Murky Waters: Earned Media and Legal Rights

Today, thanks to the rise of social platforms and mobile devices, the practice of creating and sharing real-time content is becoming more ingrained in our daily lives. With this in mind, travel brands and destinations are looking to user-generated content (UGC) as a gold mine of authentic and evergreen media. Hotel groups are using guest photos to complement standard property shots, events are displaying real-time tweets showing live reactions, and others are simply re-gramming or re-sharing content to showcase genuine traveler experiences and stories. And for good reason: this type of earned media is 84% more effective in improving consumer engagement according to Nielsen. Plus, in a blind selection, 74% of millennial travelers chose this authentic media over professional or stock imagery as inspiring them to visit a destination.

However, while the use of UGC has boomed, the intellectual property laws underpinning use of third party materials by brands remain much the same. Yes, most social media platform terms and conditions grant broad rights to the platform itself to use creators’ posts for other purposes. However, these terms do not grant those rights to brands for commercial purposes. In this article, we’ll highlight some of the key takeaways that every travel marketer should keep in mind when delving into the world of authentic marketing. For a full guide to rights and earned media, head to www.sightseermagazine.com.

IF IT’S ONLINE, DOESN’T THAT PROTECT MY USE?

Images publicly available on the internet are not necessarily in the public domain, and many photographs posted on social media are covered by copyright law, as are videos (or any content such as music contained within a video) posted on sites such as YouTube.

OK, BUT I GAVE CREDIT…

Attribution or giving the source of the photo is not a defense to a copyright claim and does not mean that you do not have to obtain permission. While damages for copyright violations usually range from $740-$30,000 (for works registered with the Copyright Office), damages may be up to $150,000 for “willful” (or intentional) infringements.  For unregistered works, damages are relatively fact specific, and depend on any actual damages incurred, as well as the profits of the infringer that are attributable to the infringement.  

BUT WAIT, THERE’S MORE!

When soliciting and using UGC, brands need to think carefully about third party rights – obtaining consent from the person that posted the image, for example, may not always be sufficient.

For example, imagine that a destination sees a user-generated image on Instagram that it feels represents its location or aesthetic goals. The brand asks the traveler that posted the image for permission to re-publish it as part of a print advertisement in a prominent travel magazine. However, it then turns out that the poster of the content was not the actual creator of the image.  

That means that the poster did not actually own the copyright to the photograph (and as such, did not have the rights to grant the brand any rights to use the photograph), and was possibly just reposting it from someone else’s social media channel or sharing a photo taken for them by a friend or photographer. The owner (or creator, as applicable) of the original photograph could therefore assert a claim for copyright infringement.

What can your brand do to avoid such a situation? We recommend ensuring that you ask the user if they also took the photo themselves. If they did not, and you still want to use the image, you’ll need to find the original creator.

Similarly, imagine a hotel decides to use a user-generated photo and obtains consent from the user, but the photo includes an image of a famous person or recognizable brand logo – for example, a photo taken by a fan at a prominent auto show. The third party could assert a claim based on right of publicity or trademark, in addition to a claim for false association or false endorsement (depending on the context of the brand’s use).

While many brands on Instagram play hard and fast with these rules, they are still important to be aware of so that each marketing team can make informed decisions on their content strategies.

GETTING PERMISSION

Obtaining consent from users to leverage their content is an important step to avoid implicating any of the issues outlined earlier - it protects your brand both from legal and PR backlash. It’s also a way to endear your audience to your brand even more by showing that you appreciate their content and respect their rights.  When you communicate with travelers and have a real and positive exchange, they will be much less likely to turn around and bring a claim against the brand they just enjoyed interacting with.  

Note that in the majority of US states, including New York, written consent must be obtained to use an individual’s likeness for commercial purposes; however, in some states, obtaining “implied consent” may be sufficient – for example, by posting prominent signage stating that, by entering a certain area, an individual may be photographed for commercial purposes.

As illustrated by the above, there are different “levels” of consent, and the one that works best for each marketing team and legal department is going to vary from company to company. Here, you’ll find tips on how to evaluate the level of consent that is best suited to your use of the UGC, and above all, how to maintain a transparent approach with consumers. The main thing to really keep in mind though is that to the extent that you can, clearly describe to consumers the way in which their content is going to be used and displayed. While still possible, clear communication lessens the chance that you will receive a claim from the user.

