We use cookies to make your experience of our website better. Some of these are set by third party Google Analytics to help us analyse website traffic. To comply with privacy regulations, we require your consent to set these cookies. If you continue to use the site without selecting an option we will assume you are happy for us to use cookies.

Me, My Selfie and IP

Me, My Selfie and IP

Social media has transformed the marketing landscape – providing the opportunity for brands to reach and interact with millions of potential customers with a single post. Even more transformative is that each and every individual customer with a social media presence is now a potential source of authentic and relatable advertising content. But, where a brand relies on user content for advertising, who owns the content?

Many ‘influencers’ have made lucrative careers out of building a large social media following, and in return for positive messaging about brands they are handsomely rewarded. This form of advertising is regulated and the Advertising Standards Authority’s “Influencer’s Guide” explains that for content to qualify as an advert the brand must have an element of editorial ‘control’ over the content and have made some sort of payment to the influencer in exchange for the post. This doesn’t have to be monetary payment and many brands will provide influencers with free products in exchange for their promotion of the product in use.

Despite a sometimes hefty price tag, when a brand pays to commission influencer ads, they are not paying for the IP rights in the content. The default rule is that the photographer (or their employer) owns any photograph taken as part of the content. Some influencers may have an agreement with the photographer transferring ownership or rights to use the photo to the influencer, however this may not always be the case. Brands therefore must be aware that when they are re-posting content from an influencer, they need to ensure the photographer has consented to their re-post of the image. If a brand wants to own the photo (and not merely obtain a right to re-post it) they will need to enter into an agreement with the owner of it, be that the influencer or the photographer. Depending on the brand’s advertising strategy, this may be desirable. In particular, if the influencer is a particularly high profile celebrity and the brand has spent a lot of money to secure a deal with them, an agreement like this could allow the brand to re-use the photos in wider advertising campaigns.

But it’s not just influencers. Content shared by any of us in a selfie can be a valuable source of advertising for brands. Just look at the media storm stirred up a few weeks ago when Thea Lauryn Chippendale, a 20 year old student from Lincoln, tweeted a picture of herself in a dress from ASOS alongside a screenshot of unpleasant messages she received about her appearance in the photo on dating app Tinder. The tweet went viral and many users commented that Thea looked great in the dress and should be an official ASOS model. It wasn’t long before ASOS spotted the opportunity - sharing their support for Thea on social media and uploading Thea’s photograph to their website to advertise the dress.

This is just one example of how user generated content can be used by brands to engage with consumers. Lots of brands – from Scottish eye wear boutique Iolla to furniture giant IKEA – link end user social media content to their own social media accounts and websites as a source of consumer inspiration and, ultimately, free advertising. But the same rules apply to dictate that the copyright in the photo belongs to the photographer. The terms of use for Instagram, Facebook and Snapchat grant the platform a licence to use the photographs posted but ownership is not transferred to the platform, nor are licences granted to any third parties. So, before re-posting user generated content, it is important to get the user’s permission to use the photo. This can be done through direct messaging on the social media platform, or by commenting on the original post.

If the brand is running a promotion with a sponsored hashtag, there could be an argument that posting a photo with the hashtag amounts to implied permission for the brand to use that image. However, it would be prudent to seek permission. And in any event, being seen to engage with users by commenting on posts and asking to re-share their content can be good PR in itself!

User generated and influencer social media content are great promotional tools for brands - providing accessible, relatable, often high profile (and, in the case of user generated content, free!) advertising, accessible to millions of daily users. Brands should be aware of the copyright risks involved, but can rest assured that it is fairly easy to stay on the right side of the law. To find out more about the regulations around social media advertising, click here to read Lynne Moss's blog.

By being savvy with content-ownership, brands can look to their customers to produce a wealth of valuable content to keep their page looking fresh and provide followers and potential new customers with exciting and relatable content. But first, let me take a selfie...

By Hannah Jenkins
Solicitor

Burness admin