How to Legally Use User-Generated Content

January 31, 2019 by Leave a Comment
https://www.flickr.com/photos/zoidberg72/16243539933
Selfie by dr_zoidberg from Flickr (Creative Commons License)

Here’s a question I get from companies and their marketers: What are the legal dos and don’ts for using user-generated content? These are situations where a company wants to use a photo, video, or text created by one of their fans, usually from a site like Instagram, Facebook, or Trip Advisor. Many companies merely want to approach the person through the platform where they found the content they want to use and ask for permission to use it. While this strategy is convenient, it may not be in the company’s best interest.

Using Content Within a Platform

It’s easiest when a company wants to share someone’s post within the social media platform – e.g., sharing someone’s Instagram photo on the company’s Instagram. Many social media sites build this option into the platform where you don’t even have to ask for permission to share someone’s post on another’s account.  

Of course, I’m a risk-adverse lawyer so I tell my clients to review the terms of service first to see what happens just in case it turns out the person who created the post you shared didn’t have the right to do so and now you have to deal with the fallout. Depending on the circumstances, I might contact the person to ask the person if they took the photo (which would indicate if they’re likely the copyright holder), try to verify that the original poster is complying with the platform’s rules

Using Content Across Different Platforms

Here’s where it gets a little more complicated. These are the situations where you want to take content from someone’s post on one platform and share it on a different social media site, your website, or another third-party platform. For this situation, I recommend you have a contract drafted by a lawyer. You could have them create a template for you if curating user-generated content is part of your marketing plan.

If I were creating a contract template for obtaining permission to use content created by a user or fan, I’d likely include terms such as:

  • The user owns the IP in the content: either they created it or they have permission to use it
  • The user has authority to grant the company permission to use the content
  • The user grants the company a perpetual, irrevocable, worldwide, sublicensable, paid-in-full, royalty-free license to the company to use the content for any purpose without needing the person’s consent or credit, including the creation of derivative works (or in the alternative, that the user grants the company a copyright assignment)
  • The user will reimburse the company’s legal fees and damages if it is accused of wrongdoing because the company used the user’s content

Such a contract would also include boilerplate verbiage, like a dispute resolution provision that states how the company and user will resolve disputes if one occurs.

Always Apply Reality

In any potential legal situation, be sure to apply reality. If a company wants to use a photo with two people in it, whoever posted the image may not be able to speak on behalf of the other person in the photo, and you may need release from identifiable people to avoid being accused of violating their right of publicity.

Additionally, it will likely take longer to get permission if you want to use images and other content across platforms. Be sure to build that into your timeline if your marketing plan involves using user-generated content.

There are also those who may question whether it’s worthwhile to have a lawyer create a contract for these circumstances. When there are no issues, a contract may seem superfluous; however, contracts are imperative in situations where there is a dispute and/or the parties forget the terms of their agreement. When you work with your lawyer to create you contract, make sure it has provisions that will apply to situations that are likely to occur as well as the worst-case scenarios.

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Filed Under: Business Law, Intellectual Property, Internet law Tagged With: , , , , , , , , , , , , , , , , , , ,

The Undeniable Tour Day 14 – Keep Moving Forward

April 7, 2015 by 2 Comments

Open Road to the Horizon 2014-01-01 by Kristina D.C. Hoeppner from Flickr (Creative Commons License)

Open Road to the Horizon 2014-01-01 by Kristina D.C. Hoeppner from Flickr (Creative Commons License)

I couldn’t have asked for a better last day of The Undeniable Tour. It started with a walk by the water with Jay Thompson and then I saw some Seattle sites before hopping in the Maven Mobile (courtesy of my sponsor Web3Mavens) and drove south to speak at the Tacoma-Pierce County Bar Association. They were an incredibly engaged audience that wanted to know more about social media marketing options for lawyers. My day ended with dinner with one of my best friends from undergrad.

