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Tuesday, June 19, 2007
Legal Issues of Unauthorized Kobe Bryant Video

Last week, a website named "The Official Kobe Video Website" appeared. It is offering the sale of an unflattering video of Kobe Bryant, purportedly taken in late May outside a shopping center in Newport Coast, California, in which Bryant has an impromptu conversation with a small group of fans. During his conversation, Bryant disparages his employer, as well as a number of his teammates. He saves his most vitriolic remarks for Andrew Bynum, the Lakers' highly touted 19-year-old center. Bryant insists that Lakers should "f---ing ship his ass out."

As reported by Howard Beck in today's New York Times, the men responsible for the video--a few guys in their early 20s who are unwilling to identify themselves--do not believe that Bryant was aware of the video being taken. Those same men contend that someone offered to buy it from them for $100,000 in order to keep it private, but they refused, and instead intend to make it available to anyone willing to spend $1.99 to watch it, provided they receive 50,000 orders. It's unclear how many orders they have thus far received. It's also unclear if the video is all that entertaining, since other than a consistent flow of swears and some unvarnished remarks about teammates, Bryant has offered similar, albeit less explicit, commentary on his blog. Still, as ESPN's Henry Abbott writes today, the video strikes many as a distasteful attempt at "gotcha" journalism.

Could Bryant successfully sue the Kobe video guys? "Miss Gossip" over at AOL FanHouse is a student at Stanford Law School, and she addresses that issue in a post today. Here is an excerpt:
If the goal is to sell the video to a media outlet, then Kobe could sue for money damages or an injunction preventing the release of the video. As a celebrity he has a legal right in his own publicity image -- he can't stop you from showing his image on the news, but he can stop you from profiting from his image without his permission. The KVG guys told [FanHouse's] Brett that Bryant didn't know he was being filmed -- which sure sounds like he did not grant his permission for them to disseminate the video for profit.

Additionally, you have the super-legal argument that these KVG guys are just plain dumb. Why would thousands of people pay for the video when five minutes after its release they could probably see it for free on the FanHouse?
Miss Gossip is alluding to the right of publicity, which is the use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage. As Rick recently examined in regards to Drew Brees' efforts to avoid having his image used to promote his mom's congressional campaign, the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. The right varies in strength by state, but it would be an avenue that Bryant could consider, in the highly unlikely event that he sought legal recourse. A key question would be whether the video is providing a newsworthy purpose (see Rick and Howard's debates on that subject) and to what extent Bryant's celebrity status diminishes his legal right to privacy. Also, some states, like Illinois, have passed High Tech Peeping Tom laws, whereby is it illegal to record or transmit live video images of a person without his or her permission--but the catch is that the person must be in a "private location" and Bryant was not.


You mention some states with laws where it is illegal to record someone. There are states in which it is a felony to take an audio recording of someone without the person's knowledge or permission. Does California have a similar criminal statute?

Anonymous stateoflove_N_Trust -- 6/19/2007 10:17 PM  

I'm guessing Kobe won't pursue legal action...he probably leaked the footage to force a trade on the lakers.

Blogger Greg. -- 6/19/2007 11:42 PM  

I was under the impression that any pictures or video taken in a public place is fair game. If I get hit in the groin by a football in the park and someone videos it and wins $10,000 on America's Funniest Home videos, can I sue for the winnings?

Blogger Scrumtrulescent -- 6/20/2007 12:26 AM  

Absolutely this violates the right of publicity. The cause of action requires that the plaintiff have "commercial value" in his/her identity and that the defendant is exploiting that value for a commercial advantage.

Scrumtrulescent, you and I lose on your video hypo because our identities hold no commercial value. The commercial advantage is being obtained based on getting hit in the groin with a football, not because it's you or I getting hit.

When the Kobe video is being marketed I'm sure his name is highlighted all over the place. It wouldn't sell if it was sold simply as, "Listen to this guy on the street make disparaging remarks about his employer."

The Kobe video is also not protected by the First Amendment, like the Barry Bonds "Game of Shadows" book or the Tiger Woods painting, because there is no "expression" element that deserves protection as is the case with books, paintings, parodies, etc.

Blogger Rick Karcher -- 6/20/2007 6:18 AM  

Prof. Karcher,

I would agree that this is a violation of the ROP. But, newsworthiness poses a big problem here does it not? Kobe's problems with the Lakers are constantly in the news, and this video seems to feed into that controversy. The fact that there is a commercial element here would not bar the "journalists" from hiding behind a newsworthy purpose.

The key question to me is whether you you can make a distinction between news as reported in traditional news outlets and newsworthy material beeing offered for a low fee on a website.

Would we have this discussion if the person who took the video sold the footage to CBS or NBC for 100,000? I doubt it. Instead we come back to the unconventional outlet.

So while I agree that this is a violation of the ROP, Im afraid that once again the courts would decide in favor of newsworthy content.

Blogger Jimmy H -- 6/20/2007 1:18 PM  


Excellent point. The newsworthy component is definitely stronger here than it is in other contexts (such as fantasy league use). The question is whether the primary purpose for the video is to inform the public about what he said or is it to gain a commercial advantage. My personal view is that it's the latter.

Blogger Rick Karcher -- 6/20/2007 2:23 PM  

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