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So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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YES PLeaSe: A Legal Guide To Periscope And Meerkat

meerkat-vs-periscopeFor the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope.  Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media.  No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction.  In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow.  But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS.  Is it too much to say as brands develop a Go-To-Meerkat strategy?  It is?  Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about.  And, oh, how convenient, they spell out YES so we can make a great blog post title.  Those three concerns are YouTube+/-Engagement, and Saved Streams.  Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke.  So YES it is.

Because professional courtesy.

Because professional courtesy.

Also please know this is a highly dynamic area.  Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW.  So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions).  This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics.  But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.

YouTube+/-

Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube.  But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded.  Since these streams go out live you will not be able to review them for their content prior to publication.  That video your marketing team did with that catchy, unlicensed Top 40 hit?  Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams.  So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later.  Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent.  Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below).  If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages).  By the way, don’t invite that streambomber to your next livestreams.

Unless it's a dolphin.  Dolphins can photobomb or streambomb all they want.  It's the law.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.

Engagement

Both apps provide similar ways to engage with stream watchers.  Stream watchers can like a stream or send a comment to the broadcaster and those watching.  Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments.  Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast.  This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments.  Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks.  One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team.  The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.).  Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments.  There’s no right answer, it’s just something to think through.

Unless you have one of these.  Because now you have extra fingers to use and you are awesome.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments.  Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream.  That security issue aside, Meerkat faces another legal risk in terms of recorded sessions.  Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out.  In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image.  But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done.  So it’s something to consider.

Pictured: extensive legal analysis.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers).  The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed.  That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.

 

It’s exciting to see a new function and communities spring up in the social universe.  We haven’t had a significant new step like this since Pinterest many years ago.  Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

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