One lazy summer afternoon you are at a friend’s birthday party. Before you partake in some of the hot barbeque from the grill and a slice of cake, you follow your mother’s advice and take a swim in the pool before you eat. And since you are in friendly company, why not impress your friends with a swan dive from the diving board?
You stand on the diving board and call out for your friends to watch. One of them even starts recording from their phone. You get a running jump and execute a perfect swan dive into the pool. But when you come up for air, you hear laughter instead of clapping, and you look around and realize that your top came off and is floating behind you! You quickly cover yourself up, and nobody can see anything, and you take it in good stride.
And all in good fun, except for the next day, one of your friend’s messages you a link to a YouTube video of the dive-turned-wardrobe-malfunction. You can’t see any nudity in the video, but this is embarrassing! How can you get it taken down?
There are a few legal and practical issues at play in a scenario like this.
The first is the Right of Publicity. Right of Publicity is the right to use your name, image or likeness in a commercial setting for profit. A few key questions to ask to see if this right is being violated are: Is your friend monetizing the video? Is the video being used to try to sell something? If the answer to either of those questions is “yes,” your rights under California law may be violated, and you might have legal standing to have the video removed.
The second legal issue is the Right of Privacy. Right of Privacy is the right that certain private facts remain private. Generally, you have an expectation of privacy in a private setting, and this right is reduced in a public setting. Because this video was taken at a party at a friend’s house, it was taken in a semi-public setting, you probably don’t have an expectation of privacy.
Another legal issue is Copyright. The person who takes a photo or makes a video has a right to register a copyright. For example, a selfie video that you take can be copywritten by you. But you cannot copyright a video someone else takes of you, unless you are involved in the actual production of that video. In this case, you do not have a copyright claim to the video, because you did not take it and did not pay someone to take it for you.
Another issue to consider if you want the embarrassing video of you taken down from YouTube is if it violated YouTube’s Terms of Service and Community Guidelines. One sure-fire way to have a video violate the Terms of Service is to contain nudity. This video is close, but does not exactly violate this rule, since you were under water, and kept covered after you realized that your top came off. In the video, you can hear people laughing, but you cannot see any nudity.
The last practical issue to consider in cases such as these is how many views there are of the video and how many people have seen it. If it was posted to YouTube, but has only been seen by your friend group, a lawsuit to take the video down would only make matters worse: A lawsuit would bring attention to the video that wasn’t previously there. If the video has been widely disseminated and seen, then this may be less of a concern for you, and closure may come from having it removed.
You have rights if there is a video of you posted to YouTube without your permission. Depending on the situation, you may have a legal reason to have it removed. But generally speaking, in cases where there is something embarrassing online, it is sometimes wisest to just let “sleeping dogs lay” and not bring more attention to it. You will have to evaluate each instance on a case-by-case basis.
Based in Santa Monica, California, Pfeiffer Law Corp limits its practice to entertainment law.