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: , , , , , , , , , , , , , , , , , , ,

Where to Put “#ad” on Instagram Posts

July 7, 2016 by 2 Comments

Free StuffLast month, Rosie and I attended BlogPaws – a conference for pet bloggers – where I taught a workshop with Chloe DiVita and Tom Collins on the Legal Dos and Don’ts of Blogging and Social Media.  We did a three-hour presentation that focused on copyright and the federal rules that apply to product reviews, campaigns, and promotions.

We reminded the audience that the Federal Trade Commission (FTC) requires people to provide their honest and accurate opinions when writing product reviews. If you have a relationship with a company – whether you got free product, you have a contract with them, or even if you have personal relationship with someone in the company, you always have to disclose these relationships – clearly and succinctly – in every post and platform you mention them. We also reviewed the Lord & Taylor fiasco. This was a good reminder for social media influencers not to assume the companies they work with will know these rules or provide proper guidance

After the workshop, I did one-on-one sessions with attendees. Per the conference organizers, each person only got 10-minutes, so it was like a legal information kissing booth – sit down, ask one question, and get out. One attendee asked, “I understand that I have to put #ad on all Instagram posts when I have a relationship with a company, but are there rules about where I have to put it?”

Hmm . . . that’s an interesting question, and one I’ve never heard before.

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

The purpose of the FTC rules is transparency. The law requires posters to inform others of potential bias due to a relationship with company so whomever reads the post can consider this in conjunction with the content of the post. This disclosure must be clear and conspicuous,  you can’t put it behind a link. The easiest way to make this disclosure is to include “#ad” on each applicable post.

I grabbed my phone and scrolled through my Instagram feed. Each post cuts off after the first three lines until you click on it to read more. Based on this, it appears the prudent place to put “#ad” on an Instagram post is to put it in the first three lines so anyone looking at their feed on their will know when you have a relationship with a company.

After the conference, I looked at Instagram’s Terms of Use. Although their terms are impressive and thorough, there are currently no provisions explicitly about when and where to use “#ad.”

The law is constantly trying to keep up with technology, including the internet. If you’re a social media influencer, keep up with changes in the FTC rules regarding disclosures on product reviews and promotions. and other rules that apply to your posts. If you have questions about internet law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Hat tip to Rosalyn of Golden Woofs and Sugar the Golden Retriever for this question.

Filed Under: Internet law Tagged With: , , , , , , , , , , , ,

Richard Prince’s “New Portraits” – Art or Infringement?

May 25, 2015 by 5 Comments

Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , , ,