Brands can use Twitter's live-streaming app to hold special contests, have influencers perform demos, do live Q&As with customers and tease or reveal new products, attorney Brian Heidelberger says in this video. But a new platform doesn't mean anything goes.

1. Mini Law Lesson
Law of Twitter’s New
Live Streaming App - Periscope
Brian Heidelberger
bheidelb@winston.com
Twitter @briheidelberger
www.winston.com/bheidelberger

2. IMPORTANT DISCLAIMER
• I am not your attorney.
• This is not legal advice.
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3. What’s Periscope?
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4. 4

5. 5

6. 6

7. How Are Brands Using
Periscope
• Special Offers and Contests
• Influencer Marketing
• Showcase Company and Brand Culture
• Live Q&A
• Sneak peeks and teasers
• Livestreaming events
• Livestreaming trade shows
• Livestreaming product launches
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8. Interesting Facts
• Can’t upload content to stream (it’s live)
• You can only archive content for 24
hours on Periscope
• There are other live streaming platforms
 Meerkat is Periscope’s biggest competitor
• You can watch streams from people you
don’t follow
• You respond to comments live
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9. Standard Advice
• Don’t show celebrities w/out permission
• Get a release from people shown
• Frame your shot and control the
situation
• Clear it as if it were a TV commercial
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10. Showing People
Press Releases Have Been
Considered Advertising
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11. Showing People
Congratulatory Ads Have Been
Considered Advertising
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12. Showing People
Game Considered Protected by
First Amendment
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13. People
Magazine Article Wrapped in Ad
Protected by the First Amendment
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14. Showing People
Advertorial Using Dustin
Hoffman Not Seen as Ad
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15. Old Case
Corporate Documentary Found Protected By the
First Amendment
• Benavidez v. Anheuser Busch, Inc., 873
F.2d 102 (5th Cir. 1989)
• While video does boost corporate
goodwill, this does not turn the exempt
documentary into an actionable
“commercial” for the company.
 Use of individual was incidental
 produced as a public service film and for
educational purposes
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16. Use of People Without
Permission
• There is some risk that can’t be eliminated
• Create videos that are more educational than
“sales oriented”
• Depict people “incidentally”
 Brief is not always incidental
• Be wary of any celebrity depiction
• Use signage (“photographing for marketing
purposes”)
• Don’t archive
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17. Use of Music, Artwork
Without Permission
• Any use can raise challenges
• Brief is not necessarily incidental
• Background is obviously lower risk
• “Fair Use” or “Parody” may only provide
help where you are teaching,
commenting or criticizing the music, art,
etc.
• Don’t archive
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18. Parody Isn’t Always a Defense
• use of the tattoo did
not comment on the
artist's work or have
any critical bearing on
the original
composition.
• Judge said plaintiff
would "probably win"
the case.
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19. Third Party Trademarks
• Trademark standard is a “likelihood of
confusion standard” which makes stating
a claim harder for a trademark owner.
• Background is obviously lower risk
• Truthful and non-disparaging is
legitimate
• Don’t archive
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20. Trademark Infringement Hard to
Prove in Entertainment Properties
• Use of the bag (whether
intentional or
inadvertent) was
intended to create an
artistic association (as
opposed to commercial
• Does not allege that
filmaker used the bag to
mislead consumers to
believe that mfg.
endorsed the film.
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21. Claims About Your
Products/Competitors
• “If through product placement [in
entertainment properties], false or
misleading objective, material claims
about a product’s attributes are made,
the [FTC can take action under Section
5].”
 FTC, Letter to Commercial Alert (2005)
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22. Claims About Your
Products/Competitors
• Important to be very careful about
claims about your product or those of
your competitors
• “Short” doesn’t eliminate risk
• Better to focus less on product claims
and more on education and
entertainment
• Don’t archive
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23. youtube.com/adage
or
Youtube.com/brianheidelberger
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24. Twitter
@BriHeidelberger
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