Marketers considering the use of consumer-generated pictures as a way to engage on social media might want to think twice.
Some companies have picked up images that contain their products from sites such as Instagram or Pinterest, and used the pictures for advertising purposes without obtaining the consent of the individual who posted the photo. Consumers may have copyright and publicity rights in the images, and if a child under the age of 13 is depicted, the Children’s Online Privacy Protection Act requires that parental consent must first be obtained.
In addition to legal concerns, the effort to connect with consumers through the use of their personal images can also backfire. Reaction to having their pictures used runs the gamut: some consumers may be completely unaware that their image is featured in marketing, others may be unhappy about the use but are unwilling to spend the time and money to file a lawsuit, others may file a lawsuit, while some consumers are pleased by the publicity.
The New York Times recently considered the situation, and offered examples of the different responses. For example, Shereen Way posted a photo of her four-year-old daughter on Instagram wearing a pair of Crocs sandals that was identified with a hashtag, and had no idea the company used the image in a gallery of photographs on its website until a Timesreporter contacted her.
On the other end of the spectrum, 23-year-old Liza Day Penney told the newspaper that she is “always really excited” when her pictures appear on American Eagle Outfitters’ website, in part because the company once gave her a $25 gift card. “That was one of the things … that really encouraged me to continue to post and continue to tag and hashtag them as I wear the clothes,” she said.
For advertisers, obtaining consent is the best path toward avoiding potential conflict. In the example of Crocs, the company said it has a policy to get permission before making use of consumer-generated photos, typically by posting a comment such as, “We love your pic! In fact, we love to share photos like yours in our marketing, including social media, e-mail, in our stores and in print. Please reply with #CrocsOK to signify your understanding and acceptance to our terms.” The company also acknowledged that mistakes are made, as in the case of Way’s image, which was used before such a request was made, let alone accepted.
Why it matters: The situation will only become more complicated as social media continues to proliferate and brands seek out new and creative ways to connect with consumers. Advertisers seeking to avoid conflict should err on the side of caution and obtain consent prior to using consumer-generated pictures.