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Brand owners are increasingly employing user-generated content in their advertising campaigns, but they should behave in a legally responsible way when doing so. Adam Rendle of law firm Taylor Wessing reports.
The inclusion of user-generated content (UGC) in advertising campaigns is becoming more common and is set to increase this year. The attraction is obvious. There surely cannot be a more authentic way of advertising your brand, product, event or service than by using material created by your own customers, particularly when they already have a substantial number of followers.
A recent high-profile example of a brand using UGC is Coca-Cola’s ‘Share a Coke’ campaign. Burberry’s ‘Art of the Trench’ is another example. The campaign solicited and used fan-created photographs of people wearing their Burberry trench coats.
The Rugby Football Union in England has also seen a substantial level of engagement with its ‘#carrythemhome’ campaign around international rugby matches. It’s a long-term social media-led campaign aimed at engaging fans, and broadening the focus and reach beyond matches, working with clubs and targeting people who are not traditional social media fans, and based around a central idea with supporting activity involving public relations and social media.
Companies such as Storyful are searching and engaging with the social web to find, aggregate, verify, clear and license content for brands to use in their campaigns.
The types of UGC that may be used fall roughly into two categories: commissioned and native. Commissioned UGC is created on the social web in response to a call to action by a brand (eg, featuring a brand-created hashtag). Native UGC is created without that call to action.
There is a myth in some circles that, just because a piece of content has been uploaded to a site such as Twitter, Facebook, YouTube or Instagram it is free to use without restriction and without reference to or permission from the original uploader. This myth overlooks one core legal concept: copyright. Uploading content to the social web does not strip that content of copyright protection and the need to obtain the consent of the copyright owner to use it. Securing the relevant permission is at the core of ensuring that UGC is used in a legally responsible way.
Although the uploader is likely to have granted a wide and all-encompassing licence for the platform (and other users on the platform) to use his or her content through the platform’s terms of service, the licence is unlikely to cover off-platform uses.
For example, the licence granted by uploaders on YouTube to users of its services is only to “access your content through the service, and to use, reproduce, distribute, prepare derivative works of, display and perform such content to the extent permitted by the functionality of the service and under these terms”.
There is even a restriction on commercial use of the YouTube service: “You agree not to access content for any reason other than your personal, non-commercial use solely as intended through and permitted by the normal functionality of the service.”
The possible reputational/customer relations risks of using customer/fan content without permission are obvious: a customer may not expect or want his or her content to be adopted in an advertising campaign. For example, the uploader of a ‘no make-up selfie’ photograph on Facebook may be shocked to see her face in a magazine advert. Annoying brand ambassadors who are, potentially without encouragement, participating in an online conversation about your brand does not seem to be good public relations.
Savvy UGC creators who have not granted permission may also try to capture some of the value of their content by claiming damages. The more that uploaders are paid for their permission (and there are agencies that monetise this content for uploaders), the greater the risk that a user whose permission was not obtained can successfully sue for substantial damages.
The first stage of using a piece of UGC is to verify the content. There are at least two parts to this.
First, the brand needs to verify that the person it is seeking permission from (typically the uploader) is the owner of the copyright (typically the person who created the content). Although the uploader may be the person whose name or online alias is attached to the content, this is no guarantee that he or she is also the owner of the copyright.
Appropriate enquiries should be made such as, did you take the photograph and, if not, who did? It would be unfortunate to secure a form of permission and then later discover that the actual copyright owner has not been consulted.
The brand also needs to verify that there is no third-party content embedded in the UGC that needs separate licensing. If a user has captured some music in a video, for example, and that video is then used in advertising without a licence then, unless an exception applies, there is a real risk that the brand would receive a claim for at least a synchronisation licensing fee.
"It would be unfortunate to secure a form of permission and then later discover that the actual copyright owner had not been consulted."
Once the UGC has been verified, it may be helpful to remember the four ‘Cs’ of clearing UGC: control, credit, cash and conversations:
Control—copyright gives creators the right to control what happens with their content and who can use it and where. An uploader can therefore legitimately say that he or she has the ability to control where and how the content is used.
Credit—for some uploaders, having their name, or perhaps Twitter handle, credited alongside the use of their content may be all that they want in return for their permission. If permission has not been sought for whatever reason, crediting the creator may reduce the practical risk of a complaint.
Cash—some UGC can be valuable, particularly if it is scarce and/or becomes a viral hit. An uploader might, understandably, ask why a brand should be able to generate value from his or her content without having to pass on some of that value. So it would not be a surprise to see uploaders getting wise to the earning potential of their content, particularly as agencies that create a market for content develop, and demanding some cash in return for their permission.
Conversations with uploaders are what convert the first three ‘Cs’ into usable UGC. The conversations need to happen quickly and in real time, which can only happen if the brand (or its agency) is well prepared and ready to secure appropriate, comprehensive and robust permission with minimum fuss. Getting the conversations right is key to making timely and legally responsible use of UGC.
Brands also have to decide when the conversation should take place. For native UGC, it can only happen after the brand has found and chosen the content; an approach should then be made to the creator. With commissioned UGC, there are more potential contact points, starting with the call to action. How the outreach looks, when it is made and what it intends to achieve will be matters for each brand and campaign.
Once the UGC has been verified and the copyright cleared, the usual advertising copy clearance process will also need to be completed. For example, has rule 6.1 of the Committee of Advertising Practice Code, which “urges” the obtainment of written permission before referring to or portraying a member of the public or his or her identifiable possessions, been complied with?
Does the advert interfere with an individual’s reasonable expectation of privacy, without a public interest in doing so? Is there any suggestion of a false endorsement by a celebrity? Has the content been created in circumstances making it unlawful to do so? These issues can also, at least in part, be dealt with as part of the conversation with the uploader but clearances from a wider range of people may also be required.
Using expert, dedicated teams experienced in handling, verifying and clearing UGC, with ready-made outreach materials and licensing terms to hand, is the best way to operate in this environment to secure the necessary permission. Brands that use the quickest, clearest and most comprehensive clearance strategies are likely to achieve a competitive advantage in being able to make the best use of UGC.
Adam Rendle is a senior associate at Taylor Wessing. He can be contacted at: firstname.lastname@example.org.
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