If you’re one of the millions of people that log into a social media platform each day, it’s highly likely that you have encountered a rapidly growing number of live streams. Now that live streaming is available to anyone with a smartphone, the potential legal issues and concerns are much more relevant to the average person. This article gives you an overview of the intellectual property considerations present while live streaming your own content for others to view.
Live streaming refers to streaming video online in real time and encompasses a wide variety of topics including concerts, sporting events, video games, and/or even the routine and mundane aspects of one’s life. Television networks have full time legal departments to deal with issues such as these, so if you are engaging in live streaming it’s important to have a basic understanding of what issues might arise.
The right to publicly perform and display a copyrighted work are two of the exclusive rights that a copyright owner is entitled to. And a copyright owner has the exclusive right to reproduce and distribute a copyrighted work. Any of these rights could be infringed upon by a live stream. Because of this, the most important consideration is to ensure that you are only including authorized content in your live stream. Avoid streaming or including unoriginal or copyrighted materials and the re-broadcasting of background music, audio, or images that might be protected by copyright. For more highly produced live streams like pay-per-view sporting events, it’s important to have licenses for all music played over the live stream or ensure you are using royalty free music. Because live streaming generally does not allow you to edit the video, if you infringe someone’s copyright there can be very serious consequences.
Trademark infringement is generally defined as the unauthorized use of a trademark on, or in connection with, goods or services so it is likely to cause confusion, deception, or mistake as to the source of the goods and services. There are other, more intricate forms of infringement that include dilution and blurring that may also arise regarding live streaming. Simply displaying a logo or trademark does not constitute trademark infringement unless you imply a relationship with that party or show the mark in a bad light, however, as a best practice, avoid including or displaying third party logos or brands to the extent possible. If you’re working with a brand or logo and utilizing it in your live stream, it’s important to include trademark licenses in all releases and agreements.
RIGHT OF PUBLICITY/RIGHT OF PRIVACY
The related rights of publicity and privacy are also often a concern for live streaming. The Right of Privacy is the right to control information about yourself, regardless of how it’s shared. The Right of Publicity is the right to protect your name and likeness from being exploited for commercial gain. Regarding the Right of Privacy, “expectation of privacy” is the magic phrase. If an individual is in a public place, they rarely have an expectation of privacy. However, one’s expectation of privacy can depend on several factors including the specific setting, filming location, context, and circumstances. Streaming individuals without their permission could violate their Right of Privacy or Publicity under applicable state laws. Thus, it’s important to obtain release agreements for individuals in your live stream to the extent possible.
A host of other legal considerations include the distinction between commercial and non-commercial uses, location issues and releases, participant/audience releases, and FTC concerns that might arise because of a live stream. To mitigate any potential risk, we recommend that you be knowledgeable and/or consult an attorney well versed in these issues before live streaming your content.