Real Estate Social Media Series – Reality Shows, Listing Videos, Firm Commercials & Open House Videos.
As the world becomes more innovative, and real estate companies enter “the real world” as far as marketing and advertising is concerned, and given the growth of digital video technology even a small real estate company can now afford to produce its own reality videos including new listing videos, open house videos, firm and brokerage commercials or even reality tv shows involving real estate sales, fix and flips, commercial real estate and other area of real estate law. In creating these videos, salespersons, brokers, and their staff and employees may be the subject of being videotaped during the course of the show and displayed in various episodes. One of my good friends is a real estate broker and his company was just featured in a few shoots in Los Angeles and he was trying to market himself as a real estate broker and to gain more publicity for his firm. One of the key things to keep in mind in this regard, is that the “right of publicity” is a separate legal right every person has in California, and as a person performing or being shot in the real estate video, you should make sure you are compensated in some form or fashion, or at least have your brokerage or individual name appear in the credits. This blog discusses this new age social media marketing phenomenon.
Right of Publicity Law
California protects the “right of publicity” from Commercial misappropriation (which means your competitors or a video company cannot just use your personal identifying characteristics for their own benefit for financial gain. The generally understood protected elements of your identity are:
This concept is found in both California common law (judge made law coming from real cases) and the statutory right of publicity (Cal. Civ. Code 3344). Let's explore these concepts.
A. California statutory right of publicity
One of the best ways to figure out what the law of Right of Publicity is in California is to look at the jury instructions, and see what a Plaintiff needs to prove to win their case. Here is a look at the elements from CACI 1084A which states:
“To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] knowingly used [name of plaintiff]'s [name/voice/signature/photograph/likeness] [on merchandise/ [or] to advertise or sell [describe what is being advertised or sold]];
2. That the use did not occur in connection with a news, public affairs, or sports broadcast or account, or with a political campaign;
3. That [name of defendant] did not have [name of plaintiff]'s consent;
4. That [name of defendant]'s use of [name of plaintiff]'s [name/ voice/signature/photograph/likeness] was directly connected to [name of defendant]'s commercial purpose;
5. That [name of plaintiff] was harmed;
6. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.
This is the “statutory” right of publicity cause of action. Below is the “common law version” which is similar.
B. California common law right of publicity
As the Court discussed in Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 391, 21 P.3d 797, 799 (2001):
“In this state the right of publicity is both a statutory and a common law right. The statutory right originated in Civil Code section 3344 (hereafter section 3344), enacted in 1971, authorizing recovery of damages by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent. Eight years later, in Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 ( Lugosi), we also recognized a common law right of publicity, which the statute was said to complement ( id. at p. 818 and fn. 6, 160 Cal.Rptr. 323, 603 P.2d 425). But because the common law right was derived from the law of privacy, we held in Lugosi that the cause of action did not survive the death of the person whose identity was exploited and was not descendible to his or her heirs or assignees.” In another case, a California court noted: “Plaintiffs allege that Baseball appropriated their names and likenesses. The elements of this tort, at common law, are: “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. See Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342.) Even if each of these elements is established, however, the common law right does not provide relief for every publication of a person's name or likeness. The First Amendment requires that the right to be protected from unauthorized publicity “be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press. [Citations.]” ( Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228, 253 P.2d 441; and see Comedy III, supra, 25 Cal.4th at pp. 401–402, 106 Cal.Rptr.2d 126, 21 P.3d 797; Downing v. Abercrombie & Fitch (9th Cir.2001) 265 F.3d 994, 1001 ( Downing ); Hoffman v. Capital Cities/ABC, Inc. (9th Cir.2001) 255 F.3d 1180, 1183–1184 ( Hoffman ). See Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409-10, 114 Cal. Rptr. 2d 307, 313-14 (2001).
Attorney Steve Tip: Note potential defenses to a right of publicity action include but are not limited to: (a) Plaintiff's consent, (b) no commercial use, (c) Plaintiff's name, image, likeness not used, (d) first amendment important free speech issues, (e) incidental and fleeting uses, (f) no injury caused, (g) copyright preemption.
