Millions of users are on social media every day hashtagging, tagging brands, and submitting content, and many of them are thrilled to have you share their posts back to your fans. Whether they're just having fun, or they dream of being an influencer, this amounts to free content that only takes a moment of your time. However, you need to tread lightly here to avoid mistakenly using copyrighted materials that you do not have the right to use.
DISCLAIMER: We are not lawyers, so if you have a question, consult your attorney. Below are some common practices used by many brands, but we advise using caution with content unless you're completely sure you have permission to use it.
How Copyright Owners Give Their Consent
1. Direct Consent - If you see a photo you like, you can simply DM or ask in the comments if the person minds if you share it. If someone says yes, you've got a rock solid case for consent to use it. Make sure to screenshot the interaction and store those screenshots for a bit.
2. Hashtag Consent - To streamline this process (and make it easier on themselves) many brands will comment and include a hashtag that indicates the consent. This allows the brands to later find the content again. The interaction would go something like this in the comments:
@wildflowerdigitalmarketing: We'd love to share your photo on our profile. To give permission, reply #yeswildflowerdm
@photoguy #yeswildflowerdm Thanks!!!
The advantage to this strategy is that you can approach several people with cool photos and then review your hashtag later to see who might have agreed, without having to keep track of who you've been messaging.
3. User Submission - Ask for users to email you content that they'd like to be shared, thus creating a chain of consent documenting that the photo was submitted. Content can be submitted to an email address or via DM, and you can verify consent by having them include a note about consenting to use.
4. Implied Consent - Implied consent is the least likely of these options to hold up in court, but is fairly common throughout the internet, because it is very easy for brands to implement. To be clear about implied consent, brands will often set up a very specific tagging and hashtagging protocol in their profile. This is an example of a sharing push that you would put into a profile:
We'd love to share your content! To submit your photos, include the tag @wildflowerdigitalmarketing and #WildflowerDMSubmissions
Note that the more specific and obvious your hashtag is, the more likely this consent would hold up in court. For instance if this instead listed the hashtag #ilovewildflower, the implied consent no longer exists, because it is a hashtag someone could accidentally use without understanding they were giving consent.
Struggles with User-Generated Content
1. You're relying on the user's word that they own the content. Copyright infringement is rampant on platforms like Instagram, and unless you know and recognize the user, you can never be certain that content submitted is their own.
TREAD LIGHTLY HERE BY: Reviewing a user's profile and making sure they look legit. Red flags include lack of consistency in photo location, lack of consistency in the people featured in photos, and widely varying photographic style. If a photographer approaches you and says that a photo is theirs, it's best to give them the benefit of the doubt, and give them the information about where you got the photo, apologize, and offer to remove the content immediately.
2. Users don't always understand agreements with professional photographers. In some cases, a photo will be of a user, but a professional photographer may later approach you and say they did not give permission for the photo to be shared by a brand.
TREAD LIGHTLY HERE BY: Look through the photo caption to see if a photographer is tagged. If so, reach out to the photographer and ask them if the photo is okay to use. Again, if a photographer reaches out and explains that they own the copyright to any content you use, apologize, explain the situation, and offer to remove the content from your profile immediately.
3. People on the internet can be crazy. You might think you have permission to use a photo, and then have a user turn around and suddenly act like they never gave you permission.
TREAD LIGHTLY HERE BY: Document your interactions - if someone's gonna pull the crazy card, they may delete comments where they gave you consent - this is easy enough to document with a screenshot. Save a folder of screenshots on a cloud drive like gDrive, just in case anything ever comes back to haunt you. Again, it's probably not worth it to try and argue your case here, we would recommend showing them the screenshot where permission was given and then offer to delete the content.