how brand marketers can (& cant) stay legal using twitters live streaming app...

Mini Law LessonLaw of Twitter’s New

Live Streaming App - Periscope

Brian Heidelberger bheidelb@winston.com

Twitter @briheidelbergerwww.winston.com/bheidelberger

IMPORTANT DISCLAIMER

• I am not your attorney.

• This is not legal advice.

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What’s Periscope?

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How Are Brands Using Periscope

• Special Offers and Contests

• Influencer Marketing

• Showcase Company and Brand Culture

• Live Q&A

• Sneak peeks and teasers

• Livestreaming events

• Livestreaming trade shows

• Livestreaming product launches

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Interesting Facts

• Can’t upload content to stream (it’s live)

• You can only archive content for 24 hours on Periscope

• There are other live streaming platforms

Meerkat is Periscope’s biggest competitor

• You can watch streams from people you don’t follow

• You respond to comments live

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Standard Advice

• Don’t show celebrities w/out permission

• Get a release from people shown

• Frame your shot and control the situation

• Clear it as if it were a TV commercial

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Showing People Press Releases Have Been

Considered Advertising

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Showing People Congratulatory Ads Have Been

Considered Advertising

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Showing People Game Considered Protected by

First Amendment

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PeopleMagazine Article Wrapped in Ad

Protected by the First Amendment

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Showing PeopleAdvertorial Using Dustin Hoffman Not Seen as Ad

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Old CaseCorporate Documentary Found Protected By the

First Amendment

• Benavidez v. Anheuser Busch, Inc., 873 F.2d 102 (5th Cir. 1989)

• While video does boost corporate goodwill, this does not turn the exempt documentary into an actionable “commercial” for the company.

Use of individual was incidental

produced as a public service film and for educational purposes

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Use of People Without Permission

• There is some risk that can’t be eliminated

• Create videos that are more educational than “sales oriented”

• Depict people “incidentally”

Brief is not always incidental

• Be wary of any celebrity depiction

• Use signage (“photographing for marketing purposes”)

• Don’t archive

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Use of Music, ArtworkWithout Permission

• Any use can raise challenges

• Brief is not necessarily incidental

• Background is obviously lower risk

• “Fair Use” or “Parody” may only provide help where you are teaching, commenting or criticizing the music, art, etc.

• Don’t archive

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Parody Isn’t Always a Defense

• use of the tattoo did not comment on the artist's work or have any critical bearing on the original composition.

• Judge said plaintiff would "probably win" the case.

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Third Party Trademarks

• Trademark standard is a “likelihood of confusion standard” which makes stating a claim harder for a trademark owner.

• Background is obviously lower risk

• Truthful and non-disparaging is legitimate

• Don’t archive

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Trademark Infringement Hard to Prove in Entertainment Properties

• Use of the bag (whether intentional or inadvertent) was intended to create an artistic association (as opposed to commercial

• Does not allege that filmaker used the bag to mislead consumers to believe that mfg. endorsed the film.

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Claims About Your Products/Competitors

• “If through product placement [in entertainment properties], false or misleading objective, material claims about a product’s attributes are made, the [FTC can take action under Section 5].”

FTC, Letter to Commercial Alert (2005)

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Claims About Your Products/Competitors

• Important to be very careful about claims about your product or those of your competitors

• “Short” doesn’t eliminate risk

• Better to focus less on product claims and more on education and entertainment

• Don’t archive

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youtube.com/adage or

Youtube.com/brianheidelberger

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Twitter

@BriHeidelberger

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