Can a photograph be licensed just by using a certain hashtag?

hashtagphotosharingCC0Corporations are eager to include “user-generated content” in advertisements, and they do not always ask for permission. This is a copyright violation, and photographers should be prepared to defend their rights.

Facebook asserts the right to sell your Facebook content and identity to advertisers (such as for brands you like) without compensating you. Other social media services have licenses that are not as broadly written, but still may allow the social media service to sublicense your content to third parties. However, some companies have included user-generated content in advertisements without such a sublicense and without getting permission from the content owner. One excuse that may be used is that the company was tagged in the post.

A New York Times article illustrates a questionable claim of “implied consent” through the use of a hashtag, as well as the use of a hashtag to ask for actual consent. A woman posted a photograph of her daughter wearing Crocs sandals on Instagram and included the #crocs hashtag. Crocs took the photo and began using it in an advertisement on its website without seeking the woman’s permission. When a reporter began asking questions, Crocs posted a comment on the woman’s original Instagram post: “We love your pic! In fact, we love to share photos like yours in our marketing including social media, e-mail, in our stores and in print. Please reply with #CrocsOK to signify your understanding and acceptance to our terms.” (The woman said she did not respond to the request.)

The argument that using a general hashtag is an “implied license” for companies to use photographs in advertisements is a weak one, but that has not stopped companies from engaging in this practice. Photographers should be aware of this practice, use hashtags with care, and be prepared to defend their rights.

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