Fair Use and Copyright Issues
To qualify for copyright protection, a work must be creative, original in the sense that it is not copied from another source and contains at least a minimal “spark” of creativity, and must be fixed in a tangible medium, meaning it must be captured in a physical or digital form.
The doctrine of fair use in intellectual property law allows individuals to use copyrighted material without authorization, provided the use serves purposes such as criticism, commentary, teaching, scholarship, or research, allowing the user to avoid copyright infringement.
Transformative use, which involves repurposing the original work by adding new expression, meaning, or message, is another form of fair use. However, rebroadcasting content without adding original input or context typically does not qualify as transformative and may fall outside the scope of fair use. It’s essential for streamers and content creators to understand the boundaries of fair use. Merely crediting the copyright holder or disclaiming intent to infringe does not establish a valid fair use defense.
How to Properly Use Other People’s Work
Creators often face risks when incorporating others’ work into their own content. On platforms like YouTube, for instance, videos may be demonetized if they include copyrighted material without proper permission. The responsibility here is not solely on creators; brands also have a duty to respect intellectual property. For example, a company cannot use a TikTok creator’s video or audio in an advertisement without obtaining permission.
Many of these issues can be avoided through simple, proactive steps. Reaching out to the copyright holder ahead of time to establish even an informal agreement can help prevent future disputes over fair use or infringement. Ultimately, creators must understand the boundaries of what they can and cannot legally incorporate into their content.
License Requirements
While formal licenses are not typically required just to stream, users must still comply with all platform policies and terms of service. A major concern in this space is copyright compliance, as streamers are not permitted to include copyrighted music or other protected content in their streams without proper authorization. Violating these rules can result in takedowns, content removal, or even account bans.
Streamers should understand that most music is protected by copyright, often involving multiple rights holders. These can include the songwriter, composer, performer, producer, record label, music publisher, distributor, and even the estate of a deceased artist. If a streamer wants to use music they do not own, they must obtain permission from the appropriate rights holder, usually by securing a license. This legal agreement allows limited use of copyrighted content without transferring ownership. Even performing cover songs on a live stream can potentially violate copyright, particularly under stricter platform guidelines like those enforced by Twitch.
Infringement When it Comes to Gaming and Streaming Music
Streaming video games has become increasingly popular among content creators. Generally, streaming gameplay falls under fair use, however, some games have specific restrictions that require explicit permission from the publisher to stream. Video games are considered intellectual property, and monetizing streams that feature them often requires appropriate permissions. Because some publishers prohibit public streaming of their games, it is crucial for streamers to review the content usage policies of gaming companies. Conversely, certain games may have publicly available streaming policies that allow creators to broadcast gameplay without prior approval.
Music copyright infringement is one of the most common issues faced by streamers, as many play music in the background of their broadcasts. Using music without a proper license typically constitutes infringement, which can lead to takedowns or channel bans. Platforms like YouTube and Twitch employ automated systems to detect unauthorized music in streams and enforce copyright rules accordingly.
Takedown Requests from the Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a crucial copyright law that addresses online copyright issues. One of its key features is the safe harbor provision, which protects internet service providers and online platforms from liability for copyright infringement committed by their users. As long as platforms follow the rules established by the DMCA, they are shielded by this protection.
Safe harbor provisions separate the user’s liability from that of the platform, allowing the platform to avoid legal consequences arising from the actions of its users. To qualify for safe harbor protection, platforms must have no prior knowledge of the infringement, promptly remove infringing material when notified, terminate users who repeatedly engage in infringing behavior, and maintain a system for processing DMCA takedown notices.
Trademark Issues
It’s crucial to understand that copyrights and trademarks are two separate and distinct concepts, with very different rights. While copyrights protects “works” (books, songs, images, etc.), trademarks protect “brands.” To qualify for trademark protection, a mark must meet several key requirements. First, it must be used in interstate commerce within the United States. Second, the mark must be distinctive and serve as a source identifier that differentiates it from other companies. Lastly, if the mark is a trade dress, which is the design or packaging of a product, it must not be essential to the product’s use or purpose.
If a streamer uses a trademarked logo or brand name without permission, they may face tarnishment claims if their use harms the brand’s reputation. To minimize risk, streamers should avoid displaying trademarked logos, especially in video thumbnails or prominent placements. Additionally, if a streamer refrains from speaking negatively or disparaging a brand, they are less likely to encounter dilution or tarnishment issues. Dilution can also arise when an influencer promotes one brand and simultaneously endorses a competing or conflicting brand, undermining the value of the collaboration. Since brands invest in influencers to create positive and exclusive content, conflicting promotions can defeat the purpose of such partnerships.
Defamation–Statements made on air
Because information shared on a stream can spread rapidly, defamation is a significant concern in the streaming community. If a streamer makes a false accusation against someone which causes harm, defamation claims may arise. While streamers are allowed to discuss others, their statements must be truthful and accurate. It is essential for streamers to clearly distinguish opinions from facts to avoid legal issues.
The legality of recording and posting conversations or phone calls varies depending on whether the jurisdiction follows one-party or two-party consent laws. For example, Florida is a two-party consent state, meaning that recording and distributing a conversation without the consent of all parties involved is a third-degree felony, punishable by imprisonment or substantial fines. Additionally, those who release such recordings may be subject to civil lawsuits for damages.
In contrast, one-party consent states require only one person in the conversation to be aware of and consent to the recording. Thirty-seven states, including Washington D.C., Georgia, New York, Texas, and Tennessee, follow this rule. Thirteen states, such as Florida, require consent from all parties involved, classifying them as two-party consent states.
If you have questions or would like to learn more about legal rules regarding social media and content production, do not hesitate to contact one of our experienced business attorneys at EPGD Business Law in Miami, Florida. Call us at (786) 837-6787 or email us to schedule a consultation.
EPGD Business Law is located in beautiful Coral Gables. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.
