Using a Hidden Camera to Record Product Endorsements for Commercial Use

Hello from Washington State. My company pioneered a new packaged food product and consumers love it. I've sold it to stores and run demos (in this state and elsewhere).

We are running a food sampling event. Usually people stop by, try it, and really give us sincere complements. They love it.

I believe I can not put a hidden camera behind our demo booth then produce a video with the faces of these people giving their unscripted endorsements. Correct?

I have another idea. Put a little microphone on the table. Record what people say about our product, then produce a video where I simply play clips of only the voice recordings. Is that OK?

Any feedback is appreciated.

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Quoting eagles

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I believe I can not put a hidden camera behind our demo booth then produce a video with the faces of these people giving their unscripted endorsements. Correct?

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Correct.

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Quoting eagles

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I have another idea. Put a little microphone on the table. Record what people say about our product, then produce a video where I simply play clips of only the voice recordings. Is that OK?

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No.

It's illegal in WA.

http://www.rcfp.org/reporters-record...ide/washington

Might be legal in other states but you would still need the consumer's consent to use the recording to promote your product.

What you CAN do is record video and audio of the consumer reactions and then reveal to the consumer right then that you have done that and ask them if you can use their testimonials to promote your product.

If they say yes, hand them a prepared written consent form for them to sign.

If they say no, erase the recording in their presence.

you cannot surreptitiously record a conversation where the parties have an expectation of privacy. Out on a street where the general public is around one generally has no expectation of privacy but that is not necessarily always the case. If there are no others around and the speech is performed in a manner such as to prevent others from hearing it, there may be a right of privacy issue.

then you have issues of publicity rights of the parties involved. Why would you think they have any less rights to their voices than their faces? In fact, Washington has a law addressing this:

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RCW 63.60.010 Property right — Use of name, voice, signature, photograph, or likeness.

Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. Such right exists in the name, voice, signature, photograph, or likeness of individuals or personalities deceased before, on, or after June 11, 1998. This right shall be freely transferable, assignable, and licensable, in whole or in part, by any otherwise permissible form of inter vivos or testamentary transfer, including without limitation a will or other testamentary instrument, trust, contract, community property agreement, or cotenancy with survivorship provisions or payable-on-death provisions, whether the will or other testamentary instrument, trust, contract, community property agreement, or cotenancy document is entered into or executed before, on, or after June 11, 1998, by the deceased individual or personality or by any subsequent owner of the deceased individual's or personality's rights as recognized by this chapter; or, if none is applicable, then the owner of the rights shall be determined under the laws of intestate succession applicable to interests in intangible personal property. The property right does not expire upon the death of the individual or personality, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right. The right exists whether or not it was commercially exploited by the individual or the personality during the individual's or the personality's lifetime. The rights recognized under this chapter shall be deemed to have existed before June 11, 1998, and at the time of death of any deceased individual or personality or subsequent successor of their rights for the purpose of determining the person or persons entitled to these property rights as provided in RCW 63.60.030. This chapter is intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death.
[2008 c 62 § 1; 1998 c 274 § 1.]

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you should sit down with a lawyer and run your ideas past them before instituting anything.

Thanks for the response. The location is a public venue in fact we are participating in a "food fair" advertised as such. If someone says they like our product and that statement is typed out verbatim on a video, and audio is played, then the only issue is that someone can recognize their voice and say "hey I don't like my voice on your video". Or can anyone come along and say " hey it wasn't my voice on your video but I still don't like what you did".

Is the law referenced intended for this? I think the law is meant to prevent recording of a different nature (phone calls), for example every time I call customer service they say the call is recorded for quality control. Perhaps we can place a microphone at the food fair with a statement that we will archive and use the voice conversations that occur.

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Quoting eagles

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Thanks for the response. The location is a public venue in fact we are participating in a "food fair" advertised as such. If someone says they like our product and that statement is typed out verbatim on a video, and audio is played, then the only issue is that someone can recognize their voice and say "hey I don't like my voice on your video". Or can anyone come along and say " hey it wasn't my voice on your video but I still don't like what you did".

