Social Media & Copyright Law – How to safely live stream on facebook. periscope or youtube without creating unwanted legal liability.
So you got tickets to the hottest concert or big U.F.C. boxing match and you want to LIVE STREAM it on facebook to all your friends, fans and followers. Is this a good idea? Probably not. This blog discusses some of the reasons why and some precautions you can take to attempt to avoid claims of online copyright infringement due to illegal streaming. You will probably find that this area of the law is a little complicated. But relax, take it easy, read this blog closely, and think about it – these are the same legal issues and risks major film, movie and television companies must be thinking about all the time. So in a sense, you as an individual are now armed with the technology to compete with these types of organizations. However, whereas they have high priced entertainment and intellectual property lawyers to help them avoid lawsuits, you do not. Hopefully this article will give you some of the most important things to keep in mind when “going live” on the internet! Enjoy and please leave any comments you might have. If you need legal representation for low priced IP and entertainment legal services, email us on the right side of this page.
So say you are one of those social media LEGENDS who has thousands of followers on facebook. You want to show them just how awesome you are and what you are doing with your time (ex. attending a fashion runway show, or a championship boxing fight or a concert at the local venue). So you get your iPhone or Android out and start to “go live” with a live broadcast stream. Your fans are loving it, and facebook appears to be allowing you to do it. Everyone is having fun until the copyright rights holder (ex. the artists or the band) find your post and want to sue you for copyright infringement by publicly displaying their music on your facebook site. Could this lead to legal problems? Potentially yes.
Attorney Steve's Top 15 Tips to strive for LEGAL LIVE STREAMING!!!
Here are general tips I follow when live streaming or “going live” on facebook or streaming on youtube:
1. Do not have any music in the background (facebook has a content filter that can pick this up) unless you own the copyrights to it. Find some music online that is royalty free or public domain if you must have music in your video. It might be wise to go to a stock music website and legally license or purchase the rights to a song so that you do not have to worry about music infringement claims from a third party that could cause your video to be taken down.
2. I would not broadcast a live event such as a concert or a boxing match for example unless you have written authorization to do so. Live streaming a concert results in distributing their materials (ex. the bands copyrighted songs) to your youtube friends. This potentially infringes on the copyright holders rights and could result in a takedown of the video.
3. Also, look around, are there any signs that inform you that you are prohibited from live streaming a boxing match for example? If so, you may be in violation of the terms of admittance and someone could try to use this against you in a court of law, especially if you are diverting paying clients away from the commercial event. For example the NBA may permit live streaming of its games and you may be asked to leave an event if you are trying to stream the game on your Periscope.
4. Be careful filming other people. This may raise claims of Right of Publicity. Try to get consent from the people you are shooting or use close friends who won't mind showing up in your videos. This is why, for example, many movie production companies use “extras” to shoot their videos. These people are paid to release their rights to sue for infringement.
Attorney Steve Fun fact: Check out my blog post about when I was an extra on City Slickers.
5. Check your local rules regarding filming minors. Even in public places, they may be protected from being filmed or having their pictures or photographs taken.
6. If you are considering broadcasting a live event, ask yourself whether someone might get offended and send you a cease and desist letter or file a lawsuit. For example, a band may not want pictures of them taken (see our Blog on Give me a break Eagles), or want their copyrighted songs (which they are publicly performing – one of the copyright holders enumerated rights), being re-broadcast and publicly made available by you. This could lead to legal action.
7. However, in the case of a sports event, there really is no copyrights (other than the television company that has the broadcasting rights), so for example streaming a video of Aaron Judge hitting a homerun would not likely violate a copyright. Be cognizant of where you are shooting. A sports event is not like a theater event or a choreographed event that would be subject to copyright. However, rebroadcasting a pay-per-view boxing match that is being shown on television (satellite or cable) would raise legal issues. See our blog on TV signal piracy cases.
8. Realize that commercial uses of content will likely be less protected than non-commercial (personal) uses.
Attorney Steve Tip: realize that copyright holders (and probably courts) will likely take an expansive view of what “commercial” means. For example, building a youtube channel so you can monetize it is likely commercial, as is posting videos on your blog or website to try to generate ad revenue.
9. Keep in mind also the “fair use defense” to copyright infringement. Content holders hate it, but it might factor into play.
10. Make sure to check the terms of service of the app you are using (see potential apps below) to see what they allow and don't allow. You don't want to be kicked off their platforms, or in the case of youtube, receive a “copyright strike.” Facebook may shut down your ability to use live streaming if you POST (video on demand) streamed content for others to come see later.
11. Be cognizant of copyright protected artwork, paintings and other creative items (ex. some buildings are copyrighted, for example, they would not let me take photos at one courthouse I visited, and could ask you to leave if you are video taping there) that are in the backdrop of your videos. These items may be copyrighted, and an artist or photographer may want to make a claim against you if their art is showing in your videos without their consent or permission. Sounds crazy, but that's why on TV sometimes you see artwork blurred out.
Attorney Steve Tip: You may need a filming permit or location release.
12. Youtube also has a “blurring” feature that you can look into if you already have the awesome video but find out there is copyrighted or private content you want to block. Many video editors would have a similar capability.
