4 Legal Issues Brands Need to Understand Before Livestreaming on Periscope or Meerkat

It's easier than ever to create video—and headaches

Social marketing has always seemed dangerous for brands, and that's simply because things can go badly in real time. We've all seen the #fails.

And now enter two live-streaming video apps that have everyone talking—Twitter's Periscope and Meerkat—which present even greater challenges, legal and otherwise, when compared to merely tweeting or posting Instagram photos. Industry observers advise caution with this new type of high-wire marketing.

"From a branding standpoint, livestreaming is an absolute train wreck in waiting," said Alan Chapell, a lawyer and head of his marketing consulting firm Chapell and Associates. "Somebody is going to screw up."

Indeed, what could happen when an alcohol brand shoots live video from an event or a marketer sets up a prank promotion capturing the unsuspecting public? What may occur when a celebrity's image or a copyrighted song is used? These have been constant questions for brands using social media and digital advertising in recent years, but the stakes are higher when video is involved, according to Chapell and other experts.

So, here are five things marketers should know to help them avoid accidentally wandering into a social-video disaster.

1. Celebrities could sue you

Ronald Urbach is an attorney focused on advertising and marketing and a co-chair at the firm Davis & Gilbert. He was reminded of actor Katherine Heigl's lawsuit against Walgreens for tweeting a picture of her at one of its Duane Reade stores. It was a $6 million lawsuit, settled out of court.

So what happens when a brand wants to livestream at an event attended by celebrities? The damages could be even larger than Heigl's demands when live marketing video is involved, Urbach said. "If it's a $6 million lawsuit over a photo, imagine what it would be for video content," the attorney said. "Video by definition has a broader audience."

Urbach said he's worked on lawsuits where celebrities have sued after becoming part of brands' social media efforts at live events like the Oscars and Grammys. So Urbach said marketers should be cautious filming at places like the red carpet or parades—or White House visits, for that matter.

2. Yes, you still need people to sign a release

Michael Krivicka is the co-founder of Thinkmodo, a marketing firm specializing in big stunts that surprise everyday consumers on video. So he has to deal with some of the legal issues that arise when putting regular people in your marketing. "Always get a release," he said. "You can't just put someone in a video or feature them in a closeup. They have to sign off."

He admits it would be tough to do his company's style of marketing on live video apps, because of the need to alert people that they are participants in real time. Since putting random people in your video could lead to trouble, and legal release forms are needed, marketers should plan ahead, so anyone who shows up knows they're being filmed, Krivicka said. So, before anyone pops into the frame, it's best to alert them, or avoid areas where random people are seen.

3. Frame your shot and control the situation

You need to be careful filming out in the real world, Krivicka said. There could be billboards for rival brands in the background or copyrighted songs blaring. "It should be a controlled environment," he said. "When you're live, anything can happen and anything becomes part of the stream."

4. Err on the side of caution 

Now that anyone can be a digital broadcaster, they should know the rules, Urbach said. "Think through some of the issues that may exist like defamation, libel and slander, who owns the content, the copyright, the trademark," he said. "If you're a brand marketer and this is commercial communication, you have to worry about the same things you have to worry about when you're doing a TV spot."