract template for these situations when the other side doesn’t have a written contract. At the least, use this checklist to do a preliminary review of the offers you receive.

If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

Treat your Blog as a Business

Office Hours by Tanel Teemusk from Flickr (Creative Commons License)

Office Hours by Tanel Teemusk from Flickr (Creative Commons License)

If you are making money from your blog, or you want to make money from your blog, you have a business. Treat it like the business that it is. You are no longer a hobbyist; you’re an entrepreneur.

Form a Business Entity
Creating a business entity is a relatively straightforward process. In general, it takes paperwork and money. Check with your state’s corporation commission or the secretary of state office to determine how much it will cost – because they significantly vary from state to state. If you have questions about whether you should form a limited liability company (LLC) or a corporation or whether you should form your business in your home state or elsewhere, as your accountant. Most clients I work with in Arizona opt to form Arizona LLCs.

The purpose of having a business entity is to protect you (the person) from liability. With a proper business entity, if the company gets sued, only the business assets will be on the line. Your personal assets (home, car, stuff, dog, etc.) will not be at risk.

Separate Bank Account and Credit Cards
You begin to protect yourself from liability by forming a business entity. The way you perfect that protection is by having separate bank accounts and credit cards for the company. You need to have a clear delineation between where you the person ends and the business begins. This often referred to as maintaining the “corporate veil.”

When you receive money as income, make sure business income passes through the business accounts. Additionally, when you spend money, use your personal accounts to pay for personal expenses (mortgage, groceries, etc.) and use the business accounts to pay for business expenses (office supplies, webhosting, etc.). To steal a line from Ghostbusters, “Don’t cross the streams.”

See your Accountant
Unless you’re a CPA, no entrepreneur should do their own taxes. You can probably make more money if you take the time you would need to do your own taxes to work on your business while someone else does your taxes for you. Having an accountant has saved me a lot of time and headaches. A good accountant is worth their weight in gold.

I love my accountant. He makes doing my taxes so easy. He’s been there to answer all my questions about what can and can’t claim as business expenses and what other information I should track, like mileage.

If you’re new to operating your blog as a business, or if you’ve been doing everything on your own up to now, do yourself a favor and hire a lawyer for an hour. Have a consultation to educate yourself about the legalities of running your business. As an entrepreneurial blogger, you want to be familiar with business formation, contract basics, privacy, copyright, trademarks, and the FTC rules regarding promotions and product reviews. There is a lot to know, but it’s not so complicated that a lay person can’t grasp and apply the concepts.

If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

Five Ways to be Legal Killed for your Blog

Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)

Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)

Yes, you can be legally killed because of something you post on your blog – just not in the United States. As a social media attorney, I deal with a lot of situations involving people behaving badly online, but none of them amount to circumstance where a post can result in crime punishable by death.

There are crimes you can commit via your blog that are punishable by death in certain countries:

Witchcraft: Saudi Arabia

Membership in the Muslim Brotherhood: Syria

Homosexuality: Afghanistan, Iran, Yemen

Atheism: Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan, The Maldives

Opposing the Government/Treason: Bahrain, Belarus, China, Egypt, Ethiopia, Gambia, India, Libya, North Korea, Singapore, South Sudan, Sudan, Syria, United Arab Emirates

This list makes me nervous for travel bloggers, including my friends The Opportunistic Travelers who trek all over the world. If you hit the authority’s radar in the wrong country, it could lead to some serious consequences – such as being caned in Singapore for graffiti. Before you pack your bags for your next adventure, make sure you research the laws that impact your actions in real life and online.

If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

FTC & Promotions – Always Disclose Relationships

My box of Mental Mojo - love this stuff! (Thanks to the owners for sending me free product!)

My box of Mental Mojo – love this stuff! (Thanks to the owners for sending me free product!)

My friends own a company called Mental Mojo – it’s a powder that contains caffeine and cognitive enhancers that you mix in water. I drink it when I’m tired – it helps me get my work done without making me jittery. (I love that it turns my water super nerd green, which reminds me of this infamous exchange between Data and Scotty on Star Trek: The Next Generation.)

Because I talk about it so much online, I usually get my Mental Mojo for free (and they’ve invited me to the taste test for the new flavors). I’m not a paid spokesperson for this company, but I do get benefits from promoting the product. As such, every time I talk about drinking free product, I need to disclose my relationship with this company – not just because it shows transparency, but because the federal law requires it.

FTC Rules about Promotions
The Federal Trade Commission has strict rules about making “clear and conspicuous” disclosures when a person has a relationship with a company. These rules apply to spokespeople, online contest participants, product reviewers, and companies that use affiliate links on your site. When you are compensated for giving an opinion, you have to disclose your relationship.

If you fail to disclose a relationship with a company, the FTC can fine you up to $11,000. And they can go after you or the company.

Even in 140 Characters
And don’t think for a second that tweets or other micro-form social media sites are exempt from this rule. At the very least, you have to include “#ad” on your post. It’s not enough to include a link to a site that includes the disclosure of your relationship.