Last Day in Seattle - Visiting the Troll

Last Day in Seattle – Visiting the Troll

Now I’m sitting in my hostel reflecting on the last 14 days, everything I’ve learned, and all the wonderful people I’ve seen. My talk for The Undeniable Tour started with a quote from Yogi Berra: “When you come to the fork in the road, take it.” I encouraged them to challenge themselves to keep moving forward with their professional development, but that it wasn’t my job to tell them what to do. They had to figure that out for themselves. My job was to share my story about my journey and share tips based on what’s working for me.

When it comes to being involved on social media, there are many options to choose from and you can select platforms that play to your communication strengths and puts you in contact with your audience. (Remember that the purpose of social media is to interact with people. Don’t treat it like a digital billboard.) In addition to blogging, I’m active on Twitter, Facebook, YouTube, Google+, and LinkedIn. I’m active on some platforms more than others. My favorite platform by far is Twitter; it’s the easiest way I know to start a meaningful conversation with someone I want to meet.

If you’re thinking about getting involved on a new social media platform, here’s the process I recommend that you use.

  1. Create an account.
  2. Take 1-2 weeks to watch how others are using the platform. Learn about the lingo and observe what’s working for others.
  3. Start using the platform yourself.

It’s ok to start slow and it’s ok to make the occasional mistake. Like all new skills, you won’t do it perfectly the first time, or every time. The point is you’re there and you’re trying. Stay open and teachable. And remember that using social media is like becoming part of a community. Relationships and connections will be built over weeks and months, not minutes. Keep the long game in mind.

My challenge to myself is to reflect on the lessons I’ve learned from planning and doing The Undeniable Tour and applying them to my professional and personal life. (There is no distinction between by professional and personal lives. It’s all me.)

If you want to talk with me about The Undeniable Tour please shoot me an email.

The Undeniable Tour would not be possible without my awesome sponsors: Web3Mavens, Enchanting Lawyer, Total Networks, and Attorney at Work.

All Tour Sponsors

Filed Under: The Undeniable Tour Tagged With: , , , , , , , , , , , , , ,

What’s Up with the Disclaimers on Facebook?

June 7, 2012 by 4 Comments

Avisados by Daniel Lobos, Ruth Carter

Avisados by Daniel Lobos

I’ve had multiple people ask for my take on the following disclaimer that lots of people are posting on their Facebook timelines:

Warning: Any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photographs, and/or the comments made about my photographs or any other “art” related posts on my profile. You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee(s), agent(s), student(s) or any personnel under your direction or control. The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law.

UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE

Apparently people think that rules regarding others’ use of their information and intellectual property changed when Facebook became publicly traded and that posting this disclaimer will prevent others from using their photos and other information contained in their profiles. I hate to burst your bubble, but it doesn’t.

When you signed up for Facebook, you agreed to the terms of the site. The fact that Facebook is now publicly traded doesn’t change anything related to how Facebook can use your information that you willingly posted to your profile.

The current Facebook terms state that you gave Facebook a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any [intellectual property] content that you post on or in connection with Facebook.” This license ends when you delete the information from your profile. So if you don’t want Facebook to use any of your information or photographs, delete them.

Posting this disclaimer will have no effect. By using Facebook, you continue to agree to abide by the terms of the site. If you read Facebook’s terms and conditions, you will notice that there’s no provision that says you can change the terms. Your options are to accept the terms and keep using the site or to delete everything on your profile and stop using Facebook. You can’t manipulate the terms to get what you want this time.

If you want more information about this issue, check out the Snopes page on this topic.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, News Tagged With: , , , , ,

When Can Someone Post Photos Of You Online?

May 3, 2012 by 253 Comments

My Camera by Paul Reynolds

I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

No Pants Light Rail Ride 2012 by Devon Christopher Adams

Pictures of You in Public
You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

Pictures of You in Private Venues
When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

If you want more information about the legal rules regarding social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I also maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Cyberbullying & Cyberharassment, Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , ,

New Rules for Company Social Media Policies

February 9, 2012 by 2 Comments

Snark by Loozrboy

The National Labor Relations Board (NLRB) released an update last week with the latest developments in social media and employment. In a nutshell, this report says that you can say a lot online about your workplace and your employer and not get fired.

