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.
