how brand marketers can (& cant) stay legal using twitters live streaming app...
TRANSCRIPT
Mini Law LessonLaw of Twitter’s New
Live Streaming App - Periscope
Brian Heidelberger [email protected]
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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@BriHeidelberger
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