The Perils of Periscope

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The Perils of Periscope

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Live video content is difficult to control and with new mobile app’s such as Twitter’s Periscope, unedited video is being released into the world in some cases, containing footage of people who are not aware that they are being recorded. For many, this can cause serious legal issues.

Periscope isn’t the first app to offer live-streaming capabilities but it does make it very easy to allow video to be recorded on the fly from a smartphone, and shared publicly on Twitter. Right now it’s well positioned to attract a load of legal disputes, involving alleged privacy violations or copyright infringement.

Using Periscope in public places while attending events like Splendour in The Grass is where issues can arise. Did you asked permission from everyone who appears in your footage before you hit “Stream”? In the process of broadcasting, snippets of private conversations, copyrighted material, and other incidents may inevitably be picked up.

The immediacy of Periscope is what changes the landscape. With other video recording apps such as Streaka, users and business marketing teams are given the opportunity to review footage before it is broadcast and shared on social media. In most public places, privacy laws typically don’t protect people with regards to photography and delayed video. However, those laws do apply to new live streaming apps like they would to other recording apps.

Put simply, you cannot live record people without people’s permission. Whether in public or private, everyone has what’s called a “right of publicity”. In legal speak, this means that any video recorded requires the permission of the people in the recording before it can be used for commercial purposes – and that extends to social media posts. As the owner of an account or page, you are considered the Publisher and therefore are legally responsible for everything on that account or page.

Safe on Social is seeing a number of small businesses starting to use Periscope before they fully understand the legal risks or repercussions.

If a business uses a live video stream app like Periscope in a public setting for a commercial purpose, and does not obtain consent from people captured during the broadcast, those people would be within their rights to sue that business. Late last year, actress Katherine Heigl sued Duane Reade Pharmacies in the US after the chain tweeted a photo of her shopping at one of its stores without her permission. She later dropped the suit after coming to a “mutually beneficial agreement” with the pharmacy chain.

Copyright infringement is another big concern with live streaming apps. HBO issued takedown notices to Periscope after people streamed the season five premier of its Game of Thrones show. In its terms and conditions, Periscope forbids users from posting videos that would constitute copyright infringement. Live streaming a network’s broadcast of a show would violate that rule. But determining exactly what constitutes copyright infringement as it relates to “live in a public setting” is far from clear and is a constant area of question. There have been courts cases where a live event is essentially a performance of a “work of authorship” and, akin to a theatre production or a choreographed dance, it is protected under copyright law.

Live streaming of individual gigs at a music festival would not – as far as we are aware – violate copyright as long as the gig or event was not choreographed. Some are and some aren’t in the case of big festivals like Splendour so you are best to check the terms and conditions of entry to the festival (usually on your ticket) to see what the rules are. If you are a small business that does not have media accreditation with the festival and intend on using live streaming apps like Periscope to capture video at the festival to promote your business, you may be in breach of privacy laws and terms and conditions of entry to the festival and may end up with legal issues.

Still, event promoters and broadcasters may adopt their own rules on live streaming by attendees during events, regardless of how the law applies to them. In fact, some might argue that the quality of mobile video taken with a live streaming app is not high enough to warrant legal action by a copyright holder. Unfortunately, even if the video is of average quality, it will not save you from liability for copyright violations or invasion of privacy.

Instead, what might save Periscope and other live streaming apps from liability, but not the end user, are clauses in the Digital Millennium Copyright Act. This is what has saved YouTube from paying monetary damages for copyrighted videos on its site, by arguing it’s a third party hosting service for what end users decide to post. Under the act, YouTube and others like it are required to respond promptly to valid legal takedown requests from copyright holders. This is why you see loads of music videos that have been shot by someone videoing a computer or TV screen removed by artist management that do not allow the release of their talents videos online.

Take Prince for example. You will find it very difficult to find one of his film clips on YouTube and, if they are there, they are removed fairly quickly. But, as it stands now, videos on Periscope remain active for 24-hours. This gives copyright holders a narrow window to file a takedown request. With new live streaming apps, it is a very different world from stored video and from YouTubes. As a result, the copyright analysis will be different and will continue to evolve. Periscope may not be as mainstream as Instagram or Facebook but already tech-savvy entertainers like Michael Franti have already latched on to it as a way to promote themselves and connect with fans.

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