Do not submit user generated content to brands or marketers – know your rights

Jun 2, 2018

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand.

Do not submit user generated content to brands or marketers – know your rights

Jun 2, 2018

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand.

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Underwater view of girl on holiday swimming in pool with colorful mermaid tailBrands and marketers are increasingly reaching out to social media users for “user generated content” (UGC).

Usually, you will receive a friendly request from the social media account of a brand or a marketer that would like to re-publish or use an image or video that you have previously shared to social media.

Effective marketers will find a way to stoke your ego a little, it’s a pitch that most social media users (myself included) are inclined to accept without a second thought.

If you’re on Instagram, they will usually ask you to simply reply with a specific hashtag.

But before you submit your user generated content (UGC) to a brand or marketer you need to know your rights – you are being ripped off.

Why Brands Want Your User Generated Content

For a brand or a marketer, user generated content is a win, win, win.

First, they see user generated content as a free resource. Why pay for photography or video if you can convince people to give it away for nothing in return. All it takes is a few compliments about how amazing the photo or video is – and the fact that most people have no idea that a snapshot of their kids on holiday could possibly have any monetary value – and it’s easy for brands and marketers to harvest as much free UGC as they need.

Second, user generated content usually reflects very well on the brand. People are sharing content that they like, so they obviously like the brand too. This generates very successful peer to peer marketing campaigns.

Finally, user generated content leverages the user’s own networks to promote the brand – again with nothing in return for the user besides a few likes.

Essentially, brands and marketers see user generated content as a massive resource of highly effective, free marketing material with a built in free distribution network.

Underwater view of woman on holiday swimming in pool with colorful mermaid tail

You are being ripped off if you share user generated content

A brand or marketer sharing a link to your UGC on Facebook or Twitter, or even a brand or marketer republishing one of your photos or videos on Instagram or any other social media platform is one thing.

I don’t think most people would have a problem with an innocent request like that – which is why almost all users agree to let brands use their user generated content.

Most brand requests for user generated content will make it sound like an innocent social media re-publish is all they want to do – and it might be – but if you agree, there is a very strong chance that you are agreeing to much much more than you thought.

For example, here is a request that I recently received from Holiday Inn Club Vacations on Instagram:

This photo is so great, @jpdanko! Can we repost on our social media pages? Please reply with #YesHCV if you agree to our terms and conditions: hcv.vacations/ugc

User generated content rights for brands and marketers

Nice enough right? Somebody likes my photo – cool – that makes me feel good! People repost things to social media all the time – it’s not a big deal. Why not?

Now, lets see what I would have actually agreed to if I would have replied with #YesHCV as requested.

You grant us a non-exclusive, global, unlimited, and royalty-free perpetual right and license to use your User Generated Content in connection with our advertising, publicity, promotional and marketing activities, including, those directed to the public and existing and prospective customers on this and other social media channels, websites, newsletters, and emails or other media formats and channels now known or hereafter created and without the requirement of permission from or payment to you or any other person or entity. You agree that we may use, copy, modify, alter, edit, publish, create new derivative works from, make available and display the User Generated Content and include it into other works, for any business related purposes, including, promotional and marketing purposes.

That’s a pretty terrible agreement for content creators. But it gets worse:

You agree that we have no obligation to use your User Generated Content or your name or other identifying information.

So not only would I be giving my photo away for free to be used for whatever they want, they don’t even have to give me credit for it!

I should note that although I am using Holiday Inn Club Vacations as an example – these terms are pretty typical for any user generated content agreement I’ve seen.

Underwater view of redhaired boy diving in cool blue holiday swimming pool

Is this ugc rights grab even legal?

I am not aware of a case where the concept of a user generated content rights grab has been challenged in court – but I am sure it’s happened (leave a comment below if you know of one).

It seems dubious that a corporation could pitch one use while users are actually agreeing to an entirely different use – while knowing that most people are not going to actually read the legal terms and conditions at the provided link (despite the fact that this is exactly how every single social media platform and mobile phone app words their terms of service).

And a hashtag is not a signature – I strongly doubt that #YesHCV can substitute my actual signature on a legal document, along with the fact that there is no witness and no consideration either.

Further, if I would have agreed to this request from Holiday Inn, I would have violated a legal agreement that I already have with my stock agency where I agreed that they (my agency) are the exclusive distributor of my work.

So there is the potential of at least three legal claims here!

Me versus the brand (for using my image in a way I did not intend), my agency versus the brand (for using an image that they previously had exclusive control over) and my agency versus me (for agreeing to let a third party use an image they represent).

In such scenarios the party with the deepest pockets usually wins – it’s not going to be the content creator.

Compounding the dubious legality of this agreement – by agreeing to share your user generated content and agreeing to the brand’s legal terms and conditions you’re usually also agreeing to the brand’s privacy policy (another link away).

As the content creator – here are a few other things that you are agreeing to:

You represent to Holiday Inn Club Vacations that:

  • You are at least eighteen (18) years old and a U.S. citizen;

  • You own all rights to your User Generated Content or, alternatively, you have the right to grant Holiday Inn Club Vacations the rights and license described above;

  • You have paid and will pay in full any fees or other payments that may be related to the production or use of your User Generated Content;

  • You have permission from any person(s) appearing in the User Generated Content to provide us with the rights to use the photo, video or other form of User Generated Content as described in these User Generated Content Terms of Use;

  • Your User Generated Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party;

  • Your User Generated Content does not facilitate, reference, or use material that is unlawful, fraudulent, inappropriate, indecent, tortious, or defamatory;

  • Your User Generated Content does not include any personally identifiable information of any person, such as full name, address, or telephone number; and

  • Your User Generated Content does not in any way contain any logos, brand names or trademarks other than Holiday Inn Club Vacations which Holiday Inn Club Vacations has granted you a limited license to use for purposes of User Generated Content.

