Legal Rules for Creating Flash Mobs and Performances

By: Guest | April 24, 2012 | 

Jay PinkertToday’s guest post is written by Jay Pinkert.

The founder of psychoanalysis, Sigmund Freud, hypothesized that two conflicting desires motivate human behavior: Eros (the life drive) and Thanatos (the death drive).

Were he alive today, Freud undoubtedly would add a third: Viros (the drive to create viral videos).

Marketers experience Viros more acutely than other people because they have to manage not only their own drive to capture Internet lightning in a bottle, but also their clients’ drive to do the same.

No matter the ROI of viral video is notoriously unpredictable and ephemeral, even if the video is a hit. The heart wants what it wants, and now it wants trending topics on Twitter, YouTube hits, and Facebook shares.

Recordings of flash mobs, smart mobs (their commercial publicity counterparts), pranks, and other guerilla performance activities now comprise their own entertainment genre, and their transgressive nature is central to their appeal.

So, as growing numbers of marketers and average folks chase fame and/or fortune with handheld video recorders and mobile phones, they are also courting new and unexpected legal risks – and a new legal niche.

Ruth Carter, a Phoenix-based attorney and legal blogger specializing in the law of flash mobs and pranks, says:

From the [event] organizer’s perspective, the biggest misperception is the idea you can do whatever you want as long as you have good intentions. Your actions matter more, and you can be arrested for breaking the law even if you meant no harm. Additionally, some people assume they can do whatever they want in a public place.

For example, “offensive touching” is a criminal offense. While the name sounds dirty and insidious, the definition covers any intentional touching of another person either with a body part or an instrument, knowing that you’re likely to cause offense or alarm. Think “glitter bombs.”

Carter describes flash mob and prank law as a combination of criminal, property, tort, First Amendment, intellectual property, and entertainment law – fraught with gray areas and tradeoffs between rights and responsibilities – and ripe with opportunities for misunderstanding and unintended consequences.

Her advice:

  1. Never assume your flash mob or prank is legal. Always look up the applicable state and local laws. When in doubt, consult an attorney.
  2. Be prepared for encounters with the police. Know what they can and can’t do and be ready to respectfully explain why what you’re doing is legal.
  3. Make sure your participants know their dos and don’ts going into a flash mob or prank.
  4. Even if you’re confident you’ve not broken any laws, treat any encounter with law enforcement seriously. If you are arrested, immediately tell law enforcement you’d like to exercise your right to remain silent and ask to speak to an attorney. Don’t say anything to anyone until you speak with an attorney.

Do you have any cautionary tales about the legal pitfalls of viral video gone bad?

Jay Pinkert is a principal with Shatterbox, an Austin-based marketing and communications consultancy that helps professional firms and small businesses generate leads and distinguish their brand through content-driven programs. You can find him on Twitter @FollowtheLawyer and @Shatterboxvox.

  • This was a wonderfully written piece and though I’m not in the business of tossing glitter bombs or creating flash mobs, I found it interesting.
    I think a similar piece could be written about the misconceptions of copyright law as it relates to photographs and taking photos.  The Eiffel Tower at night is verbotten.  You can take a picture and share it with friends and family, but they hold the copyright to the light show, so using it on a blog that has ads which may or may not generate a profit, is breaking their copyright.  (At least this is my understanding from discussions in the forums of stock photography site, istockphoto)
    I got off track there.  I think that most people, given the information, will make every effort to be compliant with the law.  More posts like your will help keep people from stumbling…or dancing…into trouble.

    • FollowtheLawyer

      You are absolutely right. Preparation is not the enemy of creativity.

  • This is something I’ve thought about a lot, and particularly in light of this particular flash mob. I could just imagine this turning into a major disaster, on several levels.

    •  @KenMueller I found it rather upsetting until the end.  The football players really brought it home and made me laugh.  I wonder if they let the local authorities know about the pending gun play?

    • FollowtheLawyer

      @KenMueller As the London flash mobs/riots demonstrated, criminality is only one bad decision away — and viewable globally

  • I got sued by @KenMueller when I gave him a hot foot and filmed it and put it on Youtube.
    I am a fan of guerrilla marketing but only sensibly planned stuff. And it is false that any publicity is good. I wonder if the things that in NYC risk any law suits.
    Great post Jay so many of us shoot first and think later.

    • FollowtheLawyer

      @HowieSPM @KenMueller Thanks! You bring up an important point. Seeing envelope-pushing “success” stories can foster a false sense of security.

  • ginidietrich

    I, literally, laughed out loud when I read the third desire that motivates humans. Freud would be so proud!
    This is super helpful because the legal stuff is not typically something we discuss here. Thank you!!

    • FollowtheLawyer

      @ginidietrich Your laughter is a tonic 🙂

      It’s easy to hate on lawyers for being buzz kills (double meaning intended), but circumspection is not a bad trait when venturing into guerilla territory.

  • ginidietrich

    @WomenWhoTech xoxo

  • This was a great read/refresher, @FollowtheLawyer , thank you! Those of us who have a background in event management have followed these rules from the start, but particularly with so many people just diving into social media (a good thing) without necessarily a PR background to match (I think that helps, but of course, I’m biased :)), it’s really important to remember this stuff. I think many people also don’t realize how much planning and effort it takes to pull off one of these successfully… they don’t just “happen.”

    • FollowtheLawyer

      @Shonali You identified something very important: the instincts and heightened awareness that come with experience, and legal tripwires are easy for the untrained eye/mind to miss

  • PRNewser

    RT @jeffespo: Legal Rules for Creating Flash Mobs and Performances via @ginidietrich

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