Similar causes of action that might be raised in a right of publicity type of violation
Here are a few similar causes of action that might arise when you believe you have a right of publicity claim at hand:
1. False advertising
2. Unfair competition and business practices (California Business & Professions Code Section 17200)
3. Violation of Right of Privacy (violating the “right to be let alone” – ex. intrusion on seclusion and solitude, publication of private non-news worthy facts).
4. Copyright infringement (using a photo, image, or illustration of a person, agent, broker etc.)
5. Violation of Trademarks (ex. infringing on a well known nickname)
As always, the best thing to do is to have your case reviewed by entertainment and IP counsel to see what legal rights, remedies and defenses you may have as a potential or actual Plaintiff or Defendant.
Get your agreements in WRITING!!!
When you are shooting video (whether it be a brokerage commercial, open house video, client testimonials, or real estate reality show) you want to make sure you have all your promises and agreements in writing. You do not want to have to come back after you have a dispute and allege that there were “oral contracts” for this or that. While oral contacts may be enforceable, it is always a challenge to prove what the other party promised when a dispute arises (you can assume the other party will deny whatever your allegations are and a “he-said-she-said” problem will the arise. Get your contracts, promises, commitments, and representations in writing. This includes, but is not limited to:
1. Trademark clearances
2. Copyright clearances
3. Right of publicity releases / agreements to compensate
4. Location releases and film permits
5. Royalty agreements
6. Joint marketing agreements (ex. online distribution agreements)
7. Social media marketing & internet marketing contracts
8. Film financing agreements
9. Partnership & Copyright ownership agreements
10. Other contracts (there are many other types of agreements that could pop up in regard to your shoot, including merchandising and copyright licensing agreements).
Contact us. We can help you document your commitments and the commitment of others in writing so that you are protected in your dealings, and can feel comfortable in dealing with your rights of publicity, and have a binding agreement as to ownership of the video rights, copyrights, and how profits will be distributed.
If the filmmaker or production company breaches the Contract you may have legal rights
In some cases, if the video takes-off, goes viral, or a network wants to syndicate your show, excitement levels can rise, and disputes can surface as to ownership rights, profits to be paid, licensing and other issues that can pop up in any entertainment venture. Our business lawyers can help you resolve your disputes through any of the following measures:
1. Demand letter and pre-litigation negotiations
3. Arbitration (binding or non-binding)
4. Copyright Litigation (state or federal Court)
5. Right of Publicity Litigation
5. UDRP domain disputes (where domain names are involved)
If you are involved in a real estate reality TV dispute (either as a broker, individual or real estate company or an individual dealing with a real estate company or film company that has breached their legal obligations) or treated you unfairly, contact one of our litigation attorney so we can analyze and assess your case and legal options.
California Right of Publicity Legal Resources
1. Statutory 3344 ROP Jury instructions
2. Cal. Right of Publicity “Damages” jury instruction (CACI 1821)
3. NCAA athletes Right of Publicity Case
Our Social Media Marketing and Right of Publicity Services – From Contracts and Counseling to high stakes dispute resolution and litigation.
We can help individual real estate brokers, appraisers, title or escrow officers, property management companies, business brokers, residential commercial or land brokerages in the following areas of new media law:
1. Agreement to hire talent for your videos (contracts law)
2. Right of publicity agreements
3. Trademark and Copyright clearance
4. Film financing agreements
5. Social media distribution agreements
6. Joint marketing and affiliate contracts
7. Breach of contract & royalty issues
8. Arbitration of disputes
9. Right of publicity litigation
10. Disputes with SAG and other unions
Contact us at the number below to discuss your needs. You can also fill out the contact form below to speak with one of our entertainment, new media intellectual property lawyers.
Contact a Real estate social media and right of publicity law firm
Our law firm is licensed to practice law in California and Arizona. Our attorneys are each licensed in both states. We have offices in San Diego, Newport Beach (Orange County), Beverly Hills (serving Los Angeles area), San Francisco (servicing Silicon Valley and the bar area), and Phoenix, Arizona (serving Phoenix, Scottsdale and other local areas). We offer flexible legal fees, and creative and tenacious legal representation. Call us at (877) 276-5084 or fill out the contact form below to have one of our entertainment lawyers contact you, usually within the hour.
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