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.