Dave Winer, one of the fathers of podcasting, is calling out video podcasters and vloggers for becoming “everyday papparazzi”:

The video cameras are so cheap and so are Internet connections, we’re heading to a place where even the most casual of encounters may be captured and broadcast.I want to just be a normal schlub, sitting in the audience, maybe contributing something once in a while, and publishing my art on the Internet, for my own pleasure, and that of anyone who happens to be looking in.

Why mention this now? Why should you care? Because soon you’re going to have to decide whether you’re a celebrity or a schlub. And you may not have a choice but be a celebrity.

My request: If you point a camera at someone, ask for permission before you start recording, and if they say no, don’t turn it on, smile and say “No problem.”

While we’re strong advocates of the power and importance of indie media creation, we also understand Winer’s desire to be allowed to go to an event and just be a schlub (A person regarded as clumsy, stupid, or unattractive.)

Winer’s comments bring up an important issue for podcasters to be aware of. Podcasters have to balance a person’s natural desire to control how they are portrayed with the legitimate need to cover events. Colette Vogele’s excellent Podcasting Legal Guide provides some guidelines for dealing with the issues this raises…..

Publicity Rights Issues

A claim of right to publicity generally arises if you use another person’s image, likeness or voice in a podcast without their consent and for commercial purposes, which results in injury to the individual. (See EFF’s Bloggers FAQ for some recent cases where the right of publicity was at odds with the Constitution: http://www.eff.org/bloggers/lg/faq-ip.php). This means that if you use another image, likeness or voice as a way of advertising or soliciting your podcast, you will need the individual’s consent. First amendment (freedom of speech) rights allow uses of a public figure’s name or likeness so long as it is done (1) in a truthful way and (2) does not imply a false endorsement of you or your podcast by the public figure.

Right of publicity is governed by state law, which means that it can vary state to state. For example, in California, a plaintiff would need to show that your podcast (a) used the individual’s name, voice, signature, photograph, or likeness in your podcast (b) for purposes of advertising or selling, or soliciting, the podcast (or any other products or services), (c) without the individual’s consent. If the plaintiff proves her case, she is entitled to payment of damages (of at least $750), profits from the unauthorized use, and her attorney’s fees and costs.

The good news is that that law in California includes an important exception to the general rule that consent is required. In situations where the name, voice, signature, photograph or likeness of an individual is used “in connection with any news, public affairs, or sports broadcast or accounts, or any political campaign,” consent is not required. So, to the extent your podcast can be construed as “news, public affairs, or sports broadcast or accounts”, you do not need to obtain consent of the individuals. The language of this section is deliberately broad, so it is likely to apply equally to bloggers and podcasters as it would to traditional media, though this question has never been tested by California courts.

This explanation isn’t as cut and dry as podcasters might like, and the Guide comes with the disclaimer that nothing in it should be considered legal advice. Unfortunately, the courts are where gray areas often end up being settled.

Winer may want to be allowed to be a schlub and may not want to find himself showing up on Internet TV. However, when he or anyone else injects themselve into public events, consent to film is not required.

Other situations aren’t as cut and dry. At these times, Winer (and you or I) may have a right to just be a schlub. Video podcasters and vloggers should respect that desire and ask for consent, or risk becoming what Winer derides as “everyday papparazzi”.