By Kathleen Duffy

It’s the bottom of the ninth inning, two outs, with runners on base, everyone watches anxiously as “live streaming” steps up to the plate!  This scene accurately describes how everyone in the stadium feels about the legal intersection of streaming live sports today and its increasing popularity.[1]  In our world of live streaming and instant uploading, sports fans have the potential to strike out against the “intellectual property pitcher,” when they stream live sports games and then upload that stream to an internet forum for other users to view instantly.[2]  This relatively recent phenomenon is bringing up intellectual property violations related to copyright and trademark laws as well as several privacy concerns.[3]

All teams in the league are affected by the legal issues of live-streaming because it changes the traditional rules of the game.  The companies hosting these internet platforms are facing legal apprehensions related to live-stream uploads on their sites.[4]  Even broadcasters and televised networks are searching for ways to compete with this new live streaming opponent because now fans can stream live games from the comfort of their homes .[5]  Several factors may influence the legality of live streaming including the location of the sporting event, if the stream is for private or commercial use, and the privacy rights of all parties involved in the sporting event.[6]  Sports fans must be aware of potential legal implications for posting live video streams of sports games and companies need to be ready to balance business interests related to live streams without crossing legal boundaries.

This new aspect of live streaming could mean stealing someone else’s property in the legal ballpark.  Live streaming generates legal questions related to privacy standards, commercial and public use, potential trademark infringement, and even risks of exposing trade secrets.[7]  Fans should be on alert for factors like stadium location and the difference between uploading for commercial or private uses.[8]  Location is a key factor and fans should be aware of whether they have the right to be where they are filming the game.[9]  In distinguishing between rights of public versus private locations, fans should know that legally there is a diminished expectation of privacy at a public forum.[10]  Commercial use will also play a role because fans “may not film others for advertising or other promotional content without first procuring a release from that individual.”[11]

Suiting up in the catcher’s gear may be an important way for companies to protect their interest while balancing this “first-base” fine line.  Broadcasts should avoid using another companies’ trademarks as hashtags related to the sporting event to avoid infringement claims.[12]  Companies should also incorporate provisions in their terms & conditions to warn users about violating the copyright of others to avoid liability.[13]  Companies must also be diligent in promptly responding to right owners’ takedown requests to shield from liability.[14]  Live-streaming is only going to expand and all participants must be aware of how this area will be regulated in a way that is fair to sports fans, broadcasters, and forum-providing companies.

Overall, live streaming is evolving and changing the way users are consuming content which calls for regulations that will influence the whole batting line-up.  This topic impacts both our business and legal communities because live streaming affects companies providing platforms for live streaming, broadcasters who are trying to combat these competitors, and sports fans who are enjoying games and sharing those experiences with others online.[15]  Enhanced streaming is going to alter the framework of how companies protect themselves from infringers as well as competitors.  Several legal standards are impacted and all players on this new field will need to adapt in order to avoid “Strike Three” with substantial fines and lawsuits.[16]

 

 

[1] Benjamin Beck & Konstantin von Werder, Live Streaming Apps and Sporting Events- Copyright Law Concerns, Mayer Brown (Aug. 26, 2015), https://www.allaboutipblog.com/2015/08/live-streaming-apps-and-sporting-events-copyright-law-concerns/.

[2] See, e.g., Max Rettig, Man Fined $60,000 For Streaming Live Sports Illegally, Sporttechie (Aug. 30, 2018),

https://www.sporttechie.com/man-fined-60000-streaming-live-sports-illegally-sky-sports-premier-league-ott/.

[3]Marc Edelman, From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Steaming of   Commercial Sporting Events?, 39 Colum. J.L. & Arts 469, 469 (2016).

[4] Sara Hawkins, Legal Ins and Outs of Live Streaming in Public, Sara F. Hawkins Attorney at Law (Oct. 5, 2015), https://sarafhawkins.com/legal-live-streaming-in-public/.

[5] Matt Phillip, Tackling Illegal Streaming: How Sports Broadcasters are Balancing Technical and Legal Solutions, LawinSport (Aug. 20, 2018), https://www.lawinsport.com/topics/articles/item/tackling-illegal-streaming-how-sports-broadcasters-are-balancing-technical-and-legal-solutions.

[6] Sara Hawkins, Legal Ins and Outs of Live Streaming in Public, Sara F. Hawkins Attorney at Law (Oct. 5, 2015), https://sarafhawkins.com/legal-live-streaming-in-public/.

[7] Id.

[8] Id.

[9] Id.

[10] Charles Bowen, The Legal Risks of Live Streaming, The Bowen Law Group (June 29, 2016), https://www.thebowenlawgroup.com/blog/the-legal-risks-of-live-streaming.

[11] Id.

[12] Id.

[13] Hawkins, supra note 3.

[14] Bowen, supra note 10.

[15] Phillip, supra note 2.

[16] Julian Moore, Live Streaming Via Fans’ Mobiles- the Challenge for Sports Bodies and Broadcasters, Out-Law from Pinsent Masons (Apr. 22, 2015), https://www.out-law.com/en/articles/2015/april/live-streaming-via-fans-mobiles–the-challenge-for-sports-bodies-and-broadcasters/.