Legal Warnings for Small Businesses Using Periscope

periscope legal

Periscope is the hot topic among businesses and marketers these days and for good reason. Since Twitter acquired Periscope in March of 2015 for $120 million (before it actually launched), it was obvious that live video streaming wasn’t just a fad. It was here to stay.

Fast forward just 10 months and it’s even more obvious that live streaming is a force to be reckoned with. This month, IBM announced that it would acquire Ustream for an estimated $130 million (a bargain compared to Amazon’s acquisition of video game streaming site Twitch in 2014 for $970 million). Today, Periscope makes livestreaming affordable to small businesses. No wonder so many people are jumping on board!

Balancing Periscope Marketing Opportunities with Business Risks

Periscope is a great tool to promote your small business and build your brand. Household brands like Doritos and Red Bull are using Periscope to engage consumers in real time, and so can you. However, as with most things in business, there are some legal considerations that you should think about before you dive into the world of live streaming. Just because everyone is doing it, doesn’t mean you’re not at risk.

You should know what could get you in trouble when you publish live streams for your business using Periscope so you can assess the level of risk you’re willing to take and then live-stream accordingly. Here are three basic Periscope legal warnings you should be aware of before you live stream.

1. Copyright Matters in Live Streaming

Just because you’re live streaming with Periscope doesn’t mean you can ignore copyright laws. Many of the same copyright laws that affect your social media use also apply to your Periscope use.

Familiarize yourself with copyright laws and follow them (or at least understand the risks you’re taking if you don’t follow them).

For example, you should only use images in your live streams that you own or have permission to use. The same goes for music. And never assume anything used in your streams that you don’t own is covered by fair use!

2. Right of Publicity Affects Live Streaming

Even if you’re not featuring a person front and center in your live stream, they might not want to be in your video. You can get into trouble if you don’t get permission from each person whose voice or likeness appears in your published content.

Any image or video that features a person that is used commercially is subject to “right of publicity” which means they have a right to not allow your business to include their voice, face, name, likeness or any other aspect of their identity in your content.

There’s a reason why people’s faces are blurred out in many hidden camera and reality shows on television. The production company couldn’t get the person to sign a release allowing their image to be included in the final video.

3. Trade Secrets and Proprietary Information Should Stay Secret in Live Streaming

A lot of businesses live stream from conferences and other events as well as during visits to other companies. However, the content of those conferences and events might not be free for you to distribute via live streams.

For example, a conference presentation might include content that the presenter doesn’t want the public to know yet. Not only does he or she own the copyright to the speech and slide deck (unless the copyright was signed over to the event organizer or someone else), but it might include proprietary information that the presenter wants to keep private.

The background of your live streams matters, too. If you’re live streaming during a visit to a cool company, make sure there aren’t any trade secrets or proprietary information visible in the background. For example, the content on a computer monitor, in a poster, or on a white board could be proprietary or include trade secrets that should not appear in your live stream.

The Takeaway

Livestreaming is a great marketing opportunity for small businesses and Periscope is a great tool to do it. However, beware of the laws that affect your live streams so you and your business don’t end up in expensive legal trouble by not heeding these Periscope legal warnings.

Periscope Photo via Shutterstock

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Kelley Keller Kelley Keller is CEO of Kelley Keller Law and a 20-year veteran of the intellectual property law field with experience helping businesses of all sizes (including many household brands) identify, manage, and protect their trademarks, copyrights, patents, and trade secrets.

14 Reactions
  1. I have really mixed feelings about the legal system. I appreciate the protections, but the legal complexity around a simple live stream is daunting. I can see why many SMBs just won’t do it (or will ignore the legal implications).

    • Thank you, Robert, for your comment. It is very daunting, but not intentionally so. The way we do business, buy and sell products, and consume and distribute content has changed so much in the last 10 years — and even more so in just the last 5 years — that everyone’s heads are spinning. It takes a long time for the courts to sort out new rules, and even longer for Congress to create them, but they are making extraordinary process given how bureaucratic those institutions are. The changes created by the Internet and social networking, in particular, are as dramatic as the introduction of the radio and then television as means of communication. They are truly seismic shifts. As the adage goes, may we live in interesting times!

    • Hi Robert Hi Kelley. I also feel some industries will tend to be vague about live streaming than others. I interviewed 3 professionals in what I call “capricious” industries, and their opinions can be seen here

      • Hi Martin — Thank you very much for your comment. Your article was great and raises a lot of interesting issues. The bottom line of all of this is whether or not you have permission to reproduce and display another’s work or use another’s image in a way that would violate their legal rights. As you may know, permission is obtained in several ways, including these: (1) it’s expressly or specifically granted; (2) work is in the public domain; (3) work isn’t copyrightable in the first place; and (4) acquiescence. Often, copyright owners or copyright rights managers encourage live streaming for it’s marketing value. If they don’t put restrictions on the live streaming (like a Creative Commons license), then they’re essentially giving blanket permission. They can’t go back and “change their mind.” The speed at which information moves makes all of this really tricky — and the rules are slowly responding to this new dynamic, but it will still take some time. For now, we simply need to consider best practices — discretion is the better part of valor!

  2. And they now released some regulations for Periscope. I guess it is bound to happen as what happened in drones. And the copyright for music came pretty early too.

    • Things always have a way of settling themselves out. The copyright wars with music downloads was rough, but there have been compromises on both sides and a reasonable and workable stasis has been achieved. The same will happen with live streaming! Thank you for your comment.

  3. Your point on copyright is good – but I think this issue goes further. With the exception of Linked In, the main Social Sites claim full ownership of whatever you post to them. So not just your words, your images too. From the other end I’ve found that fotolia, a stock images site, specifically states images cannot be used on sites with such content policies. If this is true for other image sites, then there’s some really big issues out there!

    • Thank you, John, for your comment. I’m not sure which social networking sites you believe are claiming ownership of content posted to them. That would be completely inimical to their legal responsibilities as hosts of user-generated content. I’d love to look into this and provide further comment. Please let me know the sites you reference. Much appreciated!

  4. Kelley: Shouldn’t the legal warnings be the same, livestreaming or off-line?

    Interesting to hear that IBM will acquire UStream.

  5. Over the weekend, I saw a Periscope from court side of the NBA All Star game that showed the tip off and a few minutes of play. I thought this may have been illegal as the NBA owns the rights to the game. Was it illegal?

    • Hi Kathleen! Thanks for your comment – and great question. Generally in these situations the venue will set the rules for what you can and can’t do. Barring that, live sporting events that aren’t choreographed are generally not eligible for copyright protection, so there’s that to consider as well.

  6. Hi Kelley…good summary of legal restrictions to be aware of. These shouldn’t hold anyone back, but should be viewed as guidelines to keep all safe. You were right when saying this is no different than all the tools that came before livestreaming. I work with lawyers as my clients, and am critically aware of the importance of what you’ve described here.

    These guidelines shouldn’t be used as artificial barriers to businesses, individuals or firms, allowing these “restrictions” to hold them back from moving forward. Those are merely excuses to procrastinate. Nobody has to livestream using music, other human beings that don’t want to be there, or photos that they don’t have permission to use. Be smart. Be sensible. Move forward.

No, Thank You