LEVELS OF CONSENT

From most conservative to least

WRITTEN RELEASE

A written release, which is signed by the consumer (which can be in the form of terms and conditions that can be checked off by a user online), can be drafted to grant the brand or agency a broad license to use the content for any purpose and in any and all media. However, note that these releases can be narrowed by term and for specific uses of the content – e.g. an online video on a website.

USE CASE: This is best used in instances where the content will be a focal point of a high exposure ad or used in a permanent fashion.

ASK FOR PERMISSION

Reaching out directly to the poster is another outlet many travel marketers are using. This is an especially good tactic for brands seeking to increase their personal engagement with consumers. In looking at the averages of brands who have used Chute Rights to do this, consumers respond quickly, positively, and often create even more content about the brands after these interactions. In general, consent can be obtained in this manner by sending the user a message or comment stating the intended use and asking for permission to which the creator can respond yes, no or ignore.

HASHTAG CONSENT

Some travel brands and destinations are now foregoing prior written consent based on the theory of “implied consent” or “implied license.” This is best used for real-time, evergreen or ongoing engagement campaigns, and to aggregate a very large amount of content where no single image will be a focal point. It’s also best used by brands who have an already loyal and highly engaged following.

Consider whether you are obtaining consent from the actual copyright holder. When possible, investigate on the back end rather than relying on the user’s representations and warranties.

KEYS TO REDUCING RISKS OF HASHTAG CONSENT

  • Clearly disclose to consumers how their content will be used, and do not use the content beyond that scope.

  • Choose a unique hashtag and preferably make sure it’s branded. Do not just go with a destination or hotel name, as these will often be used by travelers regardless and do not show a real intent to participate in the campaign. For example, the Ritz-Carlton promotes the hashtag #RCMemories for their guests to use.

  • Provide appropriate submission terms and conditions with the call to action. Again, this is something the Ritz-Carlton makes clear by having the T&Cs next to their call to action. If the manner the content will be used and a link to the terms are both prominently disclosed, there is a stronger argument that the user was on notice that their content may be used in a certain way and provided the brand with the applicable consent to use the submission.

Some red flags to look out for:

  • Photos of celebrities

  • Brand logos

  • High-profile buildings

  • Extremely high quality or very low quality images are sometimes indicative of reposting from either the web (HQ) or by regramming (LQ)

NO CONSENT

If a brand chooses to use content to which rights have not been obtained on either an explicit or implicit level, such content should be used in a non-focal manner to reduce (but not eliminate) risk.  This tactic might be implemented during real-time advertising, such as a live stream - basically, when individuals’ images, likeness or content will not be saved for future use or shown at any future time, and the use is fleeting. In general, individuals that are not models, celebrities or photographers are less likely to object unless there is some type of permanent or continued use of their image. However, if footage were to be saved and used in further advertising or on social media properties, the risk would be heightened, since there would be a greater chance that individuals would a) see the use of their image and b) object to its continued use.  

This being said, given the relative practical ease of instituting basic consent procedures, or at a minimum, opt-out procedures, brands should always aim to build these into their game plan when developing and implementing UGC campaigns.

With the amount and variety of content created and shared by consumers online only rising, it’s vital that all brands take the time to develop their strategies for soliciting, using and engaging with this user-generated content across platforms. By understanding all the risks and implementing best practices, you’ll be able to develop a plan that makes both your marketing team and legal department happy.

PLATFORM RIGHTS 101

On Twitter, Tumblr, Instagram, Facebook, Pinterest and Snapchat, users retain ownership of any intellectual property they post to the platform. However, the platform itself is granted a broad license to use the content, as well as to make all posted content available to third parties selected or designated by the platform or officially partnered with the platform. On Pinterest specifically, you grant the platform and its users a license to distribute your content within the confines of the Pinterest platform.

Use of YouTube videos outside of the YouTube platform is prohibited without the prior written consent of YouTube or the respective licensors of the content. However, the terms of use also state that it is not prohibited to show a YouTube video through the Embeddable Player on an ad-enabled blog or website, provided that videos is not be placed on the website page for the purposes of the sale of advertising, sponsorships or promotions.

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This article has been adapted from The Social Media Rights & User-Generated Content Guide created in partnership between Chute and Davis & Gilbert LLP. Read the full guide at http://www2.getchute.com/chute-rights

The information in this article is provided for informational purposes only and does not constitute legal advice or legal opinions. This information is intended but not promised or guaranteed to be current, complete or up-to-date and should in no way be taken as an indication of future results. Provision of the information is not intended to create, and the receipt does not constitute an attorney-client relationship between the sender and receiver. You should not act or rely on any information contained in the article without first seeking the advice of an attorney.