Livestreaming: Powerful Marketing, Legal Risk or Both?

Twitter recently announced that live video from Periscope, which Twitter purchased almost a year ago, can now be viewed directly from a user’s Twitter feed. Periscope is a livestreaming mobile app that makes it possible for users to “broadcast” live video and for viewers to provide real-time feedback. You’ve probably heard of “live tweeting” – posting tweet after tweet to update and invite comments from followers about a live event. Now, you can do a video version.

Suppose you’re on vacation and you go swimming with the sea turtles. You decide to video the entire experience and share it live with your own audio commentary. It’s a fun way to share a little slice of your vacation, right? But is it okay for a travel agent to use this kind of video as a marketing tool?

Suppose you’ve been invited to speak at an industry conference, and you decide to livestream your presentation on Twitter to reach a larger audience. As part of the presentation, you answer questions from audience members. Could your livestream get you in trouble?

Mobile apps such as Periscope, Meerkat and YouNow make it easier than ever for brands to deliver video to their target audiences in real time, whether that video is created by the brand or user-generated. However, businesses that decide to use livestreaming need to worry about the potential legal issues. While an individual generally can livestream events in public places without violating privacy or copyright laws, the use of livestreaming for commercial purposes is a different story.

A person’s right to publicity entitles that individual to determine if and how his or her likeness can be used by the brand for commercial purposes. Consequently, a brand should have anyone who appears in its video sign a release before the video is recorded. It doesn’t matter if the person in your livestream is a celebrity or the pizza delivery guy. Celebrities have sued companies that livestreamed events and included the celebrity’s likeness without consent. Everyday people like you and me can do the same.

Also, if another company has a billboard or truck, for example, with a copyrighted logo that appears in the video, or you can hear a copyrighted song playing in the background, you need releases from the companies or people who own these materials. The archival of video streams represents another potential legal headache. For example, Periscope saves streams for 24 hours, which can lead to infringement upon a publisher’s reproduction rights.

The fact that any business owner or marketer with a smartphone can livestream has opened the flood gates for potential legal issues. Anything can happen when you’re livestreaming because the video is raw and unedited. If you feel the business value of livestreaming outweighs the risk, document company policies for livestreaming, be careful about how you frame your shots, and work in a controlled environment as much as possible. Just remember, you can plan as much as you want, but there is a good chance that someone or something will be unexpectedly captured in your video.

When you snap a photo, you have time to explore any legal issues before using that photo in your marketing. You can crop the photo and blur out faces, text and logos. Livestreaming does not allow you that luxury. Because laws related to livestreaming are still somewhat murky, proceed with caution and consult with an attorney about how to minimize risk.