Lights, camera, action… key legal considerations when publishing online recordings and delivering live performances

With Boris Johnson’s latest lockdown announcement, businesses need to find new ways to continue to provide services to their customers, and continuity to their staff, following Covid-19 related office, school, university and gym closures (to name a few).

The majority are turning to technology, and we have already seen a swift increase in the provision of online services. From education providers delivering online tutorials and gyms, to personal trainers delivering live exercise and dance routines. A popular lifestyle guru appears to have been a life saver to many parents during the P.E. section of the home-schooling day!

It is fantastic that technology is being embraced in such a swift and innovative way. Online recordings and live performances will be an extremely important way for schools, universities and businesses to ensure continuity over the next few months. However, to avoid any legal action, liability or reputational damage they must consider the content, and people involved, in any recordings to make sure all necessary consents and licences are obtained, and content is appropriate in the circumstances.

Performers rights

Anyone who delivers a ‘performance’ has rights to control whether that performance is recorded, whether that recording can be copied and how it can be distributed to the public. A “performance” includes dramatic and musical performances and readings or recitals of written works, which could include the delivery of university lectures, dance workshops and even lively audience participation. Where an individual or business records, films, distributes or broadcasts a ‘performance’ without having obtained consent from the performer/s these rights will be infringed.

Data Protection

In addition, by recording identifiable individuals, businesses will be processing their personal data and must have a lawful reason for doing so. If any sensitive personal data may be revealed from the performance (such as ethnic origin or any disability or medical condition), explicit consent must be given before recording. In any event, individuals must be informed of the purposes for which any recording or live performance will be used, and their legal rights in respect of their personal data. Following the General Data Protection Regulation which was introduced in 2018, businesses may suffer large fines for misuse of personal data, so it is crucial that the processing of personal data is dealt with appropriately.

Third Party Intellectual Property Rights

When making a recording, or delivering a live performance, it is also important to consider any materials used within it. Use of intellectual property of another person in a recording or performance without their or their agent’s consent or an appropriate licence would be an infringement of their rights and could lead to legal action. This might occur if a poem is recited as part of an inspirational vlog; Spotify is used in the background of a live exercise stream, or someone else’s logo or slogan is used as part of the recording. 

It’s not all doom and gloom though! When using intellectual property rights and personal data there are some exceptions to the rules and consent is not required in certain circumstances. For example, subject to certain conditions, extracts from copyright material such as newspaper articles, books, musical scores and art can be used for “illustration for instruction”, “criticism or review” or “parody”. This is relied on by a lot of education providers, journalists and vloggers.

Content

Businesses should also consider the content of any recording or performance. Although everybody has freedom of speech, businesses must be mindful of whether any comments, content and/or performances included might cause offence, harm or be misleading to others. They should have a policy to appropriately consider and take down any offending content if necessary. It will be important to consider the policies of any third-party social media platforms, such as Instagram, on which content is posted in this respect too, as they will remove such content, and, in the worst cases, block account if your content is considered offensive on multiple occasions.

Not acting quickly to remove offending or misleading content can result in damage to your reputation and credibility and, in some cases, reduce the number of your followers or customers. There have been various high-profile cases recently involving Instagram and the Advertising Standards Authority relating to celebrities misleading consumers by not appropriately labelling advertisements with the label ‘#ad’ and incorporating sexually offensive content. These posts have had to be amended or removed promptly to avoid further action or fines.