Gregor Pryor, co-chair, entertainment and media industry group at Reed Smith LLP offers advice on navigating the legal issues around live streaming.
While live streaming is not a new phenomenon, the recent lockdown has shone a spotlight on this activity, as sporting events are postponed or cancelled, and companies turn to live streaming to reach people confined to their homes.
Untangling the hidden legal pitfalls
Live streamers need to ensure they comply with applicable laws to avoid possible legal liability. These issues range from understanding the licence agreements with the livestreaming service and considering the potential regulatory issues involved, to clearing the rights to use copyrighted works, as well as registered trademarks and music.
In some cases, the penalties can be extreme. For failing to comply with local laws in Spain, YouTuber Kanghua Ren, aka ReSet, was sentenced to 15 months in prison and given a €20,000 fine for violating moral integrity laws.
This was after he filmed himself handing a homeless man an Oreo filled with toothpaste instead of Oreo-crème.
The court also banned Ren from operating on YouTube for five years.
It can also be illegal to live stream protected content, without first obtaining the necessary rights.
In some countries, live streaming sporting events, including Premier League matches and professional boxing matches may lead to injunctions being granted against service providers, while individuals could face unlimited fines as well as a custodial sentence.
Live streamers should also be careful with where they film.
Some locations may forbid filming or require that permissions are obtained. While professional production companies often seek permits from local authorities and others, during lockdown, live streamers have tended to stream content on a more instantaneous basis, which can lead to a multitude of legal difficulties.
Performance and music rights
Using music without the right to do so can lead to copyright infringement claims, as YouTuber Michelle Phan found out the hard way.
She was sued for using songs and compilations in her videos without a licence. The record labels involved sought an injunction to stop her use of the music and either maximum statutory damages of $150,000 for each infringed work (of which dozens were uncovered) or unspecified damages (to be determined) were sought.
Although this case was eventually settled out of court for an undisclosed sum, it highlights that there can be a heavy price to pay for use of music without the correct licences.
During lockdown, many fitness instructors and professional sports people are taking their audiences online. However, there is one major difference to note between a live streamed lockdown fitness class and a live class at a gym – in a real world environment, gyms and other premises carry public performance licences.
Many online platforms also have licence arrangements with music companies, but these arrangements can include the platform operating a content filtering solution that allows rights holders to filter or block the use of certain music.
Therefore, any sports personality or fitness instructor live streaming could be using production music that they do not have the rights to, an issue they would not ever worry about in the ordinary gym environment.
Know your online responsibilities
Finally, under lockdown, live streamers are gaining a better understanding of the terms of use for the live streaming service or provider it is using.
YouTube stars Jake Paul and Brian ‘RiceGum’ Le faced a huge backlash from fellow YouTubers and the public for promoting gambling to their young audiences by posting sponsored videos for a gambling website, which encouraged visitors to gamble to win mystery items.
Although they did not face legal action, YouTube confirmed their policies make clear that the creators themselves are responsible for ensuring their content complies with local laws.
The onus is on the live streamers themselves to understand local rules and laws. Almost all live streaming platforms have detailed terms of use and conduct rules that govern what is and is not acceptable use of the platform.
With live streaming providing a valuable lifeline for many sports businesses that may have otherwise failed at all to reach their audience, it is critical for those embarking on their first live streaming experience to consider the legal issues and seek advice where necessary.