It's become a very common practice for advertisers to use found social media content in their own advertising, and there are many approaches to getting consent from the various rights owners. Sometimes advertisers obtain consent via DM or through a back and forth with the user via comments on a post. Some advertisers use a link to a form for users to complete to provide permission. Sometimes advertisers use a call-to-action in a campaign inviting users to include a hashtag like "#UseMyPic" to signify consent for re-use of a photo. It's a quick and dirty method of getting consent, but it can be a lot easier – and faster – than, say, emailing a release to the user and having them sign and return it.
However, even when you get consent – or think you have -- things can still go wrong, as the case discussed below illustrates. Using found content has its perils, albeit usually manageable ones, with some planning and judgment.
At issue in the district court case was a hotel's re-use of a photograph of two children wearing the hotel's signature bathrobes by a pool. The photograph was initially posted on one of the children's own Instagram channel. According to the bio in the account, the child – a model – is 7 years old. (RED FLAG #1) The bio does not say that the account is run by the child's parent, as many kid accounts do. (RED FLAG #2.) The hotel, through its own Instagram account, commented on the post "We love this photo! Reply to this comment with #sharemy1pic if you're happy with us sharing your photo on our social channels." And, lo and behold, the account responded, "@1hotels thank you! #sharemy1pic." The hotel proceeded to post the photo on Its own Instagram channel and the child's channel then posted "Thank you for the post! One [o]f [o]ur favorite hotels!" The hotel also posted the photo on its website, alongside an ad – with purchase links–- for the robes. (RED FLAG #3).
Plaintiffs, one of whom obtained the copyright to the photograph two years after it was taken (but whose connection to child in the action is not explained), sued the hotel in the Central District of California, alleging (inter alia) copyright infringement and unauthorized use of the child's likeness. Defendant filed a motion for judgment on the pleadings. On the copyright claim, the court determined that because plaintiffs expressly consented to the hotel's use of the photo on the hotel's own Instagram channel via its response to the hotel, that there was an "implied license" for such use. (It is unclear why the Court characterizes the license as "implied" when it also found express consent.)
However, by posting the photo on its website, the hotel "could have exceeded the scope of consent." Further, although the plaintiffs expressed "enthusiasm" with its "thank you" post when the hotel posted on the photo on its social channel, "Plaintiffs do not express any enthusiasm or excitement after Defendants used the Photograph on its website for the sale of robes." Therefore, because the hotel could have exceeded the scope of its license, the defendants failed to establish on the face of the pleadings that no material issue of fact remained to be resolved or that they were entitled to judgment as a matter of law.
As to the misappropriation of likeness/right of publicity claims, the Court easily found that the children are readily identifiable in the photograph, as required under California Civil Code Section 3344, and that the use was not "incidental": "Minor Plaintiffs are clearly prominent in the Photograph, and directly relate to the Defendants' use: the promotion of robe sales." Further, as noted above, the consent provided for the use of the photographs on the hotel's Instagram did not necessarily extend to its use on the hotel's website accompanied by a sales message for the robes. Thus, the Court denied the defendant's motion for judgment on the pleadings as to these claims.
Does this Decision spell the death knell of use of found content or use of a less formal means of obtaining consent for use of that content? Of course not. But it is a very good reminder that advertisers should use both good permission hygiene and good judgment. Here are some tips:
- Make sure you're getting permission from the right person: remember that photographs of people implicate (at least) two types of rights, the rights of the copyright owner (typically, the person who took the picture) and the publicity rights of the people in the picture if you are making a commercial use of the picture. In all likelihood, they're one and the same only if the picture is a selfie, and a selfie of the person alone. (Take a look at my colleagues' post on this issue.)
- Keep an eye out for other third party rights that could be implicated in the photograph, like copyright in visible tattoos or artwork in the background, or music heard in videos.
- Remember that if the picture is a minor, only the parent/legal guardian can grant permission for its use in advertising. If the handle is a kid name, look for something in the bio that says that the channel is run by the parent.
- If you ask for permission to re-post a photograph on your social channel, that doesn't mean you can use the photograph elsewhere. The more fulsome the rights you want, the more robust your request for permissions should be.
- If you want to use the photograph as part of a sell message, it's prudent to be very clear about that when obtaining permission.
- If you want to use found content showing a consumer interacting with your product (or making claims about it), be sure that what's depicted is a substantiated representation of your product and reflects a typical user experience.
- If the photograph you want to use shows someone who makes a living off their likeness (like an actor or model), don't be surprised if the person expects to be paid for the use. (And, if the content is a video, and the person is a SAG-AFTRA member, you could have to deal with union issues too.)
- And, finally, remember that not only does no mean no but no response also means no. Find a new photograph!
SUNNY KHACHATRYAN et al., Plaintiffs, v. 1 HOTEL WEST HOLLYWOOD L.L.C. et al., Case № 2:23-cv-10829-ODW (Ex)
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