Re-read the bolded bullet points above carefully.

How many user generated content providers realize that they have agreed that they have the permission of every single identifiable person (if they know them or not), they are not infringing on anyone else’s property, privacy, publicity rights and that there is no personally identifiable information and no logos, brand names or trademarks.

So who do you think is going to be held legally liable if you allow a brand to use a photo that features the likeness of someone who doesn’t want to have their photo shared?

Who do you think gets sued if a brand publishes photos containing the logos of a competitor in a way the competitor doesn’t like?

If you don’t have model releases, property releases and trademark releases – as all stock photographers do, but almost nobody agreeing to provide UGC would – the supplier of the image would be legally liable – along with the brand or marketer for distributing this content without verifying that it was released.

Underwater view of redhaired boy diving cannonball in cool blue holiday swimming pool

How Much Is User Generated Content Really Worth

The next obvious question is how much is user generated content actually worth to the social media user who originally created it?

What is the monetary value of UGC?

First, social media users need to understand that they own their copyright from the moment they push button.

Second, the quality or subject of an image or video has nothing to do with it’s value.

(We often see the argument that a snapshot or family photo is a throwaway and therefore doesn’t have real value. That is not true – a photo of a polar bear in a snowstorm has just as much potential value as any other image.)

Underwater view of mom son and daughter on holiday swimming in pool with colorful mermaid tails

My work is available as royalty-free stock – so using this photo of my wife and kids swimming with mermaid tails in a resort pool as an example – assigning value to this image is as simple as choosing the applicable royalty free license.

So how much do you think this photo should be worth to a brand or marketer who wanted to use it?

Well, if the intention is really just to re-publish an image like this to social media – a medium size license sells for $30.

That is a pretty reasonable price for a large corporation to pay for the commercial use of a model released, royalty free image.

However, most user generated content licensing terms are not just for a simple social media post – they are grabbing the rights to use your image for whatever they want for as long as they want.

If we use Holiday Inn Club Vacations licensing terms as a guide – there are a few key terms that determine the value of the images they are asking users to donate for free.

First, they are asking for non-exclusive use. This is important, because if the terms were for exclusive use, the value would be significantly higher (add an extra zero or two).

They also state that the creator retains their copyright – again this is very important because if the terms transferred the creator’s copyright, the value would be much much much higher (add a couple more zeros).

If the image would be available to all Holiday Inn divisions (beyond just Holiday Inn Club Vacations), a multi-seat license would be required ($100). This does not appear to be the case here – but it is not really defined in the terms either way.

The licensing terms do allow for unlimited use “for any business related purposes”. This means that this image could be used in excess of the standard royalty free license limit of 250,000 print copies and possibly on products for resale.

This adds $300 for an unlimited print license and another $500 for a products for resale license.

So according to the set pricing structure for this user generated content, Holiday Inn Club Vacations should be prepared to pay $830 USD for this image based on the licensing terms they have specified (I have attached a screen capture of the shopping cart below – total price bottom right).

User generated content for brands and marketers value of photography

Of course, if they don’t actually need this image for a print campaign over 250000 copies or for products for resale, a standard $30 medium royalty free license would be fine – but then they shouldn’t grab the rights to those possibilities in their own terms and conditions.

Is user generated content a scam?

Yes.

Visual content is inherently valuable – which is why brands and marketers are asking you for it in the first place.

If an image or video has enough value to a brand that they want to use it as part of promoting their business – they should be willing to pay for it. A few free nights, a complimentary upgrade, a free dinner – whatever – content creators deserve to get something in return.

And it’s not like stock photography is exactly expensive either.

User generated content exposes both brands and marketers, and those providing the content to significant legal risks.

If you provide UGC to a brand, you are also agreeing to many onerous legal requirements that could have very serious consequences for you in the event of a dispute.

If you are a brand or marketer and you publish content provided by users, you are responsible to reasonably verify that the user has actually fulfilled the terms and conditions stipulated in the UGC agreement (which we all know next to none have).

Publishing content from an unverified origin, without model releases, property releases and trademark releases on file is just asking for a lawsuit.

Underwater view of woman on holiday swimming in pool with colorful mermaid tail

Do You Share User Generated Content?

Have you been asked to share your UGC with a brand or marketer on social media?

Did you agree? Were you aware of the actual terms and conditions you were agreeing to?

After reading this would you share user generated content now?

How much do you think UGC is worth? $1, $30, $1000?

Are you a brand or marketer that publishes UGC?

Is publishing unverified, unreleased content to your platform a legal liability – or are you adequately protected by the terms and conditions?

Leave a comment below and share your opinion with us!

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JP Danko

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand.

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3 responses to “Do not submit user generated content to brands or marketers – know your rights”

  1. Jake Traynor Avatar
    Jake Traynor

    Amazing read!

  2. Priska Wettstein Avatar
    Priska Wettstein

    You make it sound as if they try to steal. Terms and conditions explain everything well enough, no hidden traps or something. Simply say no or don’t use the hashtag. No big deal.

  3. ShishkaBerry Avatar
    ShishkaBerry

    Some US copyright lawyer is reading this right now and drooling.