Meerkat, Periscope, Privacy and the Law: Is Live-Streaming Video Legal?

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UPDATE: I’ve created a legal checklist for marketers using Meerkat and Periscope to live-stream for brands!

Meerkat, the media darling of SXSW 2015, and competitor app Periscope enable users to live stream video content from their mobile device. The content goes live in real-time, as you capture it, and you share a link on social media so people can watch your feed.

Live streaming video has changed the way people interact with one another and experience live events, like football games and concerts. Singer Katy Perry encouraged performers to “embrace the future,” and commented that “people used to applaud; now the more phones you see, you can just count it as the amount of applause that there would be.”

But is recording with Meerkat or Periscope legal?
As is the case with so many legal questions, the answer is “it depends,” but the legality of live-streamed video hinges on the same factors as other video and photographic content.

Are you capturing copyrighted content?
Both Meerkat and Periscope prohibit using the service to record copyrighted content. So, live streaming as you watch Furious 7 is a no-no, both under federal copyright law and under each app’s terms of use. (This is why the movie industry banned Google Glass and other wearable technology from theaters in 2014.)

Live streaming a concert performance potentially infringes in the copyrights of multiple parties, including the artist, the label, and the publisher. Many venues prohibit recording during concerts, to avoid the potential legal mess. Brands in particular should avoid live streaming at concerts: their deep pockets make them an enticing target for lawsuits.

League restrictions also apply while viewing a professional sporting event, like an NFL football game or an MLB baseball game. (GeekWire covers concerns about live streaming sports games in some depth.) Networks pay huge sums of money for the rights to broadcast games live, so anyone using apps like Meerkat or Periscope to stream games should expect teams to crack down on them.

Location, location, location
Your location factors into the legality of live streaming. If you’re in a public place, like a park, sidewalk, or bus, you have no reasonable expectation of privacy. Someone can take your picture, record or stream video of your activities and movements in public, and you wouldn’t have much legal basis to complain about it, unless they trespass. If they go beyond recording to harassing or stalking you, many states do have anti-stalking laws.

Attendees at a concert, sports game or conference fall into this “public” category. You’ve elected to go out in public, and if someone captures your picture or a video of you, it’s unlikely you can do much about it.

Two exceptions: commercial use and criminal peeping.
People cannot use the picture or video they capture of you for commercial purposes. In other words, Apple can’t just record people on Meerkat or Periscope using iPhones “in the wild,” then use that footage to promote its products.

Anyone featured in commercial or promotional content must sign a release, or the company could be liable for “appropriation,” or violating that person’s right of publicity (the right to choose if and how your likeness is used for promoting brands, products or services).

Also, perverts and peepers generally can’t use Meerkat or Periscope to look up your dress or down at your cleavage. The most commonly used term for this type of voyeurism is “upskirting,” and many states have statutes prohibiting it.

Just as photographing or recording videos of people’s “intimate areas” is illegal in most states (although apparently not in Oregon yet), using a streaming app to peep would also be against the law.

So, your privacy is relatively unprotected in public places, but the law does protect your right to privacy when you are at home or in some other place where privacy is expected (like a restroom or a doctor’s office).

Photographing or recording someone in a private place is generally illegal, so streaming video of them using an app like Meerkat or Periscope would also violate their right to privacy.

Here’s the bottom line: Streaming video with Meerkat or Periscope (or any similar service) in a public place is generally legal, but brands should obtain releases beforehand if they plan to use the content for commercial purposes.

And anyone using these apps, don’t be creepy. Even if you ultimately beat a criminal charge or defend yourself in a civil lawsuit, you’ll have spent thousands on legal fees before you’re vindicated.

Creeping can cost you!

 

Thanks to Christopher Penn for the topic suggestion, and to Matt Ridings for his feedback!

/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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