YouTube, Facebook and MySpace have all made individual uploading of video (and audio) to the internet very simple and very popular. You've captured some video and audio with A-1 Hidden Camera's innovative products and you're ready to share it. But before you start making plans to post your recordings, you'll want to make sure that you won't be creating a legal headache for yourself.
Your first consideration should be whether or not the recording itself was done legally, regardless of whether the recording was made by you or someone else. The federal 1986 Electronic Communications Privacy Act makes it illegal to possess or divulge the contents of any illegally intercepted communication. (There may be an exception to this law in situations dealing with matters of public concern and proposed criminal acts – such as video of government officials conspiring to commit fraud – but this is still a gray area of the law.)
Video cameras are generally not illegal if they are visible and in a non-private place like the kitchen or living areas of your home. Covert cameras (like "nanny & granny cams") are usually acceptable from a legal point of view, unless the person being recorded has a reasonable expectation of privacy. Federal law makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. Most states now have similar laws.
If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction. Consent can be implied if a conversation is in an open, public area.
Even if the recording was made legally, you must still continue your analysis. A second consideration to be made is whether anyone who appears in the recording has a right to publicity claim. The right of publicity is the legal right to limit the public use of one's name, likeness and/or identity, particularly for commercial purposes. Publicity rights have been recognized in at least 28 states.
As one might expect, New York and California are two states that regularly deal with right to publicity issues. California Civil Code authorizes a cause of action by any living person whose name, photograph, or likeness (which would include video) has been used for commercial purposes without his or her consent. Heirs of deceased people can also enforce the right of publicity.