Is the law referenced intended for this? I think the law is meant to prevent recording of a different nature (phone calls), for example every time I call customer service they say the call is recorded for quality control.

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The law applies to both oral and electronic communication. Read the actual statute:

http://apps.leg.wa.gov/RCW/default.aspx?cite=9.73.030

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Quoting eagles

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Perhaps we can place a microphone at the food fair with a statement that we will archive and use the voice conversations that occur.

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That might get you past 9.73.030 but you will still need written consent to use the recording for promotional purposes under RCW 63.60.010.

Have your consent forms with large easily readable type (and pens) prepared in advance and have them on the presentation table next to the microphone and sign. That way people get psychologically used to seeing the forms in front of them and can be easily segued to a signature.

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Quoting eagles

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Thanks for the response. The location is a public venue in fact we are participating in a "food fair" advertised as such. If someone says they like our product and that statement is typed out verbatim on a video, and audio is played, then the only issue is that someone can recognize their voice and say "hey I don't like my voice on your video". Or can anyone come along and say " hey it wasn't my voice on your video but I still don't like what you did".
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YOU CANNOT USE THEIR VOICE WITHOUT THEIR PERMISSION without violating the law.


I can't make it any clearer

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Quoting jk

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YOU CANNOT USE THEIR VOICE WITHOUT THEIR PERMISSION without violating the law.

I can't make it any clearer

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They're always looking for loopholes instead of just going the extra step and doing it right.

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Quoting eagles

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Thanks for the response. The location is a public venue in fact we are participating in a "food fair" advertised as such. If someone says they like our product and that statement is typed out verbatim on a video, and audio is played, then the only issue is that someone can recognize their voice and say "hey I don't like my voice on your video". Or can anyone come along and say " hey it wasn't my voice on your video but I still don't like what you did".

Is the law referenced intended for this? I think the law is meant to prevent recording of a different nature (phone calls), for example every time I call customer service they say the call is recorded for quality control. Perhaps we can place a microphone at the food fair with a statement that we will archive and use the voice conversations that occur.

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You are not understanding what is being explained to you. You want to use people's reactions to the product, without their permission, to promote the product and therefore increase your profits.

You cannot do that without their permission. As someone else suggested, you can video tape first, and ask their permission immediately afterwards, but if they say yes, you need them to sign a release, and if they say no, you need to immediately erase it in front of them.

It would maybe even be wise to offer them something in exchange for their permission. It doesn't have to be cash, it could be free product at a certain dollar value.

There is also another option, if you are afraid that you won't get real reactions if the other people in the area keep hearing you explain it to others. You can tape, and ask people to sign up for a raffle, or other type of promo so that you have contact information for them. If they don't sign up, you erase them from the video immediately. If they do sign up, then you contact them afterwards for permission. However, if you do that, then you need to be able to identify them on the tape, so you would have to figure out a system for that. It might be something as simple as saying wow...thank you, what is your name?

There are lots of ways to get real reactions and still get proper permission to use them. Admittedly its a bit more difficult at a busy place like a food fair, but it can be done.

Thanks LLW. I had thought of this. Our product is expensive. I mean about $20. So we could say to someone, hey we just recorded your verbal reaction after tasting it. Now if you agree to allow us to use the audio recording, we will give you this free sample pack.

I want to know why you recommend a written agreement, if the person says yes. We have his/her verbal consent at that point.

Thanks.

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Quoting eagles

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Thanks LLW. I had thought of this. Our product is expensive. I mean about $20. So we could say to someone, hey we just recorded your verbal reaction after tasting it. Now if you agree to allow us to use the audio recording, we will give you this free sample pack.

I want to know why you recommend a written agreement, if the person says yes. We have his/her verbal consent at that point.

Thanks.

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so, if you have a verbal agreement, what do you show the judge if they sue you and say; I never agreed to anything.