I am working on a project that requires me to email subscribers asking for video testimonials of our product. We will of course be using the testimonials for advertising, and this will be clearly stated in the email.

As someone without any legal expertise I imagine some kind of consent might be necessary to use and publish these videos. However, it seems rather silly to me to require a separate consent form, when the email already explains what the videos will be used for and anyone who does not consent would simply not respond to the email. Additionally, asking people to print, sign, scan, and email back a paper form when they are already doing us a favor would greatly complicate the process and is likely to significantly decrease response rate.

Can I assume that by submitting a video the submitter implies consent for us to use the video in the manner we described? Or alternatively, is there some kind of short statement I can include in the email to make sure we're covered?

I live in the US, and all subscribers also live in the US. It is possible that some video submissions may be from minors, and we would still like to use these submissions if possible.

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    It will probably vary from state to state (both based on the person's state and where you're based), but I would strongly recommend going the safe route and having them submit release forms (including parental consent forms for minors). – childofsoong Jun 27 '16 at 1:56

There are two main concerns: copyright restrictions on distributing stuff that other people made, and publicity rights to use other people's picture and voice to promote a product. Both restrictions reduce to the fact that you need the rights-holder's permission to use the material. It is not required that the permission be written on paper or that it be signed, though those are two of the most bullet-proof ways of establishing permission. If you claim that you have permission, the court would want to see that permission, which would be some statement by the rights-holder that they permit you to do the thing that you intend to do. It is not enough that the person has emailed you a video, because they might not know that you have in mind showing it on television. It is also not quite enough that the email they send you has some text somewhere (which you write), saying that you intend to use the video in such-and-such way. The question would be, did they actually see and understand that bit of text, or might they have misunderstood what your intent was? On a web page where you click "I agree", the agree button needs to be next to what they agree to so that they don't have to go hunting for the terms. Same would go with an email.

I suspect that an email (from you) like this would suffice:

Dear Tom,

Can you send me a 1 minute testimonial video about our product, which we will use for advertising? We will use your real mane, we may modify the video, we will use it on television, and post in on the interwebs. At any point if you want us to stop using the video, email me at crazy.jack@carsales.org or call me at 234-567-8910. Please reply, including this email, and say "Yes, I agree", above your signature. Also please include your real name.

You need to get a lawyer to draft this if you want to go this way: I just want to point out that you're making a big and wrong assumption about what they have agreed to, by sending you a video. You need to say explictly what you're asking permission to do, and then you shouldn't do anything that you haven't been given permission to do. You need explicit permission: people do things for all sorts of reasons, so while it's reasonable to assume that a person wouldn't give you a video in response to a solicitation for a testimonial, you should think in terms of what misunderstandings could arise.

  • Thanks for the feedback; I will keep all of this in mind. The actual submission of the video will be done through a webpage, so as an alternative I was thinking I could include an "I have read and agree to the statements in the consent agreement" checkbox on the page, with a link to the consent agreement. Would this be a stronger alternative to the email method? – tlng05 Jun 27 '16 at 2:18
  • Yes, vastly better. – user6726 Jun 27 '16 at 4:44

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