Legal use of public event videography on a company page

Question

It is clear to me that using photography from an event of an identifiable person requires explicit consent from the individual(s) if the photo is to be used for "commercial purposes". (see https://www.anthonyjohnsonphotography.com/blog/what-you-need-to-know-using-event-images-for-commercial-purposes).

When researching this in terms of videography, I am not finding much guidance. I assume this will follow the same rules as photography, but would like to confirm that is indeed the case.

Additionally, "commercial use" seems to be subjective. For example, if a company posts a video from an event and simply says

"Our Company would like to congratulate Acme organization on your latest event! Check out their video"

...with a link to the video, does that constitute commercial use?

Note: I'm talking about a California S-Corp is that matters.

Answer 1

The "right of publicity" is highly variable – it even has different names depending on jurisdiction. In the US, it is state-dependent, and what that right encompasses depends on jurisdiction. There is no such right in Oregon, there is a statutory right in Washington, and a common law right in Idaho. California has both. Cross-jurisdictional generalizations are thus highly perilous.

That said, I am aware of no jurisdiction that treats still photographs different from moving pictures. The right centers around "identifiable characteristics" of an individual. Under the "incidental use" doctrine, permission may not be required. Hence in Washington, under RCW 63.60.070, consent is not required if the use "is an insignificant, de minimis, or incidental use".

Under Washington's scheme, the conversation about your example ends before it starts because the right of publicity doe not exist for corporations, see RCW 63.60.010, 63.60.010 (individuals and personalities, not corporations). "Commercial use" is irrelevant, see §50 "An infringement may occur under this section without regard to whether the use or activity is for profit or not for profit". §70 states exceptions, which include things that are conceptually similar to "fair use" (in particular, "comment"). The legislature did not draw a bright line, leaving that to the courts. I don't find any case law in WA that addresses an alleged infringement that "X, which is a commercial operation, mentioned our name, without out permission", but a straightforward reading of the statues indicates that this is permitted, even when a business congratulates a named individual.