Not Tortious to Post YouTube Video That Includes Conversation with Homeless Man

From the long opinion by Chittenden County (Vermont) Judge Colin Owyang in Doe v. Deluca, decided Dec. 15 but posted on Westlaw a few days ago (an appeal is pending):

On March 18, 2025, DeLuca recorded a 29-minute video that included Doe and others standing in public view outside a homeless shelter and warming center on Pearl Street in Burlington. An approximately two-minute portion of that video captures Doe speaking and apparently recording or attempting to record DeLuca on Doe’s cell phone. The video shows other people closer to Doe than DeLuca who remains on or near the public sidewalk. Doe speaks to DeLuca who does not respond. DeLuca turned Doe’s speaking portion of the video into a YouTube “short” video. DeLuca posted both videos to his YouTube channel, for commercial profit according to Doe. Doe never gave DeLuca consent to record him or use his image….

The court rejected Doe’s intentional infliction of emotional distress claim:

Doe has alleged that (1) DeLuca’s “act of recording a vulnerable, homeless individual and exploiting their image for profit, without consent, can be considered outrageous and intolerable,” and (2) DeLuca’s “actions have caused the plaintiff, Jonn Doe, severe emotional distress, including anxiety and PTSD.” ….

“Vermont recognizes the tort of intentional infliction of emotional distress. To prevail, plaintiff must demonstrate ‘outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.'” “To satisfy the IIED standard, “[p]laintiff[] bear[s] ‘a heavy burden that requires … show[ing] that the [defendant’s] conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable.'” …

The videos show DeLuca recording a group of people in public view, including Doe. DeLuca speaks in a conversational tone at the intended audience of his videos, not to Doe or the people around him. Doe speaks to DeLuca and appears to record DeLuca on Doe’s phone. Throughout the exchange, DeLuca remains on or near the public sidewalk and several other people appear physically closer to Doe than DeLuca, contextualizing that DeLuca maintained socially appropriate physical distance from Doe during the recording.

This court holds that a now commonplace occurrence like DeLuca’s recording by cell phone of Doe in public and posting it online without more does not constitute as matter of law the sort of objectively outrageous conduct required for an IIED claim….

The court likewise rejected plaintiff’s right of publicity / commercial misappropriation of identity claim:

“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” Yet “[n]o one has the right to object merely because his … appearance is brought before the public, since … [it is not] in any way a private matter and … [is] open to public observation.” Similarly, “[t]he incidental use of a person’s name is not … grounds for liability. It is only when [the defendant] makes use of the name to pirate the plaintiff’s identity for some advantage of his own … that he becomes liable.” Likewise:

[N]or is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity …. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes….

“There are of course incidental uses of people’s likenesses in commercial advertising, such as a photograph of a busy street where certain pedestrians may be recognizable, and in such a case there could be no liability.” …

DeLuca’s 29-minute video captured Doe for about two minutes—the length of the “short” video. In both, however, Doe appears as one of several incidentally recorded people in public view. The videos do not intentionally “feature” Doe or anyone recorded like the plaintiff in Staruski. Instead, Doe and the others appear in DeLuca’s videos “of a busy street where certain [people] may be recognizable, and in such a case there c[an] be no liability.” If anything, Doe’s own actions (not DeLuca’s) in speaking to DeLuca make Doe a more prominent but still incidental figure compared to the others. That DeLuca operates a YouTube channel on which he posted Doe’s incidental likeness does not mean that he “become[s] liable under the rule stated in this Section to every person whose name or likeness [he] publishes.” …

And the court rejects Doe’s claims against YouTube, largely on § 230 grounds.

Note that this case likely shouldn’t have proceeded pseudonymously (see this recent post about the Vermont law on this), but the question of pseudonymity doesn’t appear to have come up in the litigation.