A social media manager for The Gap also sees the photo and shares in on The Gap’s Instagram feed. That’s advertising.
Or is it? The fast moving pace of social media and online marketing has left us all floundering to figure out the rules. What’s okay for the public, isn’t always okay when you’re a brand. It might be okay to share that photo of a college student, but if she’s under 13 – hands off!
Yeah, it’s complicated and if you make the wrong choice you could end up facing a huge public backlash and maybe even a law suit. Bye-bye, good reputation. All because you shared a photo of a person enjoying what it is you sell. Doesn’t seem fair, does it?
Last month, the NY Times ran a piece on this subject where they highlighted the case of an Instagram photo of a 4-year old wearing Crocs. It was an adorable photo and the brand found it because the mom posted it with a hashtag. Crocs copied the photo and added it to their online gallery without getting permission. Okay or not okay?
We could make a case that sharing is sharing and it’s what we do on social media. Doesn’t matter if it’s a friend, stranger or brand. By putting an image or statement on a public forum, you’re giving the world permission to share.
We could also make a case based on the hashtag. By calling out the brand, one could argue that the customer is giving permission for the brand to share. Why else would you use a hashtag if you didn’t want the brand to notice you?
The fact that Crocs moved the photo to their website gallery muddies the water. If they’d simply shared it on their Instagram feed it would have moved their needle in their favor. If they had used the photo in an actual marketing campaign — like in a Facebook or banner ad — that would have been illegal use, for sure. But posting to their website is literally neither here nor there. It’s not technically an ad campaign but some could say that the website itself is an advertisement for the brand so it is. Very muddy.
The one fact that puts Crocs clearly in the wrong in this case is the fact that they used an image of a child without the parent’s permission. When a child is involved, COPPA kicks in and no image, no matter how cute, is worth the mess you’ll get in if you ignore those rules.
Make the girl in the photo 24 instead of 4 and it’s an entirely different matter. Some social media posters tag brands in hopes of being seen and shared. An up and coming blogger can triple her following overnight if a popular brand features her photo on their network. “Features” – meaning, shares in a way that gives credit to the original poster.
The safest route, unfortunately, is the time consuming route. In order to avoid trouble, you should always ask before repurposing any user-generated content. Some brands ask permission in the comments and use a clearance hashtag to easily find replies. That will do for a simple reshare. If you’re planning to use the image on your website, you should contact the owner personally by email or messaging and consider a gift card reward if a customer posts a lot of useable images of your brand.
If there’s a child anywhere in the photo, you need explicit, written permission. If your brand is child-centric I’m sure you’ve already memorized the COPPA rules. If you only use photos of kids now and then, make sure you read them before you post the next one.
Let’s wrap this up by taking off our brand hats and putting on our everyday consumer hats. If you post a photo on social media and you include a brand in the hashtag, you should expect that brand to repost your pic. Smile and enjoy you 15 seconds of fame. This is the internet and that’s how it works.