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Assume Livestream Is Protected By Copyright — Unless It’s Not

Like everything else on the internet, assume livestream video is protected by copyright, and assume you cannot copy or reuse it without permission.  If the video contains music or spoken words, it is more obvious that the content is protected.  Even if the video is silent and from a fixed camera, it is likely that the person setting up the livestream video can protect the work from infringement.  

Copyright law requires only a minimal amount of creativity to exist, so aspects such as camera position, lighting, background, and focal depth of field, may individually or together constitute the creativity needed to clothe a video broadcast over the internet with copyright protection.  Viewers and potential copiers may not know what creative decisions went into setting up the broadcast -- or whether the creator was also saving an archive copy -- and thus risk liability if they assume no thought was used by the videographer.  

To solidify copyright ownership, the original videographer should take intentional creative steps to set up the camera a certain way, and adjust the scene to be conducive for the setting and video.  The owner should also make a simultaneous backup copy to satisfy copyright law’s requirement that a copyright exists only if the work is “fixed in any tangible medium of expression.”

Even if the livestream is protectable under copyright law, the viewers may, under the “fair use” doctrine, have some ability to store, reproduce, or use the video they see and capture.  The fair use test looks at (a) the purpose and character of the subsequent use, and if it is commercial or educational, (b) the nature and purpose of the original video, (c) how much of the broadcaster’s original video the copier is using, and (d) the effect the copier’s use has on the value of the original videographer’s work.  Often, a predominant factor is whether the copier is cutting into the videographer’s market share.  Use of a short portion of a livestream that seems to be broadcast for a non-commercial purpose and that has a goal other than what the broadcaster originally intended may provide some more leeway than the copier using the video for a purpose similar to the videographer’s, and for commercial purposes.  

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw. com