Truthfulness and Transparency
Whenever you write a product review, whether it’s on a review site like Yelp, a product review blog post, or providing a quote for their website or LinkedIn profile, you must provide a truthful and accurate review of the product or service. Posting fake or embellished reviews (positive or negative) violates the FTC rules.

I’ve written product reviews and I appreciate that my editors respect the FTC rules by asking us to describe the benefits and drawbacks of each product we try.

Video Disclosures
If you do reviews in video form – including unboxing videos – you need to disclose when you get free product and provide honest reviews. The FTC says it’s not enough to have the disclosure in the video notes. You have to say it or post verbiage to that effect at the beginning of your video and possibly repeat this information throughout the video depending on its length.

This disclosure doesn’t have to be complex. It can be something like, “The guys at Mental Mojo sent me this free box of their product. Let’s try it out.” (If you are trying Mental Mojo for the first time, the flavor may be a bit strong. Until you get used to the taste, you may want to mix it with club soda instead of plain water. The carbonation helps take the edge off.)

Final Thoughts
Disclose disclose disclose. If you get a benefit from talking about a product or company online, disclose it. Whether it’s your employer, a client, or a company that sends you stuff for free – it should be crystal clear to anyone who sees your posts that you have a relationship with the company.

If you work with spokespersons or campaign partners, make sure part of your relationship includes an educational component about their obligation to disclose your affiliation whenever they talk about you on any platform.

I spoke about this topic earlier this year at Content Marketing World. Be sure to check out the follow-up article about this panel by Northeast Ohio Media Group.

If you want more information about this topic, please check out 6 Things to Know About FTC Disclosures When Working with Influencers or my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about a specific question related to the FTC rules and promotions, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Protect Yourself from Cyberflashers

Lens Flare by Lee Netherton from Flickr (Creative Commons License)

Lens Flare by Lee Netherton from Flickr (Creative Commons License)

Eww eww eww!

If you or your child has an iPhone, adjust the settings for AirDrop now to avoid being targeted by cyberflashers.

Apparently this is a thing – the default setting for AirDrop allows people in your vicinity to send you photos. It displays a small version of the image with the option to Accept or Decline. So if somebody wants to send you a picture of their junk, even if you Decline, you’ve already seen the image! That’s cyberflashing.

If you have an iPhone, please read this article from Sophos that explains step-by-step how to adjust your AirDrop settings to avoid being cyberflashed.

This is so disturbing. If your AirDrop allows anyone in the vicinity to see you, it lists to as “[First Name’s] iPhone” so the cyberflasher can target people based on their assumed gender. It doesn’t tell you anything about the recipient’s age. Indecent exposure is a crime in Arizona, and it’s a felony if you flash someone who is less than 15 years old.

Eww eww eww! It is absolutely vile and wrong to invade unsuspecting people’s iPhones (including children’s iPhones) and inflict your naked photos on them. I hope Apple realizes how wrong this is and changes the default settings on their phones.

If you want to chat more about privacy and cybersecurity, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Summer Social Media PSA for Teens & Tweens

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Summer is officially here! It’s hottest than Hades in Phoenix and the kids are out of school until August. I suspect that a lot of teens and tweens have a lot more free time than during the school year and they might be spending much of it glued to their cell phones and tablets. Here are my recommendations for having a summer without social media-based regrets:

Think before you post.

Think before you text.

Think before you chat.

Think before you tweet.

Think before you snap (a photo).

Think before you shoot (a video).

Think before you send (anything).

Remember, that there is a permanent record of everything post online or send to another person. You never know when someone is going to forward, download, screenshot what you thought was only going out to a small group or contained in a person-to-person communication. What you post or send doesn’t have the same emotional impact when we can’t hear the inflection in your voice or facial expression (especially sarcasm). You never know how a post will be interpreted out of context. What you thought was justified or funny in the moment may have long-term effects for you. (Just ask Justine Sacco – with one tweet she lost her job and appeared to anger the entire planet.)

Carter Law Firm's Postcards

These are my two rules of thumb regarding the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post online will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want someone to see what you’re thinking about posting, don’t put it out there.

These rules also apply to emails and text messages.

For anyone who is applying for jobs or college, those decision makers may be looking you up online. You want to be sure that what you post online is congruent with how you present yourself in-person or on paper. You don’t want to appear irresponsible or that you lack good judgement.

I’ve had to read the riot act to a teen who misbehaved online, and I would be happy to do it again if it means I can help prevent someone from posting something they’ll regret later. If you want to chat more about social media dos and don’ts, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

What Happened to Adult Wednesday Addams?

Haunted House by barb_ar from Flickr (Creative Commons License)

Haunted House by barb_ar from Flickr (Creative Commons License)

Earlier this year, I discovered Melissa Hunter’s “Adult Wednesday Addams” on YouTube. It’s a collection of short videos featuring Melissa playing a grown-up version of the iconic Addams Family character. In each video, Melissa dresses up like Wednesday Addams (black dress, long braids, pale skin, and deadpan attitude) and plays out everyday occurrences (like interviewing to be someone’s roommate and going to work) while embodying the Wednesday Addams character. She is a talented, smart, and funny writer.

