WHY RECORDING PEOPLE IN YOUR CAR MAY BE ILLEGAL
Nasir Pasha & Matt Staub

Why Recording People In Your Car May Be Illegal [e103]

The guys end the week talking about why the valet mode in Corvettes may be illegal in some states.   I want to make a short web series that is similar to a popular TV show. How much should I be worried about copyright infringement?”

Transcript:

NASIR: All right. Welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to ask@legallysoundsmartbusiness.com. My name is Nasir Pasha.
MATT: And my name is Matt Staub and we do answer some of our questions as well. I heard what you’re going with that intro.
NASIR: Nice! So, this is our Friday episode where anything can happen, including covering business legal topics in the news and answering business legal questions, including that as well and many other things.
MATT: It sounds eerily similar to every other episode we’ve but that’s all right.
NASIR: No, no, it’s Friday, so add a little spice to it.
MATT: Yeah, we’ve got a pretty cool story and I didn’t know – you know this better than me because you own, what? Five Corvettes.
NASIR: Actually, four – I lost my fifth one.
MATT: Well, that’s too bad. Well, maybe if you would have use the valet mode, then you have known where it went. But, apparently, this could be illegal, too. I wasn’t aware of this, apparently, for the latest Corvettes that has been released, they have this thing called “valet mode” which basically, you get out of your car, you can turn on this little thing, you can basically kind of track everything that happens. I think you can even record the audio of inside the car of what’s said and, obviously, you can just see what’s going on. Basically, they don’t want the Ferris Bueller situation where the valets take the car for a joyride. So, that’s valet mode but, apparently, looks like this could be illegal because you can’t record video without the consent of both parties involved in some states. I think there’s eleven states, right? Yeah, eleven states in which both parties are against this. Obviously, you’re going to consent as the car owner but are the valet drivers going to consent? I don’t know, maybe they will, maybe the wont. But the problem is they need to.
NASIR: And so, I’m just wondering, like, if you’re in a two-party consent state like California, if you are close to the border, you know, you can just valet to another place, but then why would they do that? With the Corvette, you can get there pretty quick.
MATT: How long are the valet processes you’re thinking of?
NASIR: I’m just trying to imagine how different Ferris Bueller’s Day Off would be in the event they had this valet device.
MATT: It is pretty interesting though. I mean, I obviously understand the law that you need to have both parties to consent. But, at the same time, this is a car that you owned – or at least presumably you’re leasing – you have some sort of ownership on it. It’s your private car, you should have a little bit of a right to record what’s going on to see if somebody is, I mean, I guess when you walk into, what’s the difference between this and a store that’s recording video of customers that are walking in and out? People are consenting to that. Maybe they are implicitly, I don’t know.
NASIR: Well, yeah. For some reason, audio is treated differently. Video is one thing because you may be in public. But then, audio, if you’re having a private conversation, for whatever reason, the law treats a little bit differently because there’s a little bit more expectation of privacy and so when you are recording inside your store or whatever, you do have to have proper notices. But, you know, not all states are like that. I mean, like you said, it’s only ten states, I believe. Texas and New York, for example, are classically one-party consent states and I understand what that means is that one party of the conversation so that means that you can’t eavesdrop or wiretap as the third party unless one of those two people or more that are speaking knows that you’re recording them. So, for example, if you park your Corvette in valet and you turn on this service, you have to actually sit in the car with them and let them park the car because then you’re one of the parties and you are aware of the actual recording.
MATT: Yeah.
NASIR: that’s one way to get around it.
MATT: Well, that’s basically GM’s – they sent letters out to these owners and said, “Yeah, just ask them. Obtain consent from the valet drivers before you turn it on.” It’s like, well, that kind of defeats the whole purpose, right?
NASIR: Yeah.
MATT: I guess, once you tell them and if they do, what happens in this situation? You just tell them, “Hey, can you consent to this?” and they say no and then you’re just sitting there like, “Well, this doesn’t seem good for my car.”
NASIR: exactly. Well, I would just tell them about the device and then hand them the keys because I think by accepting the keys and driving it, they’re giving their consent. Don’t hold me to that, that’s not legal advice.
MATT: I don’t like valeting cars because they just drive so recklessly and they just peel out every time and you can hear them squeaking around turns just because they’re going so fast but I get there’s supposed to be speed but…
