User-generated content (UGC) has become the lifeblood of social marketing campaigns—but it is also a ticking bomb for marketers who neglect intellectual property rights.
Although social media users are awaking to the reality that they don't control their public photos and videos, people are still sensitive about how those photos are monetized—and users will draw a line.
Though most marketers realize that repurposing UGC without permission is risky business, they haven't stopped the practice.
The Necessity of Respecting Digital Rights
The idea of UGC devolving into a costly legal battles and messy PR spectacles is a scary thought for most marketers. User-generated videos and photos, such as the successful ALS Ice Bucket Challenge and recent Super Bowl campaigns, have sparked unparalleled levels of participation, excitement, and "virality."
Staged, professional images simply don't deliver the same raw emotion and authenticity as UGC.
Moreover, UGC is especially popular with the coveted Millennials who now spend 5.4 hours per day or 30% of their media time with UGC and trust it more than any other form of content.
Nonetheless, social networks and brands continue to play with fire.
Regardless of how much people trust and enjoy social UGC, very few social users understand the legal rights they shed when they check the "I Accept" box.
Facebook, for instance, retains the right to use public content any way it chooses and can even sub-license rights to another company. Twitter has "a worldwide, non-exclusive, royalty-free license (with the right to sublicense)," and Flickr, too, has the right to use and monetize images in virtually any way the brand (or its parent Yahoo) sees fit.
Will the social networks ever take advantage of these rights? Maybe... but not without public outcry.
Cautionary Tales About UGC
Instagram learned its lesson the hard way in 2013, after writing this gem into its terms of service:
"To help us deliver interesting paid or sponsored content or promotions, you agree that a business may pay us to display your username, likeness, photos, in connection with paid or sponsored content or promotions, without any compensation to you."
The social network lost half its active users within a month and was forced to renege on the new terms.
Instagram, Facebook, Twitter, and Flickr still could do the exact same thing based on their current terms of service. Semantics matter. Social media users know they're being monetized—they just aren't comfortable being turned into an advertisement without explicit consent and/or compensation.
Whereas social networks are skittish about deploying or selling UGC—even though they have established that legal right—many marketers don't share those qualms. When marketers and media outlets publish UGC without securing the legal right, their blunder is worse than Instagram's—and it can backfire badly.
Case in point: In 2013, an Idaho photographer sued BuzzFeed for $3.6 million after discovering that the media company had published one of his Flickr photos without permission. Another photographer won a $1.2 million case against Getty Images and Agence France-Presse (AFP) after they used photos he posted on Twitter and didn't ask his permission.
"Free" UGC photos become pretty expensive when you factor in the multimillion-dollar lawsuit.
Still, UGC is one of the most powerful tools in the marketing playbook, and we can all use it responsibly.
Three Questions to Ask Yourself About UGC
If you're a marketer, you can collect and manage UGC in various ways, ranging from crowdsourcing platforms to using content management platforms. (Full disclosure: My company Scoopshot does image crowdsourcing.)
Whatever tools you choose, you must address these three concerns about UGC:
1. How do I know an image is authentic?
If a person takes a photographer's image without permission, manipulates it, and posts it on social media, you can get in trouble for re-publishing that image.
In general, with images that are already posted on the Web, you can't verify the original creator, and you have no idea whether the images are authentic.
Beyond the potential lawsuit, authenticity is important if you're involved in brand journalism and other content marketing strategies that hold you to a high standard of journalistic integrity. You can't authentic images floating around social networks. You need to ensure that no one could access or manipulate a photo or video between it being taken and being delivered into your hands.
2. How do I know I have permission to use this photo?
Let's say you find a spectacular picture of four guys drinking your brand's soft drink on Facebook. You message the guy who posted the picture, asking for permission to feature it on your website. He consents.
If you publish that photo without obtaining signed model releases for all four people, you can get sued.
At the same time, reaching each of those people and obtaining releases is a laborious process for one photo. You can track everyone down, or you can use a UGC-collection tool that automatically obtains model releases within your workflow.
3. How do I purchase and prove image rights?
Before you publish a UGC image online, you need evidence that you've obtained or purchased the image rights from the original owner. Sure, you could use email records or invoices to show that you have rightfully transferred the license, but this gets extremely messy when you're collecting thousands of user-generated images.
Again, you can manually secure licenses or you can use technology to automate your process for obtaining and tracking image rights.
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This article should not scare you away from UGC—it is arguably the most compelling trend in marketing, and a key to connecting with Millennials. A deeper awareness of digital rights will empower you to minimize legal risks and deploy use-generated content more efficiently.
Taking images from social networks is tempting, and perhaps 99% of the time, nothing bad happens. However, a multimillion-dollar lawsuit over user image rights is going to damage your credibility and relationship with consumers.
Respect digital rights, or watch UGC backfire.
