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Obtaining consent for user-generated content

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You may, either by happenstance or through concerted searching, find an Instagram post that includes a product that your company or business sells. You may like the post so much that you would like to repurpose it in your own marketing materials or repost it on your company’s official Instagram account. There are some points to consider before doing so.

This type of content is often referred to as User-Generated Content (“UGC”), as the creators of the content are the users of social media. A fun real-world example of UGC occurred in 2015, when Starbucks held a “white cup contest”, encouraging customers to draw designs on their Starbucks cup and post of a picture of the design on Instagram. UGC allows companies to draw on their customer base for innovative marketing ideas and provides novel methods of facilitating customer engagement.

UGC almost always takes the form of photographs. Photographs are included in the definition of “artistic work” under the Copyright Act, making the photographer who posts his or her photo on social media the copyright holder. Although the photographer is usually the person who posts the photo, that is not always the case.

As such, a business cannot repurpose another individual’s copyrighted photograph without the consent of the copyright holder. Unfortunately, the law is not well-developed when it comes to obtaining consent through social media. In analogous scenarios, courts have stated that there must be some sort of action that communicates consent and signals agreement.

UGC is rarely sent directly in a manner (say, uploaded to company’s website) whereby users agree to a set of terms before uploading content. Users are typically approached directly on the specific social media platform. Asking a user to use their content via direct message means that there are no terms or agreement in place that govern the use of the content.

If you send a direct message to a user on Twitter asking to use his or her photograph and the user responds “yes” to signal consent, you are left unaware as to the extent to which the UGC can be used. As an example, if you obtained consent on Instagram, can you post the UGC to Twitter? Can you use the UGC in your general marketing materials? Can you share it with any affiliates or licensees?  

Companies often attempt to overcome this issue by sending a reply or direct message requesting permission to use the user’s content within the app itself, while including a link to a document or online text that outlines the terms of use and asks the user to consent and agree to the linked terms via a specific hashtag. Unfortunately, when taking this approach you can never be certain that the user actually read and agreed to the terms. There do not appear to be any practical methods of overcoming this issue. Further, you may not even know with whom you are contracting, since social media users often do not use their real names.

There will inevitably be scenarios in which the user is not the actual owner of the UGC. For example, re-uploads (or re-posts) are pervasive on Instagram. As stated, it may be difficult to know whether the individual is the owner of the photograph in question.

Granted, a business can ensure that the terms include language that requires that the user acknowledge the content is the user’s original work, but it is always best to be cautious. Once again, there is no real and practicable method of fully alleviating this risk since you can never be totally certain about the true owner of the content.

The reality is that this area of the law is still in flux and has been subject to minimal consideration by Canadian courts. The most prudent and legally sound way of obtaining and using UGC is to enter into a formal agreement with the user, signed by both parties. That said, we understand that this is burdensome and often impractical when a business is merely looking to use UGC for a narrow purpose. You will have to decide, together with your legal counsel, whether the expediency of obtaining consent to use UGC through a direct message with linked terms is worth the risk of a potential allegation of copyright infringement, or if a more substantial agreement with the user is appropriate. 

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