The law protects employees when they are engaged in a “protected concerted activity.” This includes discussions for mutual aid and protection about wages and work conditions with co-workers and third parties, statements where you are representing your coworkers or are outgrowths of previous employment discussions, and statements that are intended to induce group action. You can be pretty critical of your employer and/or coworkers without getting fired.

You can still get fired if your posts are defamatory, disparaging, or threatening or are simply gripes or rants.

The unexpected take-away from this report was how hard it is for employers to draft a social media policy that isn’t overly broad or doesn’t impede a protected concerted activity. You could tell that many of the employers in the report were thoughtful about their policy’s verbiage, and it was still found to be unlawful.

Based on the NLRB report, here’s what you can’t do with your company social media policy:

  • Restrict all public statements regarding the company,
  • Prohibit disparaging comments about the company on any media,
  • Prohibit employees from communicating with the media without prior authorization
  • Tell employees to avoid identifying themselves as the company’s employees or require approval to identify themselves as an employee,
  • Require all communications on social media sites to be honest, professional, and appropriate,
  • Prohibit “inappropriate conversations” and “disrespectful conduct,”
  • Prohibit engaging in unprofessional communication that could negatively impact the employer’s reputation,
  • Prohibit the disclosure of “confidential, sensitive, or non-public” information unless you provide examples,
  • Require employees to state on every post that they are stating their opinion and not the employer’s (but it’s ok to require this somewhere on their personal accounts), or
  • Require employees to bring “work-related concerns” to the company first.

The only policy described in the NLRB report that found to be lawful was narrow and specific. It prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

These policies are hard to write and a lawful one requires the employer to accept that they can’t control what their employees say outside of work and that, in a lot of cases, the employees can voice harsh judgment about the company without being at risk of getting fired as long as it’s a protected concerted activity.

Filed Under: Employment Law Tagged With: , , , , , ,

Cyberbullying: What’s A Kid To Do

January 23, 2012 by Leave a Comment

Mine Isa by Johan Viirok

Mine Isa by Johan Viirok

This post was originally published on The Undeniable Ruth in September 2011.

Last week, the world was saddened to learn about the suicide of Jamey Rodemeyer. This 14 year-old was repeatedly bullied by his peers since the fifth grade. To the outside world, it seemed like this was a child with enough self-esteem to overcome this adversity. He had support from his therapist, social worker, friends, and family. He even made a video for the It Gets Better Project where he said, “All you have to do is hold your head up and you’ll go far.” All of this support wasn’t enough to keep Jamey from taking his own life.

According to reports, Jamey was repeated bullied at school and online. It’s not uncommon for victims of bullying to remain quiet because they are too ashamed to report that they are being victimized. Also, many teens feel a need to be independent and handle their problems on their own. They need to know that they have resources and recourse for addressing cyberbullying when it occurs.

Here are my top three tips for responding to cyberbullying.

1. Limit Who Has Access To You Online
Jamey received hateful messages via Formspring. In his It Gets Better video, he admitted it was a mistake to create a Formspring account. It allowed people to send him hateful messages anonymously. I wish Jamey knew he could have avoided this harassment. You can adjust your Formspring settings to disallow anonymous postings. It won’t stop all the harassing posts, but it will stop anyone who is too cowardly to let their name be seen. Likewise on Facebook, you can adjust your settings so certain people can’t see you at all or so that only your friends can send you messages or post on your wall. On Twitter, you can block people who are harassing you.

2. Report Abuse To The Website Where It Occurs
If you’re being harassed on a social media website, report it! Formspring, Twitter, and Facebook all have policies against using their sites to abuse other users. The same holds true for email providers. I suspect these site start by warning users who violate their terms of service, but they don’t change their behavior, they could have their account suspended.

3. Keep A Record Of The Abuse
I know it’s hard to do, but don’t delete abusive posts, emails or text messages. Take screenshots of posts online in case the bully deletes it later. It’s easier to prove you’re being abused when there’s hard evidence. It’s not a he said-she said situation at that point.

It takes a lot of courage to stand up for yourself and report abuse. I know it’s scary, but remember that reporting abuse is a sign of strength, not a sign of weakness.

Filed Under: Cyberbullying & Cyberharassment Tagged With: , , , , , , , ,