How could thy notes flow in such a crystal stream? — Percy Bysshe Shelley
Streaming school or college events live over the Internet allows anyone in the world — relatives, friends, and sundry interested parties — access to student choir concerts, plays, sporting events, or graduations. It’s almost like being there! But live streaming these events raises a variety of legal concerns. Before deciding to stream an event online, districts should carefully consider these issues.
The Service Provider Who is the live streaming service provider? What technology and streaming options does it offer? What are its contract terms? Any service contract for live streaming should be carefully vetted, considering terms such as who retains the rights to the streamed content, who has the right to remove the content, and whether to permit screen capture or reposting of the video. If the service provider makes money on ads, be sure they comport with the district’s advertisement policies and legal requirements. And if the video stream captures student data, the contract must address how that data is stored and used.
Some services offer a delay that allows discontinuing the stream if something occurs during the live performance that is inappropriate to stream on the Internet. If the live stream service provider allows comments to be posted on its site, students or members of the public may make inappropriate or harmful comments that might be attributed to the district, and free speech rights may apply. The site should be monitored for comments of a threatening, discriminatory, harassing, or bullying nature. Alternatively, the feature may be disabled so that no comments are permitted, which avoids the need to review each comment.
If drones are used for aerial videography, additional laws and regulations apply. Public use of drones is governed by federal law (49 U.S.C. 40101 et seq.) and operation requires a Certificate of Authorization from the Federal Aviation Administration. Federal regulations impose a number of operational limitations. (14 C.F.R. § 107.) For example, the drone must be operated by or under the direct supervision of a pilot holding a certificate with a Small Unmanned Aircraft Systems (sUAS) rating; flight must occur within the visual line; and a pre-flight safety inspection is required. The drone must not fly over anyone other than the operator, must be flown during daylight hours, must not fly higher than 400 feet above ground level, and cannot travel faster than 100 mph. If the drone is used commercially, an additional exemption is required.
Access The Americans with Disabilities Act and Section 508 of the Rehabilitation Act, as applied to local public agencies by California Government Code section 11135(d)(2), require districts to provide persons with disabilities access to electronic and information technology that is comparable to the access available to persons without disabilities. (See 29 U.S.C. § 794d; 36 C.F.R. § 1194.1) Live streamed content authorized by the district must be fully accessible, which may require offering closed captioning and audio descriptions of visual material.
Publicity and Privacy Graduation ceremonies, dramatic and musical performances, and athletic events do not raise privacy concerns because they are public events. Still, advance notice to students and parents that events will be streamed live is a useful precaution. Obtaining express consent or offering the chance to “opt out” of live streaming may prove unwieldy, especially at large gatherings; instead, parents or students with concerns may be invited to contact the district to discuss options.
If the live stream has a commercial component (making ad revenue or charging a fee for access), it may trigger publicity rights. California Civil Code section 3344 prohibits the use of a person’s “readily identifiable” likeness for a commercial purpose without the person’s prior consent. Posting conspicuous notices that the event is being recorded and streamed live on the Internet, and presence at the event gives implied permission to use an individual’s image, may limit liability under the right to publicity.
Recording in a classroom raises privacy and confidentiality concerns. Education Code section 51512 prohibits recording in a K-12 classroom without the prior consent of both the teacher and the site principal. The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g.) and its implementing regulations (34 C.F.R. Part 99) and Education Code section 49060 et seq. protect the confidentiality of student records other than directory information. Instructors and those creating recordings must ensure any FERPA-protected material is not visible or discussed in streams created in classrooms, or obtain permission from parents to release this information. Parent permission, and an opportunity to opt out, are advisable before recording students’ images in the classroom setting.
Copyrights and Licenses If a streamed event includes music or a dramatic performance, the creative work is likely protected under the Copyright Act, and a license is needed to broadcast the material. (17 U.S.C. § 201 et seq.) Lack of an appropriate license can result in a court injunction prohibiting the live stream, the content being removed from the provider’s website, legal claims for royalties, and attorney fees and other costs. If the streaming service archives its broadcasts, each unauthorized replay of the broadcast could be considered a separate violation of copyright law. Licensing services are available for a fee. As less attractive alternatives, the performance can be limited to works in the public domain or the copyrighted music or other protected content can be removed. For events sponsored by or featuring organizations or prominent individuals, the rights to live stream the event should also be secured from those sources.
With careful consideration, districts can minimize liability while offering long-distance enjoyment of student activities through live streaming. Our education law attorneys are available help districts navigate these evolving issues.