NASIR: You know, I didn’t use to valet my car until I got to Houston because it seems like you almost have to valet your car and you’re looking for parking spaces for half an hour and what they do is they take a regular parking lot and put cones in front of each space. And so, when we first got here, I’d say, “Why are all these cones here? You know, it’s all these parking spaces,” and I move the cone and I park my car and then this valet guy was like running after me saying I couldn’t park my car there and I was like all confused and I was like, “Well, what are those all spaces for?” So, it’s kind of really like what you do around here.
MATT: You know, I’ve seen you valet your car in San Diego before so I don’t know how much I believe that.
NASIR: The first time ever has been in Houston – never. Actually, at the university club in San Diego. That’s true. Good call.
MATT: Yeah, every single time. I lived in walking distance but I’d always wait with you while you’re waiting for your car and then you would get in and drive like ten feet and stop and say, “Do you want a ride?” every single time. It was so funny but I always walk so I didn’t mind.
NASIR: Not every single time, a couple times, I would realize, like, “Why don’t I just give you a ride?” Yeah.
MATT: I was always close.
NASIR: I don’t think it was every single… I think it was like, once or something. Was it more than once?
MATT: I thought it was funny.
NASIR: that is funny, though. All right. Do we get to our question? Was that our question? “How often you valet?”
[MUSIC]
MATT: Question of the day.
“I want to make a short web series that is similar to a popular TV show. How much should I be worried about copyright infringement?”
NASIR: Huh, copyright infringement? I wonder what kind of show he plans on making.
MATT: Yeah, and it’s like the majority’s questions – you know, we don’t get all the fact so we don’t know. I just kind of thought in my mind when I read it, it’s a parody-type show or maybe they’re making a reality show that’s similar to like Amazing Race or something. I don’t know. I guess that would still be a parody, possibly.
NASIR: You know, this reminds me, I mean, copyright in show business is always kind of touchy, right? And even in music. But how many movies are pretty much exact copies of each other, right? But there are legal standards of what makes a difference, and depending upon how similar, I think you’re relating this issue of parody and so that might be a copyright exception of what’s called fair use. And so, when it comes to fair use assuming that they are similar or same, the size of the reasons as to what it’s for – whether it’s for parody or not – but also how substantially the similar is it? And these are all very highly fact-specific, right? I mean, even when it comes to music, I mean, there’s a whole science to it. I mean, how many notes and in what rhythm and how fast or slow these notes are are gonna help determine whether there’s a copyright infringement. In the same case, when it comes to your…. I got distracted because I started thinking about this one potential client that contacted me – without giving any too much detail – he was definitely crazy because he was talking about this one movie that basically he had about twenty or thirty pages outlined for me and I know I wasn’t the attorney he spoke to where he basically was convinced that this movie was about him and that someone stole his life story and how he drew relations to it and the numerology of it got kind of crazy and, I don’t know, it was pretty funny. That’s the general point, right? How similar actually, is it?
MATT: Yeah. Well, now I’m thinking about what movie it was.
NASIR: I’ll tell you after the show.
MATT: Oh, I’m looking forward to that.
NASIR: It’s confidential.
MATT: Yeah, it’s similarity. I mean, there’s something that’s popped up fairly recently with the dispute with Gilligan’s Island. Someone was saying there was copyright infringement there and it’s such a tough call on these. I mean, how do you tell whether one person’s screenplay or script or what-have-you is infringing on another one that’s already existed?
NASIR: Yeah.
MATT: It’s not like a trademark where you can just look and see at the name. It’s like, “Oh, this name is the same or this logo is the same,” but let me reread the question. “How much should I be worried?” I don’t know, somewhat worried?
NASIR: I think that’s right because copyright infringement is something that can easily be avoided by just making it as much different as possible, right? And I know that it’s kinda like a Lucy goosy answer there. But that’s the reality is that there’s no set of definition of what exactly is copyright you can look at a certain case law that applies in different cases when it comes to TV shows, et cetera, or plotlines or what are they called? The actual transcript?
MATT: The script.
NASIR: Yeah. You know, how different the script is and so forth. But I think, if you just make it substantially different or focus on the parody fair use aspect, you can probably get away with it.
MATT: There’s your answer.
NASIR: There’s your answer. Get away with it.
All right. Well, thanks for joining us for the week and Episode number 103.
MATT: Yeah, keep it sound and keep it smart.

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