IP Rights and Infringement With Podcasts and Live StreamingCopyright, Trademark and Other IP Considerations When Creating or Producing Podcast or Live Streams

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TUESDAY, JULY 14, 2020

Presenting a live 90-minute webinar with interactive Q&A

Jennifer L. Barry, Partner, Latham & Watkins, San Diego

Sarang (Sy) Damle, Partner, Latham & Watkins, Washington, D.C.

Joe Wetzel, Partner, Latham & Watkins, San Francisco

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IP Rights and Infringement with Podcasts and Live Streaming

Sy DamleJoe Wetzel

Jennifer Barry

Today’s Panel

Sarang (Sy) Damle

Connectivity, Privacy & InformationPartner, Washington, D.C.

T +1.202.637.3332E sy.damle@lw.com

Joe Wetzel

Connectivity, Privacy & InformationPartner, San Francisco, Silicon Valley

T +1.415.395.8007E joe.wetzel@lw.com

Jennifer L. Barry

IP Litigation, Global Vice ChairDeputy Office Managing Partner, San Diego

T +1.858.523.3912E jennifer.barry@lw.com

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AGENDA

• Definitions: Podcasts & Live Streaming• Copyright Rights & Content• Avoiding Copyright Infringement• Protecting your Copyright Rights

• Podcasts• Live Streams

• Trademark Issues: Branding Your Podcast• Trademark Issues: Talking About Others• Right of Publicity Issues

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Definitions

• Podcasts• Audio only plus static branding (e.g., cover art, logo)• Fixed

• Live Streaming• Simultaneous audio and video presentation made available in real

time• Not fixed in advance

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Copyright Rights

Exclusive Rights Typically at Issue

• Reproduction • Only if live stream is fixed

• Distribution

• Public performance

• Public display

Image attribution: Mike Seyfang, Flikr, https://www.flickr.com/photos/mikeblogs/3020966666 (orientation and outline of image changed).

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Copyrighted Works

Types of Copyrighted Content to Consider

• Music two types of works• Sound recordings

• Public performance right limited to digital audio transmissions

• Musical compositions

• Artwork• Cover art (podcasts)• Graphics in live stream

• Guest-generated content• Interviewees• Bands

• Performing Arts, e.g., choreography, play (live streaming)

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Avoiding Copyright Infringement

• Licenses • Music

• Sound Recordings – Record Labels• Musical Compositions – Publishers

• Artwork• Audiovisual Works• Choreography, Play, Etc.

• Releases / Assignments from Guests & Commissioned Artists

• Protects you and ensures your ownership of copyrights

• Use Original Content

• Fair Use

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Protecting Your Copyright Rights: Podcasts

• Copyright Protection – automatic upon fixation of your original work

• Registration of Copyright – secures important, additional benefits

• Consider all works involved• Each podcast episode• Cover Art• Music you composed and recorded for the podcast

• Each podcast must be individually registered

• Carefully Evaluate Hosting / Platform License

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Protecting Your Copyright Rights: Live Streams

• Copyright Protection – only protected if fixed

• Copyright law allows for fixation and streaming to occur simultaneously

• Must ensure that all licenses for live-streamed content allow reproduction, which will occur if stream is fixed

• Carefully Evaluate Streaming Platform License

• Registration of Copyright

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Trademarks: What’s In a Name?

• Tension between branding vs. trademark• Who got there first? Always search• Protecting your name

• Protectable mark• Use• Registration• Domain names and social media usernames

• Related goods and services > expansion (dream big!)• Logos

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Trademarks: Naming Names

• Talking about other products, services or companies• Fair use considerations• Consent

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Right of Publicity Issues

• Using another’s name, image, likeness, voice• For commercial purposes• Usually celebrities• Patchwork of state laws• Scary remedies• Get consent in writing

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