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Comment by jrandm | Hacker News Reader

"If you Tweet with a hashtag on a public account, anyone who does a search for that hashtag may find your Tweet" https://support.twitter.com/articles/49309 - and first result searching for anything like 'Twitter hashtag'.

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?

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Just because content is discoverable by anyone, does not give them license to reproduce it. (In this case, it was reproduced on their website.)

I think you are putting too much weight on hashtags' "meaning", too. See: https://news.ycombinator.com/item?id=10367901

What's ambiguous about #crocs (which is a registered trademark) in that context?

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.

>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 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.

You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right?

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.

>You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right?

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.

Roundaboutly everything a business does is advertising, I'd draw a line between commercial advertising (ie: paid ad placements, physical displays) and content only available by someone actively going to a photo gallery on the website.

"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.

> You are explicitly allowing them to reshare your image via the platform

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.)

Instagram's terms of use and privacy policy are less explicit about rights to redistribute your content (than Twitter), but there are several lines like "Once you have shared User Content or made it public, that User Content may be re-shared by others." Most of their policies are about absolving them of any responsibility of what happens with that re-sharing.

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)

If someone posted a photo with an individual with crocodiles, who happened to be wearing Crocs™, and it was hashtagged "#crocs", it's possible they did not intend to consent to be used for Crocs™ advertising material, but your proposal would assume they are. It may be contrived, but I don't think it's so contrived as to be automatically dismissed as a problem with your position. It goes to the general problem of ambiguity in hashtags.[0]

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. :)

I can see potential ambiguity in hashtags and wouldn't apply my argument carte blanche, but this specific instance doesn't have any confusion in usage.

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.

In this instance, they did not get permission first. From the article:

"...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.

It's more like pinning a photo on a pinboard you share with a group of friends. Mailing it would be like sending it to them directly.

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.

But it's nothing like a pinboard with a group of friends. Instagram (I wrongly assumed it was Twitter) allows you to only share with friends; this post would be more like posting on a public bulletin board with a giant flashing sign that says 'CROCS(tm) PLZ LOOK.'

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.

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