Yesterday, I told you about Clifford Greer's missive to the PBNR e-mail list, threatening legal action against a company that, he says, is trying to sell DVDs of PBNR participants. Per his e-mail:

During assembly at Lemon Hill, a video production company called WAPtv (Wild About Philly) shot footage of a number of riders. As far as we know, no one was filmed without permission. WAPtv has produced and is selling a DVD of their footage.

We have seen this DVD and we feel that its content is not in the spirit of our event, and that the riders filmed were not informed that this video would be for sale publicly.

We have sought out volunteer legal assistance in order to halt the sale of this video. The next step for us is to identify those amongst you who are willing to pursue this on an individual basis.  If you know you were recorded by WAPtv and do not wish to have your image distributed commercially, please reply to this email with your contact information and full name, include your telephone number please.

I was, of course, generally dismissive of his complaint. In public spaces, you generally abandon your right to privacy. So, assuming Greer's allegations are true, while the video company may have violated, well, every tinge of decency left in humanity, legally, they have the right to do so. But just to make sure I was interpreting the law correctly — and I tend to be a pretty adamant free speech kind of guy — I ran the scenario by a lawyer acquaintance who does work in the constitutional/First Amendment law field down in Florida, Derek Brett. His response is below:

Generally, I agree with you — the people are parading around in public, and there is a general loss in the expectation of privacy. Now, can this loss of privacy be contained? Certainly, the individuals expected to be seen in the moment by spectators — or potentially covered (pardon the reverse pun) briefly within the local press (which would never have exposed their private parts on-screen (for fear of FCC backlash).

However, the question then becomes whether or not there was a reasonable expectation that their exposure would become the subject of mass commercialization and whether — a la those gotcha/candid camera TV shows — the individual must first consent to the commercial publication of their images, from head to toe.

The question — as I replied to Derek — seems to be whether or not participating in something billed as the “Philadelphia Naked Bike Ride� override the “reasonable expectation that their exposure would become the subject of mass commercialization� to which he alludes?

That is a factor that can be legitimately argued in the defense of a civil law suit against the publisher/producer of the content. In other words, “perhaps.�

FOLLOW-UP: Do the Naked Bike Riders have a point, after all?