Did I Just Give My #Permission? The Hashtag as Consent

Did I Just Give My #Permission? The Hashtag as Consent

The New York Times published an article about brands using user generated content (UGC) without explicit permission. When Shereen Way posted a photo of her daughter to Instagram with the hashtag #crocs, Crocs pulled the photo and posted it to their website with other UGC content.

It was only much later that Crocs sought explicit permission from Ms. Way, which she declined. And how did they ask for permission? “Please respond with #CrocsOK.”

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The Times article quotes a spokeswoman for Olapic, a visual marketing company, as saying, “brands do not always need to ask for permission to use a photo on their websites because users can give implied consent by tagging a company in their posts.”

In the age of social media, formal submissions mechanisms (e.g. uploading your photo through a website) have given way to much more expedient means like hashtagging. Brands use software to spider Twitter, Instagram, and Facebook to cull UGC.

Provocateur brand Calvin Klein built an entire campaign around #mycalvins which attracts aspiring models and the vain alike “for a chance to be featured in the #mycalvins gallery.”

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Nike Women has #betterforit, Nest has #caughtondropcamEven the Gray Lady, uses hashtags to collect UGC during breaking events like Hurricane Sandy to the more mundane like the Times’ “The Learning Network” soliciting photos with hashtag #NYTLNreads.

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In AFP v Morel, a jury in the US District Court for the Southern District of New York ruled against AFP and Getty when the wrongfully downloaded, misidentified, and licensed Daniel Morel’s images from the Haitian Earthquake. The ruling affirmed that Morel didn’t cede his copyright by posting the images to Twitter, and that AFP and Getty willfully infringed against him.

But Morel didn’t draw attention to his images with #gettyimages or #afp. There was no “implied consent,” and thus the jury effectively determined the infringement was image theft.

Amateurs with small followings are generally thrilled for the exposure (and increase in followers) that reposting can bring. Established social media icons and photographers who use social media professionally are more likely to consider legal action. In other words, savvy brands don’t steal from professionals.

Hashtags evolved on Twitter as a way to group tweets. They soon became the de facto method of keywording content, and users have used them literally (e.g. #cute, #cats) and ironically (e.g. #ihateitwhenthathappens). For young millenials and Generation Z, hashtags are a natural (and sometimes subconsciously applied) form of language. Whatever the case, hashtags (and geotags) are effective discovery mechanisms. They are incredible for brands looking for authenticity and visual proof from their consumers.

But does a hashtag imply consent?

Legally speaking, a lack of case law means the jury’s out. But for brands striving to connect with their constituency, it’s clear that more explicit permission is needed for brand-based tags (e.g. #calvinklein), or more complicated tags (e.g. #caughtondropcam) need to be used so that the claim of implied consent is more defensible.

 

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This article was written by

Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

There are 8 comments for this article
      • Tom at 11:08 pm

        I think its reasonable to think that your content will only be used in a way the platform supports – retweets on twitter, embeds on instagram.

        The use of those “re-gramming” apps has always seemed a bit wrong to me and ripping the image from the context of the app and using it on your website is a step even further in to wrong.

  1. Thomas Pickard at 12:27 am

    “…implied consent by tagging a company in their posts”

    Give me a break.

    Honestly, I expect a lot more from the New York Times when it comes to reporting.

    How about interviewing a lawyer, instead of a person in marketing?

  2. Spencer at 9:25 pm

    Definitely and underexplored topic. I think there’s going to need to be a lot more legal wrangling and public discussion to hash all this out (What about using their embed tools? What about posts without photos? Wow does fair use work when there’s only 140 characters? What about editorial vs. advertising? Can anything be considered truly editorial in the ad-filled web? How does permission revocation work? Why have Instagram and Twitter made opposite statements on the use of UGC? And so on.) I wrote a few things on the topic:

    https://medium.com/@sthware/user-generated-content-embedding-and-permission-2ae8b2edcf74

    https://news.ycombinator.com/item?id=10367637

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