Did I Just Give My Permission? The Hashtag as Consent
blog.photoshelter.com
blog.photoshelter.com
Unacceptable. I don't see how this should work out any way except in the favor of the copyright holders.
"You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same."
Without this, all those embedded Tweets you see everywhere (like in news stories) wouldn't be available (this is why I think these services should all give you the ability to disable embedding your post(s) like Flickr/YouTube do. It would make everything much clearer and more straightforward.)
I think that's pretty clearly publishing and explicitly choosing to make your image/thought/whatever available to whatever you #mention. That does seem like granting permission for the #brand to share the content through social spaces. I'd expect them to ask permission before using it in "actual" advertisements (billboards, signs, commercials, etc), but anything shy of that seems like fair game.
The nearest thing I can think to compare it to (pre-Internet) would be mailing a photo to the company; what would you expect them to do with it?
I think hashtags are more of a way to share to a group, where as mentioning with @ is a driect way of communicating that you want to give them the picture.
This is because hashtags aren't owned by anyone, but usernames are.
Hashtags are generic, certainly, but this usage was contextually relevant (with photographic proof) and clearly meant to represent that entity. Additionally, crocs is their registered trademark -- it's not unreasonable for them to search a massively popular image publishing platform for images their customers choose to share attached to their brand, nor for them to take those images and say 'Look at these happy customers!' in a non-commercial context (ie: on their website, in a photo gallery of customer photos).
I believe it's straightforwardly analogous to mailing the photo directly, though perhaps posting to every bulletin board in the country with a giant label might be a more exact match.
If anything a (public) hashtag implies you want it to be easily seen by the entity tagged -- or anyone interested in it -- as a tag doesn't specify an individual.
I think you are putting too much weight on hashtags' "meaning", too. See: https://news.ycombinator.com/item?id=10367901
I don't believe they should directly use other's content for material gain (in advertisements, essentially), but a photo/comment the creator willingly released to the public and attached to the brand logically allows for re-sharing that content to me, especially by the entity explicitly mentioned.
I wouldn't be on the business's side had this been a private account or even a blog somewhere, but she published an image to the public on a hugely popular platform and tagged it with the company's name. How is that different than sending the image to the company saying "Look at how cute my daughter is in these crocs?" Other than that millions of people could see the image prior to the company reproducing it.
I don't see why you think that at all. Re-tweeting, sure, but that's because it's an expected result of putting something on twitter, with or without tags or even text.
Sending someone a picture on twitter in no way implies I am giving it to them to do whatever they want, in the absence of external context.
Or in other words: The tweet as a whole is released to the public of twitter. There's no license to derive or take elsewhere.
Sending it directly in the mail doesn't let them use it to advertise either.
They weren't advertising with it, the article mentions they did ask for permission before doing that. As-is all I'm aware of Crocs doing is taking an image that was published and willingly tagged to their brand and putting it in a public collection of similar photos. If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website? I don't think so.
Via the platform means it's still my tweet, and I have total control over it, and they can't do anything else with it.
Doing other things is not academic in that case.
>They weren't advertising with it[...]putting it in a public collection
Putting it in a public collection for the purpose of..... advertising.
>If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website?
Definitely unreasonable. "Look" and "put on your website" are different things.
"You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same."
That's pretty explicit, you don't have total control over it once you publish that photo, neither according to the policy nor in a practical sense.
I don't know if I fully concede that, but it's almost immaterial, because the company ripped it off the platform and rehosted it on their own site.
> the article mentions they did ask for permission before doing that
No. "Crocs pulled the photo and posted it to their website [...] It was only much later that Crocs sought explicit permission from Ms. Way, which she declined." From the NYT source article: "The company had not asked Ms. Way for permission, and she was not aware that Crocs had used the photo until a reporter contacted her on Instagram."
You're appealing to what is "reasonable" to expect or not expect someone to do with your content, but it doesn't really matter -- reproducing someone else's copyrightable work without their express permission is illegal, and hashtags aren't express enough. (In the US at least, and again I'm not a lawyer.)
