Live Streaming with Meerkat & Periscope: A Marketer’s Legal Checklist

People love behind-the-scenes content, and live streaming video from a company event or corporate headquarters can offer marketers a unique opportunity to connect with their online audience. Mobile apps like Meerkat and Periscope make live streaming as easy as taking a video with your smartphone, but make no mistake: there is a difference.

As I explained in a recent post, there are legal concerns that arise when live streaming, The immediacy of sending out live video via mobile increases the risk that you might accidentally pick up copyrighted works, private conversations, or otherwise violate someone else’s rights.

In a single live stream, you might show someone else’s copyrighted creative work, illegally invade their privacy, violate their right of publicity…or even all three!

5-Step Legal Checklist for Marketers Using Live Streaming Apps like Meerkat and Periscope

For a snack-sized version of my legal checklist for live streaming, check out this infographic.

But you can minimize risk and use this technology for marketing: you just need to do a little planning! The key is this: Brand marketers, plan your live stream as carefully as you would a commercial video shoot. tl;dr? Here’s a handy infographic!

Location

Are you on your own company’s property? That simplifies things. So long as you have any necessary internal approvals to live stream, you should be in the clear.

If you are on public property, you can still live stream, but there are more risks to manage. Any time your live stream shows someone other than a company employee, you should have a signed release (or at least post a crowd release). More on this below.

Without permission, going onto someone else’s property is trespassing. If you are planning to live stream while on someone else’s property, get a signed location release form from the property owner in advance. That way, you can prove that you had permission to be on the premises (and to stream live video from there).

Privacy

In a public place like a park or sidewalk, people do not have a “reasonable expectation of privacy.”  Nonetheless, if you’re streaming video for a brand or company, get releases from anyone depicted. You might also post crowd releases alerting people in the area that you are streaming, if getting individually signed releases is not feasible. (See Publicity.)

Try not to capture audio or video of people who do not seem aware that you’re filming, or who look as though they want privacy. If they’re huddled close together, talking in hushed tones, or otherwise being intimate, steer clear of them. Even if you posted crowd releases, you can avoid headaches by taking a conservative approach.

Avoid live streaming anywhere that people might reasonably expect privacy, like a bathroom or an individual’s office.

Stay in common areas, or get permission from the occupant of any office you plan to enter while streaming.

Intellectual Property
(Copyright, Trademark, Trade Secrets)

Trade Secrets / Sensitive Information

Check the area that will be visible on screen, and the surrounding area as well. It’s natural to change angles while shooting on a mobile device, so clear a larger area than you think you’ll need.

Check for the following:

  • Visible computer screens.
  • Client storyboards, status boards, financial projections or other plans and information you don’t want public.
  • Employees’ personal spaces: photos, personal information (e.g. mail showing their address, credit card statements, photos of children, decorations, flyers or posters, etc.)
  • Artwork, photos, posters, sculptures or other creative works not owned by the company
    (See Copyright).

Avoid high-traffic areas where people might walk through who don’t realize you’re streaming video. People can (and do) say things you’d rather not broadcast in real-time to your audience.

Copyright

Copyright holders tend to sue. Years ago, picking up some copyrighted music in the background of a documentary film or a snippet of a play being performed in the park wasn’t a big deal, but times have changed.

Even if a court would probably consider this kind of “incidental capture” fair use (not infringement), it would cost thousands in legal fees and take years of litigation to settle any claims brought by the copyright owner(s). Not worth the headache!

Before streaming, check for the following:

  • Screens showing copyrighted content like movies, TV shows, sporting events or concerts.
  • Movie posters, artwork, photos, and even sculptures.
  • Documents with copyrighted written works that viewers could read on a large, HD screen.
  • Audio content from sound recordings, live musical performances or plays, motion pictures, etc.

Remember, just because you’re shooting on a smartphone doesn’t mean viewers are watching the content on a small screen. Users could display your streaming video on a computer monitor or even an HD TV (using Chromecast or AppleTV), making it easy to see copyrighted material in the background.

For more information, check out my recent post about Periscope and Meerkat piracy and copyright law.

Trademark

Scan the background for trademarks, as well.

Showing a brand name or logo does not generally constitute trademark infringement unless you imply a relationship between your company and that brand, or show the product in bad light.

However, if you want to minimize unnecessary risks, obscure visible brands or logos on these items, or remove them from the area:

  • Clothing
  • Food packaging
  • Consumer products
  • Desktop items (e.g. tradeshow swag and bric-a-brac)

Intellectual property holders can be highly litigious, and very protective of their rights. Some pre-planning and careful attention to detail can save you untold headaches and thousands of dollars in legal fees.

Likeness / Right of Publicity

Companies streaming video as branded content or promotional material need to be more careful than individuals streaming for fun.

Live streaming video for a company or brand (even a nonprofit organization) typically constitutes “commercial use.” This means that streaming people without permission could violate their right of publicity under applicable state laws: their legal right to control commercial use of their own identity.

If you can see someone’s face in your streaming video, get a signed release form. Be especially careful to get signed releases from anyone who’s prominently featured, like an interviewee or speaker.

If you’re streaming a company event or other large gathering and individual releases are not feasible, post crowd releases.

Contingency Plan

Sometimes, despite your best efforts, things go wrong.

Maybe someone stages a protest outside your building the day you want to stream. Maybe you forgot it was “Bring Your Child to Work Day,” and there are minors everywhere. Kids really DO say the darnedest things, and you may not want to stream it!

Have a contingency plan:

  • Set a “rain date” to stream in the event your planned shoot can’t happen as scheduled.
  • Select a back-up location over which you have more control if you’re planning to stream from a public place, or on someone else’s property. At a conference, for example, set up a filming room away from the noisy concourse, or book a room in the conference hotel and shoot there.
  • If you want the background noise and activity, use a quality microphone so you capture clean audio of your subject and minimal background conversation from passers-by. And remember to obtain releases!

No checklist can protect you from every potential hazard, but if you plan your Meerkat or Periscope live stream as carefully as you would a professional video shoot, you’ll be much better off than if you “spontaneously stream.”

Questions? Ask me on Twitter: @KerryGorgone!

/Begin mandatory disclaimer/ This post and any articles linked from this post are not legal advice and are not intended as legal advice. All posts on this site are intended to provide only general, non-specific legal information. This blog does not create any attorney-client relationship, and is not a solicitation. /End mandatory disclaimer/

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