13. Try to avoid the use of a companies trademarks in your videos (ex. no Nike Swoosh or Coco-Cola logos). This may create a false impression or false endorsement and result in a Fortune 500 company sending you a cease and desist or take down notice to protect their brand from unauthorized uses. All copyrights and trademarks should be cleared for the best protection.
14. There may be insurance policies you can purchase that will protect you from incidental intellectual property infringement. Something to look into if you have an important commercial project.
15. Always consider a persons right to privacy. Don't shoot in private places (ex. bathrooms, or bars, strip clubs etc.) where people may become upset and offended and perhaps become litigious. Don't shoot women in sexual situations.
Sounds like fun doesn't it? Lots of rules, risks and pitfalls to consider. But hey, guess what, this is what the major studios and production companies have to deal with all the time.
Here is some good information to note from Facebook:
“Copyright and Posting Content on Facebook How can I make sure the content I post to Facebook doesn't violate copyright law? Under Facebook's Statement of Rights and Responsibilities and Community Standards, you can only post content to Facebook if it doesn't violate the intellectual property rights of another party. The best way to help make sure that the content you post to Facebook doesn't violate copyright law is to only post content that you've created yourself. You might also be able to use someone else's content on Facebook if you've gotten permission (for example, a license), or if your use is covered by fair use or some other exception to copyright. It's generally a good idea to get permission before posting content, and to get that permission in writing. Please note that Facebook can't help you obtain permission to use copyrighted content.
Before you post content on Facebook, you may want to ask:
- Did I create all of the content myself?
- Do I have permission to use all of the content included in my post?
- Does my use of the content fall within an exception to copyright infringement?
- Is the content protected by copyright (for example, is it a short phrase, idea or public domain work)?”
Another section reads:
“Content I posted was removed because it was reported for intellectual property (copyright or trademark) infringement. What are my next steps? When we receive a report from a rights owner claiming content on Facebook infringes their intellectual property rights, we may need to promptly remove that content from Facebook without contacting you first. If we remove content you posted because of an intellectual property report through our online form, you'll receive a notification from Facebook that includes the name and email of the rights owner who made the report and/or the details of the report. If you believe the content shouldn't have been removed, you can follow up with them directly to try to resolve the issue. If you're an admin on a Page, and content another admin posted on the Page was removed due to an intellectual property report, you'll receive a notification with information about the content that was removed, as well as the name of the admin on the Page who posted it. If the content was removed under the notice and counter-notice procedures of the United States Digital Millennium Copyright Act (DMCA), you may be able to file a DMCA counter-notification. Similarly, if the content was removed based on U.S. trademark rights, and if you believe the content should not have been removed, you will be provided an opportunity to submit an appeal. In these cases, you'll receive further instructions about this process in the notification you receive from Facebook.” According to an excellent article from the Huffington Post:
“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 Facebook Live or Periscope to stream games should expect teams to crack down on them.”
Risks and Penalties of Copyright Infringement
Here is a video we did that discusses the damages and potential penalties for copyright infringement:
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Video Streaming Applications
Streaming infringement in the news
Here are some cases that caught media attention
- Live streaming at Trinidad Carnival Parade of the Bands raises legal issues
- HBO goes after Game of Thrones pirates on Periscope
- Live streaming of presidential debates permitted (note: issues of public concern may be given more leeway – first amendment?)
- Great ideas for using the Periscope app
Youku case gets dismissed for lack of personal jurisdiction in D.C. Court
This case (Triple Up v. Youku) held that there was insufficient evidence of personal jurisdiction for Plaintiff Triple Up to sustain an infringement action against Youko (whicb some refer to as the “Youtube of China”) based on alleged streaming in the United States alleged to violate Plaintiff's exclusive broadcasting rights. The Court dismissed the case saying:
“In August and December 2015, Jiwei Zhang, one of Triple Up's attorneys in the District of Columbia, was able to stream copies of “Sleeping Youth,” “Sorry, I Love You,” and “Squirrel Suicide Incident” from Youku's websites. See Dkt. 11-2 at 1-12 (Zhang Decl. ¶¶ 5-7). One of the videos was preceded by an English-language video advertisement for the University of Phoenix. Id. at 3 (Zhang Decl. ¶ 5(e).) The others were preceded by advertisements for Chinese-language video games containing Mandarin Chinese text. Id. at 7, 10 (Zhang Decl. ¶¶ 6(e), 7(e)); see also Dkt. 11 at 13. There is no indication that the latter advertisements included any English-language voice-overs. See Dkt. 11-2 at 7, 10 (Zhang Decl. ¶¶ 6(e), 7(e)). Based on a comparison of user-uploaded content and Youku-uploaded content, Zhang infers that the three videos had been uploaded by Youku itself, and not by Youku's users. Id. at 13-14 (Zhang Decl. ¶ 9). Triple Up has not alleged that anyone other than Zhang has used Youku's websites to view the films at issue from within the United States.“
Youku has allegedly over 500 million monthly active users and 800 million daily video views.
Contact a Social Media & Copyright Infringement Law Firm
If you need help with a social media or online copyright infringement issue, contact us at (877) 276-5084 to discuss. We can help with issuing or responding to cease and desist letters, DMCA take down notices, counter-notification process, and copyright infringement matters.