The rollout of Facebook Live Audio is awesome. It offers a new way to communicate, in real time, with our clients, customers, and audiences, using our mobile devices. Click here or on the image above to listen to my first Facebook Live Audio.
While Facebook Live Audio provides all of us with a new free audio based broadcasting tool, it also exposes uninformed users of Facebook Live Audio to place themselves in legal jeopardy for violations of Intellectual Property (IP) and specifically, copyright right laws. In this post, I share some of the issues I’m already watching and listening to and, others I anticipate in the future on the Facebook Live Audio platform.
For example, if you read or play original content created by someone else, for any reason and for any length of time, you may be in violation of the creators IP rights. This includes reading a book, blog post, or playing music in the background. The easy solution is as follows: If you didn’t create the content, don’t use it without the written permission of the owner or person with legal use rights.
Yes, there is the Fair Use Doctrine that permits the use of someone else’s copyrighted material, but the exceptions are narrow and the law is gray. Don’t count too much on this exception protecting you unless (1) your lawyer is better than the other side’s lawyer and (2) you have more money than the other side to win your case in court (sarcasm).
Facebook has a Terms of Service (TOS) Agreement that applies to Facebook Live Audio. It prohibits users from violating the copyright of others. It’s part of the DMCA Safe Harbor provisions that protect Facebook and not you.
If you go live and share copyrighted material, you may be liable to the creator of the content and, you may also be in violation of the TOS Agreement. Facebook can suspend your account or shut you down for a violation of its TOS Agreement.
If you repurpose your Facebook Live Audio broadcast on other platforms like Twitter, Linkedin, Instagram and Snapchat, their TOS Agreements allow for the same action. Depending on how and why you use your social media platforms, this could be devastating to your reputation, success, or business.
If you play music during your Facebook Live Audio and didn’t get permission from the creator of the music (writer, band, license holder, management company), you will in all likelihood be in violation of a copyright. This includes background music or using Facebook Live Audio to share an evening of live karaoke which I see all the time with livestreaming video. Keep in mind that just because everyone else is doing it doesn’t make it right or legal.
Similar to the TOS Agreement mentioned above, if you go live from a concert or stadium and share protected music with your audience, you’ll probably be in violation of one or more intellectual property rights. While the venue may have secured a public-performance license through ASCAP or BMI (songwriters’ associations), and may have the legal right to record and play the music, you don’t.
In addition to copyright issues, there’s also a valuable “right of publicity” that an artist may be able to protect. Under this theory, Katy Perry may argue her voice or music played in the background during your Facebook Live Audio is part of her image or brand, and only she has the right to benefit from that image or brand. This is a relatively new and untested area of law. It appears to me that artists such as Katy Perry would be on strong legal grounds should they decide to hold offending Facebook Live Audio users liable.
Other legal arguments musicians and bands may assert for the unauthorized use of their music during a Facebook Live Audio include violations of the “Lanham Act” (confusion or dilution of a trademark through unauthorized use) and “False Endorsement” (implies that the artist supports a product or your broadcast).
If you’re looking to compliment your Facebook Live Audio or business branding with music or sound, avoid all of the above hassles and create your own!
I recommend you take a close look at Signature Tones. It’s a sonic branding studio that works with organizations to create and use music and sound to establish a unique and memorable identity. Created by friend, marketing strategist, international sales and marketing speaker, and bestselling author David Meerman Scott and recording artist, live music performer, and music creative director Juanito Pascual, Signature Tones is your one stop solution to creating an audio brand you own and that your audience will never forget.
We tell our clients not to use any audio, including music, during their Facebook Live Audios that they did not create or, obtain permission from the creator or owner to use. When they claim that the Fair Use Doctrine will protect them, we remind them of the limited scope and protection this doctrine provides.
Best practices are to (1) get permission before using someone else’s audio content or (2) use licensed or royalty free audio (for example, services like Shutterstock).
Facebook Live Audio is a fantastic tool. Enjoy it and use it often. But when you do, respect the IP rights of all sounds, music or other material that you directly or indirectly share over the platform.
Author StreamingLawyerPosted on June 21, 2017 June 22, 2017 Categories Business Tips, Legal Tips and Updates, Live Streaming TipsTags Business Tips, Facebook Live Audio, Legal Tips and Updates, Live Streaming TipsLeave a comment on Facebook Live Audio Copyright Issues: Things You Need to Know!
What Influencers Need To Know and Do When Recommending Someone Else’s Products or Services!
When an influencer recommends another person or promotes, shares or sells a third party’s products or services, she may be exposing herself to liability. This concept also applies to influencers who appear to be representing a product or service by their endorsement or “taking over” a person or company’s social media account.
Before we get started, please keep in mind that although I am a lawyer licensed to practice law in California, I’m not your lawyer. No legal advice is given in this article, and you should consult a qualified lawyer in your state with your questions or needs.
Having gotten that little California State Bar requirement out of the way, I’d like to share the following thoughts with you. This is a complicated and developing area of the law. Conflict of law issues together with new court holdings make it important for influencers to stay on top of these legal issues. With this in mind, I hope you find value in this post.
You are an influencer who is asked to recommend or use a third party’s products or services.
While each case is different, under both State and Federal law, anyone who recommends another person or company’s product or service, can potentially be held legally responsible for damages sustained by an end user. If someone in your audience reasonably relies upon your recommendation and suffers harm because of negligence or even an intentional act such as fraud by the client who hired you, then the victim(s) could potentially point the finger at you for making that recommendation. Theories of liability differ in each state but may include negligence, fraud, breach of express and implied warranty and defective product theories including strict liability. Special, general and even punitive damages may be available to victims showing harm, damages, and losses.
What would social media and livestreaming be without photography and videos?
I enjoyed being a (small) part of the Summit Live 2017 Photography Panel with the talented Roberto Blake, Keith Dixon, and livestreaming moderator extraordinaire, Ross Brand. Here’s the video.