They initially used her (public, tagged) photo in a photo gallery on the site, and requested permission for standard commercial use (print ads, signage, paid placements, etc). Possibly the reporter's questioning led them to begin to comment-request permission for any photo they pull, but I can appreciate a media team drawing a distinction between the types of usage.
The hashtag is only relevant in that it's reasonable you are drawing interested parties to see your photo, and the nature of a publishing platform means it's practical to expect that photo to be reused. I don't believe anyone could successfully argue a hashtag by itself is explicit permission, but the combination of publication, tagging, and no effort to control usage would seem to be some kind of implicit permission. Practically, as the site policy stresses, once the image is public it's outside of your control. (and without explicit denial, this incident's usage seems implicitly allowed)
IANAL, but AFAIK having a trademark (in what jurisdiction?) does not confer the ability to appropriate others' IP even if they used your trademark. At best Crocs, Inc. can probably censor uses of the #crocs hashtag.
If she had snail-mailed Crocs, Inc. her photo with nothing else but the caption she wrote on Instagram, it would not give them a license to copy it! I feel like a broken record at this point... I agree it would be bizarre, and some people's social media behavior like this case is bizarre, but it would not justify them reproducing it without her permission.
They reproduced it on their own website, which is different than retweeting or whatever analog Instagram might have. Honestly I'm not sure exactly where I draw the line, especially given I don't know all the nuances of social media's features and etiquette, but rehosting crosses the line.
(I don't typically defend IP law as it exists today, but as long as it remains the law, I will when rich corporations try to trample lowly individuals' IP rights.)
[0] Edit: In the spirit of IP attribution, I will note I did read another commenter's post here about crocodiles and have probably derived this scenario from it. :)
My main concern here is that the positions are often reversed -- in this instance a company used an individual's content in a friendly, appropriate way, and did ask permission before any standard commercial use. Usually an individual is using a corporation's content in a friendly, appropriate way and is forced to desist.
I'd rather see more sanity in IP rights and look at specific instances than broadly apply some one-size-fits-none legal interpretation. I'd also rather the discussion be about practical concerns in (public) sharing on social media; any image tagged with popular terms and public is out of your control regardless of IP enforcement. My point is more that the chain of events is predictable and will continue to happen, so rather than attempt to enforce a virtually-meaningless copyright on a photo tell people this is normal and be mindful of what and how you share your content.
"...posted it to their website with other UGC content. It was only much later that Crocs sought explicit permission..."
And that's unacceptable. The TOS of these sites with embeddable content have content creators licensing their creations for embedding, provide attribution when embedded correctly, and generally attempt to be fair in the arrangement. Explicitly taking content from any place online simply because it was publicly accessible and dropping it into your site without the proper embedding code is not acceptable. It doesn't matter that there's a mention of a hashtag that the company's marketing department encouraged the creator to use.
Specific tags only solve half the problem. Someone could copy the tag from someone else without being aware of the campaign going on.
However, I think parents especially overshare things about their children. Once you let something out of the bag, it's going to be hard to put it back.
And, of course, if you're using something for commercial purpose, you need to seek permission, if you're unsure about the license. However, much of the public's loosey goosey attitude toward copyright can filter into the attitudes of unsophisticated marketing organizations (an intern etc. not familiar with IP thinks they are doing "guerilla" mkting, for example).
Try: senior marketer perfectly familiar with IP decides to ignore it thinking they're doing "guerilla" marketing, and then blaming it on an intern if caught. Sleazy industry, sleazy standard practices.
Three things that would be incredibly helpful in this area:
1) All these services should give users the ability to prevent embedding of their posts either globally or on a post by post basis. Drawing a very bright line like this makes what is and is not OK very clear. Off or on by default would be debatable.
2) Supply a UI or API for automatically obtaining licensing permission (requester goes to an Instagram post, clicks/taps "request license to use in/on {web, billboard, TV commercial, etc.}" which sends a message to the original poster, poster can than choose to consent/refuse, response is sent to the requester.
3) Make some public statements / legal guarantees (i.e., a promise to stand behind people who get sued even when using service-provided embedding tools) about what they consider acceptable usage.
