Aug 17, 2019; Nashville, TN, USA; New England Patriots quarterback Tom Brady (12) before the game against the Tennessee Titans at Nissan Stadium. Mandatory Credit: Christopher Hanewinckel-USA TODAY Sports

1. DOES LIVESTREAMING CARRY ANY COPYRIGHT INFRINGEMENT
RISKS?
Due to the coronavirus pandemic, many states, including California, have implemented strict shelter
in place orders, under which people are forced to perform their daily activities out of their homes. As
a result, use of livestreaming platforms, such as Zoom, Google Hangouts, WebEx, as well as,
Instagram Live, Facebook Live, and YouTube, has significantly increased. Businesses of all types
have also started using livestreaming platforms to provide services that were previously delivered in
person. These services range from religious services, educational services, and fitness classes to
weddings, funerals, graduations, and other social events. Because many of these livestreams include
unoriginal audio or audiovisual content, copyright concerns exist.
As one example, legendary DJ D-Nice has been offering a daily “Homeschool at Club Quarantine”
livestream series on Instagram Live in an attempt to bring a dance party into everyone’s homes. The
now-viral stream started out as an attempt to change DJ
D-Nice’s own feelings of isolation and now frequently
features drop ins by famous celebrities, such as Drake,
Jennifer Lopez, Michelle Obama, Dave Chappelle, Oprah
Winfrey, and Mark Zuckerberg. According to DJ D-
Nice’s representatives, Instagram arranged for
broadcasting licensing for DJ D-Nice such that his use of
copyrighted music does not constitute copyright
infringement.
Copyright protects original works of authorship, including literary, dramatic, musical, and artistic
works. Under the United States Copyright Act, copyright owners possess various rights, including the
right to perform the work publicly. Copyright infringement occurs when someone publicly performs
the musical composition, broadcasts an audiovisual work, such as a motion picture or television
program, without permission from the copyright owner.
For musical works, there are two separate copyrights that are frequently held by different parties.
The songwriting copyright is possessed by the songwriter while the sound recording copyright is often
held by the record label. Performing rights organizations license, collect, and distribute public
performance royalties for songwriters and publishers. Through these contracts, songwriters and
publishers are entitled to collect a royalty each time their song is played on the radio, at a restaurant,
retail establishment, fitness studio, park district facility, or online. In return, the performance rights
organization provides a “blanket” license allowing the facility or service to broadcast the songs in the

2. organization’s catalog. Livestreaming platforms typically do not have blanket licenses covering a
user’s use or performance of a musical work over the platform. However, as mentioned previously,
DJ D-Nice’s “Homeschool” livestream appears to be under such a license.
While a popular service, Instagram’s policies regarding copyright and the chance of being muted or
interrupted in the middle of a livestream remain uncertain at best. Instagram’s computers detect each
and every note that is played in a video that is posted, livestream or otherwise. When Instagram
detects copyrighted material in a livestream video, the stream is cut off, and the streamer and the
audience are both kicked out to the home page. This forces the streamer to start its stream over,
undoubtedly losing audience members in the process.
For instance, various gyms and fitness studios have begun livestreaming classes which, almost
invariably include, music. Instructors must be careful in selecting their tunes so as to avoid triggering
Instagram’s copyright infringement algorithm. Kicking the instructor and the class members out of the
feed kills the vibe and disengages the audience. As one solution, some instructors have decided to use
only remixes or lesser-known music.
As another example, DJs that are lesser known than DJ D-Nice (and therefore are less likely to have
a separate agreement with Instagram) constantly suffer the risk of any song clip they play triggering
the algorithm. Some DJs have noticed that the takedowns are triggered by the duration of copyrighted
content. These DJs have therefore avoided Instagram by quickly switching between songs and, also,
playing less popular music. Notably, such “solutions” may still constitute copyright infringement but
are less likely to cause an interruption in the livestream.
Penalties for copyright infringement can be expensive. In addition to actual damages for
infringement, if the copyright is registered, the copyright owner may be entitled to recover statutory
damages. Statutory damages range from $750 to $30,000 per work and even up to $150,000 if the
infringement was willful. While this country follows the American rule that each party is responsible
for paying its own attorneys’ fees, per statute, the copyright owner can also collect attorneys’ fees and
court costs. Thus, if pursued to the fullest extent of the law, livestreamers could be subject to a
number of severe consequences for copyright infringement.