The Wall Street Journal recently ran an article called “Smile! Marketing Firms Are Mining Your Selfies.” It’s just the kind of story that encourages me to take a break from my legal duties here long enough to write a response. As an attorney with Thismoment, hashtag user-generated content (what we call “hashtag UGC”) and discussions about who owns the rights associated with content from social networks energizes me (read: I nerd out). So here I am.

The article painted a fairly negative picture of companies and brands that use public technology to gain access to photos publicly shared on social platforms like Instagram or Twitter because — the Wall Street Journal argued — many users “may not intend to promote, say, a pair of jeans they are wearing in a photo or a bottle of beer on the table next to them.”

The Wall Street Journal is right that there are some gray areas and arguably improvements to be made. But there’s another side to the story that I’d like to propose:

• In some cases, users of Twitter or Instagram use a specific hashtag when interacting with a brand campaign such that they could not have meant for anything but to engage with that brand
• Some brands are using cutting-edge technology like Thismoment’s Closed-Loop Confirmation (“CLC”), which allows end-users to give those brands explicit permission to use those people’s images in its marketing materials (without giving up any ownership!).

In short, the social space may not be perfect when it comes to using content from social platforms, and some brands are still learning about best practices when it comes to incorporating user-generated content in their marketing campaigns, but it certainly isn’t an apocalyptic landscape.

There’s tremendous promise for hashtags and UGC: brands want to engage, customers want to participate and both are finding the best ways to make that possible. And in our experience, the platforms aren’t intentionally looking to be nefarious about any of this. In fact, both Instagram and Twitter spend an inordinate amount of time thinking about how to create the *best* end user-experience on their platforms. The challenge, however, is that the legal terms and conditions vary between the social networks — as do user expectations.

A Crowdtap study found that millennials trust user-generated content 50% more than print or TV media. Given this statistic, it is no surprise that brands are eager not only to engage with influencers and fans on the social media networks where they are, but also to use relevant and powerful content that best represents their companies. In fact, an ODM study found that 74% of consumer buying decisions are influenced by social networks.

Given the nebulous landscape, one solution many brands are turning to is a rights management technology solution, which allows the brand to communicate directly with the end-user via a Tweet (on Twitter) or a comment (on Instagram or Facebook — and soon, YouTube), and explicitly asks the content poster for permission to use his or her content prior to posting it. Regardless of whether the end-user reads a social network’s terms of use, many brands are trying to do right by the end users.

For example, while Instagram pictures are still owned by the users that post them, there are some Instagram users who are willing to share those rights, and just need the mechanism to do so — a functionality which Instagram doesn’t currently offer.

Moreover, brands only solicit these permissions to use content based on specific hashtags, so that users are not surprised when they receive a Tweet or comment from the brand requesting permission to repost that piece of content. This ensures a good user experience on the social network as well as a “belts-and-suspenders” rights management approach to content marketing.

Win. Win.

As the Wall Street Journal points out, some brands are trying to take advantage of the wealth of content from the social network platforms without seeking proper approvals, but let’s not ignore the brands that are trying to do the right thing — the ones that have leveraged robust technology solutions to help navigate a complex policy, legal, and social milieu. The integration of hashtag UGC is creating a more genuine culture of marketing and advertising. And — take it from this lawyer — rights management technology is one way to get even your lawyers on board.

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The recent news about Katherine Heigl suing Duane Reade — for repurposing a photo that celebrity paparazzi site Just Jared took of her walking out of a Duane Reade store — highlights an important lesson for brand marketers when it comes to content and social media: images found on the internet may not always fair game for brand marketing.

User-generated content, or “UGC” for short, which has proliferated with the ubiquity of smart phones — whether in text, picture or video format – is at the heart of many prominent marketing campaigns today.

Technology platforms help marketers identify UGC through both search and hashtags, which function as signals in order for users to find and follow other users or topics of similar interest. The use of hashtags in Superbowl commercials since 2011 has had a staggering 38X growth in popularity. Brands are listening and discovering the impact that incorporating UGC into their marketing strategies can have. In cases like Sephora’s Beauty Board, innovative marketers are demonstrating how to turn UGC into sales.

The hiccup happens when marketing teams propose a UGC-centric campaign, and then the lawyers freak out.

On behalf of those of all lawyers who have failed to be as excited about your awesome ideas as you were, I’m sorry. We haven’t always done a good job of explaining the legal concerns we are trying to navigate. It’s only fair that you understand the concerns so that you can help design your marketing strategies with considerations in mind.

Here are just some of the issues your lawyers may be tweaking about:

1. Copyright.

In the past, companies have been on the hook for displaying content to which they don’t have the legal rights. And copyright infringement penalties can be huge. In one case from November 2013, a court awarded a photographer $1.2M in copyright damages because his photos were used by news agencies without permission. Other cases include a photographer suing asking for ~$3.6 million for unauthorized use of a Flickr photograph, and another photographer asking for $2.1 million for the wrongful use of 14 photographs by a popular blog.

When leveraging UGC on your website, you might want to ask your lawyers if it would be appropriate (or pre-emptively propose that) the site have a DMCA notice-and-takedown procedure in place. The Digital Millennium Copyright Act (the “DMCA”) says that websites that host UGC may be safe from copyright liability if they follow certain procedures. I won’t go into details of that here, but in short, if someone makes a complaint about copyright infringement and your company takes the content down from your website immediately, your company may be protected from liability.

Implementing the DMCA process has become relatively common on websites that host UGC, but it requires you to work carefully with your legal team to be vigilant in responding to complaints that come through.

2. Privacy.

When users upload images or videos, that content sometimes includes other people. Nearly every state in the United States has a law that protects individuals’ privacy. In short, this right is the right of individuals to control how some identifying aspect of his or her identity (like his or her image or voice) be used – especially in commercial contexts. Moreover, in the United States, courts have said that people have a “reasonable expectation” of privacy when they aren’t in public.  Thus, for UGC, your lawyers may be trying to sift through all these issues.

As in the Katherine Heigl case, if those images include celebrities, there are similar issues and best practices you could explore.

3. Defamation.

Although the Communications Decency Act (the “CDA”) was originally implemented to regulate pornography on the Internet, today it is also used to address defamation on the Internet as well. Similarly to the DMCA I mentioned above, the CDA has a safe harbor clause that can grant legal safety to third-parties that host content. So, for example, while a blogger may be liable for content they publish themselves, they may not be on the hook for problematic comments someone else posts on their blog so long as they are just hosting that content as a third party.

And honestly, those are just some of the legal issues your lawyers are wrestling.

The good news, however, is that our interests actually align.

::gasp::

At the end of the day, we both (the marketing people and the lawyers) want to put out good, high quality, original UGC.  We also both want to not surprise the end users with how their content is used so that brands can continue to engender trust with their consumers.

As an attorney in the digital space, I have come across a lot of marketing professionals who are well-versed in working “around” the lawyers (read: avoid them).  And that’s because many of the cutting-edge marketing ideas in the marketing space are met with “no.”

But instead of just taking “no” or avoiding the lawyers altogether, I encourage you to ask your lawyers to explain the issue so you can understand what the concerns are, and ultimately work together to find a solution.

Contact me at @rosenbaum_tm

(*Note: This blog post is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.)

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Most of my professional life has been spent working with companies and organizations that are protecting, expanding or reinventing their brand identities in the digital world. Although I now work in-house at Thismoment, the first part of my legal career was spent at law firms helping brands navigate the opportunities as well as the pitfalls in cyberspace.

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