You may have seen the quickly going viral Carrie based “prankvertisement” in which a NY coffee shop was rigged to make it appear that a woman could move things with her mind. If you haven’t seen it yet, take a look at it above. It’s terrific.
And I know a lot of you are thinking, this seems like a really great way to promote your movie/tv show/webpage etc. And it is, when done right. But a project like this raises a lot of possible legal issues that must be dealt with. You may not see them in the video, but I’m sure there were a lot of lawyers who weighed in before, during and after the filming. Let’s discuss some of the issues that I can spot right off the bat.
RIGHT OF PUBLICITY
While the video, for the most part, appears to be just a viral video, like so many others, in reality, and as made obvious at the end of the video, it is a commercial for the remake of Carrie coming out on October 17. Since this is a commercial, the use of people’s images in the commercial without their permission will trigger their right of publicity, which in California is codified at Civil Code Section 3344. This statute says that if you use someone’s image in a commercial without their consent, you are liable for any damages incurred by them (a minimum of $750) and also any profits attributable to the unauthorized use. You can also be liable for punitive damages and for attorney’s fees in any lawsuit brought to enforce these rights. Most other states have similar statutes.
But there is a simple solution to this problem. Just have everyone that you want to put in the video sign a release. So what you are not seeing in the video is the hoard of PA’s standing outside the coffee shop waiting to pounce on anyone leaving and getting them to sign a release allowing the use of their image in the video. Without that, you could have a big problems.
A special problem that is inherent to filming something like this in Los Angeles is that a good percentage of the people you film may be members of SAG. If you have already cast SAG actors in your video (and I’m pretty sure that the main woman and the stuntman being thrown up the wall are SAG) even if you got releases from the coffee shop patrons, if they were also members of SAG the release would probably be invalid and you would be required to pay them a day fee and residuals. So one of the questions you need to ask people when obtaining a release is whether they are members of SAG. Also, don’t film this at the Coffee Bean and Tea Leaf at Sunset and Fairfax.
Some states (including California) have laws that state that it is illegal to record a confidential conversation without the consent of both parties. Doing so can actually trigger criminal liability. Such “two-party consent” states make it problematic to film these sorts of Candid Camera type events without some sort of relese signed in advance. The Carrie video was filmed in New York, which is a “one-party consent” state. A list of which states are two-party consent can be found here.
If you were planning on filming a video like this in a two-party consent state, it can be done, but you need to make sure that you are only picking up audio from your actors and not from the onlookers.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, while these pranks can be fun, sometimes they can cross the line. In the Carrie video, all the actions are directed to the other actors, and not to the innocent coffee shop patrons. But sometimes, as in the Friday the 13th video above, people think it would be funny to scare the crap out of random people on the street. While most people who get scared won’t sue you, all it takes is one person to freak out and have you dealing with lawsuits for the next year or more. So try not to let things get out of hand, don’t scare little kids, and if one of your victims is freaking out, stop immediately.
Personally, I think that these type of videos are the best way for someone to break through the advertising clutter and gain attention for their project. But make sure you speak to a lawyer before doing your own, or the prank may just backfire back on you.