Recently I noticed that all of Melissa’s adult Wednesday Addams videos were pulled from her YouTube channel. (You can still find them on others’ channels.) Apparently, Tee & Charles Addams Foundation, the copyright holder for the Addams Family, flagged her videos for copyright infringement after her video where Adult Wednesday Addams responds to catcallers gained attention by the international press.

So of course, my question in this situation is, “Are the Adult Wednesday Addams videos infringing on the original Addams Family copyright or are they protected by fair use?”

The law is complicated and there is no mathematical equation that will definitively show whether this is fair use. That is up to a court to decide based on the merits of the case. There are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright: PAIN.

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Adult Wednesday Addams transforms the original Wednesday Addams character who was a tween in the latest Addams Family movie (Favors Melissa). I don’t remember if Melissa was running ads on her videos, but if she was, that would be a strike against her – but not a deal breaker (Favors Addams Foundation).
  • A (Amount): Compared to the entire Addams Family franchise, Melissa only used a single character (Favors Melissa) but compared to the copyright in the Wednesday Addams character herself, Melissa copied a substantial amount (Favors Addams Foundation). However, part of what makes Adult Wednesday Addams work is that we know that she is copying the original. That’s what makes it so funny, and parody is generally protected by fair use.
  • I (Impact on the market): Apparently there is a new project in the works for the Addams Family, but I don’t know if Melissa’s work will have any effect on that. Melissa’s videos are only a few minutes long, compared to the longer TV shows and movies created using the original characters’ story line. Her work is definitely not a viable substitute for those (Favors Melissa).
  • N (Nature of copied work): The Addams Family has been made into cartoons, a TV show, and movies. Melissa Hunter created short YouTube videos. Although these are both audiovisual works, they cater to different audiences (Favors Melissa).

Do I think what Melissa did was fair use? Yes. I hope she’s fighting the claim that her work is copyright infringement, and I hope whoever is working on the Addams Family remake offers to hire her. Remember, fair use is a defense, not a permission slip, so Melissa has to prove to the court that what she did was legal if she chooses to fight this.

Yesterday, Melissa released a video with an update about Adult Wednesday Addams:

I’m glad to see that Melissa is as sassy as ever and that she’s working on this while putting energy into new projects too. Keep wearing that dress!

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Dislike or Defamation – Rules about Online Reviews

https://www.flickr.com/photos/jesper/269194762

John and Jesper | Thumbs Down by Jesper Rønn-Jensen from Flickr (Creative Commons License)

When it comes to online review sites like Yelp and TripAdvisor, it may be difficult to do to determine when a reviewer is a legally sharing their dissatisfaction about you and when they are out-and-out defaming you. The former is legally protected speech that requires damage control; and the latter may require a cease-and-desist letter or a lawsuit.

One of the best things of out the Internet is that it gives Joe Average people a platform to share their thoughts. Review sites like Yelp and TripAdvisor let multiple people share their experiences with a business that others can read and the business owners can respond to reviews within this forum. They can give you an idea of what to expect before you arrive and whether a particular place will fulfill your needs or expectations. I find it highly valuable, and when I’m satisfied with the service I received from a company, I often asked them where I can leave positive feedback for them online.

When a company sucks, I don’t hesitate to share those thoughts either. I believe that friends don’t give friends bad referrals, and that there is no problem with calling out a business that does a particularly bad job. But there is a right way and a wrong way to do it.

1. Stick to the Facts: Unless you have a nondisclosure agreement that prevents you from sharing in your experience, there shouldn’t be a problem if you simply state the facts of your experience – i.e., the delivery people were 2 hours late, your food was cold when it arrived, the clerk apologized for not having the item you wanted.

2. Share your Feelings: Share how you felt during the experience – you were pleased that the restaurant comped the meal that you sent back, you were angry that you missed an appointment while you were waiting for the delivery guys, you were shocked that the clerk stared at your chest instead of looking you in the eye when he/she spoke to you.

3. Be Accurate: Federal law requires you to be truthful and accurate when giving a review. Avoid half-truths and insinuations. There should be no doubt in the reader’s mind between what you wrote and what you meant. This law also requires you to disclose when you are compensated for providing your opinion – such as getting free products or paid for providing a review. (The penalty for violating this rule is a fine for up to $11,000.)

In general, be thoughtful about what you post online and reading each review carefully before you hit “post” or “save.” If you are making a statement that sounds like a fact, make sure that it is verifiable. So that means you can’t say that a particular restaurant gave you food poisoning unless you can present hard evidence (like a doctor’s note) that that particular meal is what made you sick. Otherwise, you might be better off calling or email laying the manager directly and explaining that you were sick shortly after eating at that restaurant and that they might want to make sure all employees are complying with the rules to avoid foodborne illnesses.

If you believe and online review may have crossed the line from expressing dissatisfaction to defaming a person or the company, contact a social media attorney to review the situation and advise you of your options. With so many people sharing their opinions and experiences on a multitude of platforms, this is an issue that is not going away any time soon. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

If Someone Sends you a Photo of Themselves, Do you Own It?

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.