Right now it's just very gray, and the safe route is to obtain advanced permission for anything with a photo, which I think goes against the frictionless spirit of the old web (i.e., just put up a link or excerpt a post and be done with it.) The service-provided embedding tools try to maintain that spirit in the more walled-gardeny world, but legal uncertainties still make that iffy. I wrote a bit more on this previously: https://medium.com/@sthware/user-generated-content-embedding...
I'm not sure what the legal reasoning would be for "hashtags as consent for photo usage", but something tells me that it probably wouldn't hold up in court if it came down to it.
Edit: another thing that needs discussion is things that seem innocent to many, but could be legally questionable. Prominent example: retweets. Let's say you embed a Twitter widget of your company's feed on your web site's product page. You retweet something someone has posted about your product. It then appears in the feed, on the web site, next to your products. Protected or not? Using some of the logic from Heigl vs Duane Reade, it might not be: https://social.ogilvy.com/celebrities-suing-brands-for-a-twe...
If the network has an embedding feature, then we must assume that the network allows embedding of content that the network has the right to distribute. I'm quite surprised if Instagram has an embed feature, but says you need to ask permission to use it.
If you download the content and host it yourself, that is of course different and you need permission from either the user or the network.
"You provide us a perpetual license to all of your works, as well as anyone else using your tweets, pokes, stories, etc."
With the current state of copyright law in the US, let me tell you how far that's going to fly in court.
Content is clearly owned by the user; why would someone get to use it anywhere off-platform without their permission?
http://www.jdsupra.com/legalnews/an-update-on-the-legal-impl...
http://www.buzzfeed.com/jwherrman/want-to-publish-a-twitter-... -
https://pando.com/2013/01/22/how-twitters-new-embeds-will-ma...
Clear as mud.
http://www.guidethroughthelegaljungleblog.com/2014/07/copyri...
Hasn't been tested in court, though.
As a user I want the right to embed any publicly available work for purpose of commentary, as long as I'm doing it non-profit. Yes, if someone posts a public photo of their kid, I want to be able to embed it on my non-profit website (if I run ads, go ahead and sue me) to comment about that absolutely awesome/awful photo I've just found. Disabling embedding wholesale is throwing baby out with bathwater - it's hurting cultural development.
If you're not doing a fair use, then maybe you shouldn't have the right to embed so freely.
I don't see how a no-embed policy hurts anything.
Also, there are many different kinds of uses, some commercial-y. Here are a few:
- Display on Twitter itself (retweet)
- Use in a news story, near an ad
- Display in a Twitter widget on a web site
- Embedded Instagram photos on a company gallery page
- Use in an email ad campaign
- Use on a billboard
The list of things above exist on spectrum of "commercial-ness", and reasonable people can disagree on which they think are OK and which aren't as far as obtaining advanced permission. What many would like to see are much more explicit rules or technical controls so that the ambiguities are removed.
Embed controls might not be ideal from a fair use perspective, but it's a lot better than the "let the courts figure out" situation we have now.
I'm more in the camp of: don't put things you don't want other to share / look at online (yes, pictures of your kids especially)
If the door was allowed to swing both ways, and users could assume that anything that businesses upload is fair game to copy and use for their personal sites, it wouldn't be as egregious. But in many cases, corporations hold far more power when it comes to takedowns for copyrighted material.
What is being argued here is that the hashtags should count as consent, but I think that's really bad because there isn't really any way to give informed consent in the form of a hashtag. Each corporation is going to have different media replication terms and conditions that they offer, and I don't think that you should be able to give away rights to a work without actually knowing what you're agreeing to.
As an aside, I'm aware that often people sign agreements without reading the entirety of the agreement and have no idea what they're agreeing to. In that instance, they at least have the chance to know what it is they're agreeing to and they choose to ignore it. If hashtags become consent, the users wouldn't even have a chance to read the agreement before they agree to it. That just seems like horrible precedent to set.
Maybe it's time to think about how unnatural it is for us to be sharing this much of our lives online, instead of complaining about corporations doing what corporations do, which is overstep the bounds of good taste and sanity in the name of making another buck.
Honestly though, I don't really advocate the way corporations do these things but I'm also in support of using my brain before posting content given the current circumstances.