User-Created Ads Create Rights Conundrum

Toyota Flap Over Flickr Illustrates the Problem; Ad Age Provides Answers

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NEW YORK (AdAge.com) -- Denver-based photographer Michael Calanan saw a comment in his recent Flickr activity that caught his eye: "Oh goody. Time to get out that wish list Mike! Maybe they'll trade for a new Prius."

CAN'T BEAR IT: The photographer was surprised to see his shot on Toyota's site.
CAN'T BEAR IT: The photographer was surprised to see his shot on Toyota's site.
Confused, he investigated and figured out why the commenter suggested he should be the recipient of a new auto: Toyota had used one of Mr. Calanan's photos -- a shot of a pair of bears lumbering down a hiking trail -- on its website for the 4Runner SUV.

The trouble was, Toyota never asked Mr. Calanan if his photo could be used, and the shot was all rights reserved, which meant permission for use was required.

Mr. Calanan wasn't the only photographer who was surprised to see his work on the website. While all the images linked through to the original postings on Flickr, Toyota had never asked to use them -- an important distinction, both in social-media etiquette and intellectual-property law.

The site is a content aggregator, like many of the newer brand and agency websites. In addition to Flickr photos, it also pulled in Twitter streams. But the issues some of the Flickr users had with it are indicative of the kinds of considerations marketers will increasingly face in an era of crowdsourced and user-created marketing.

"Fortunately or unfortunately the internet isn't a magic box of free content," said Mike Linksvayer, VP at Creative Commons.

It didn't take long for Toyota to notice the dust-up, and it responded to several of the photographers via Twitter: "@calanan @Photo_John @stuartzero, We're currently pulling the photos and will be in contact with each photographer who was represented." The photos have since been taken down, and a spokeswoman for Saatchi, which created the site, said the agency and client would "do the right thing" and compensate the photographers.

But the incident begs the question: What do brands need to think about when aggregating content for their websites and campaigns? And as more and more brands use the crowd to conceive and create content, how do they ensure those volunteer creatives follow the rules? We put the questions to legal and social-media minds.

When do I need permission to use content?
"For commercial use of photos, videos or text, you should cover yourself legally by asking. Not to mention it's polite," said Josh Peters, a social-media consultant who has written about the Toyota misstep. "It's an ethics and courtesy issue. In 30 seconds they could have saved face by asking him ... but they didn't bother."

Permission can come via looking for photos that have been specifically pre-cleared for commercial use with a Creative Commons license. Or an agency or marketer can work through the traditional route of contacting creators or using an intermediary like a stock-photo company.

You might also need to get the permission of the subjects in the photo or video -- remember the flare-up around the Virgin Mobile ads? They used Flickr photos, licensed under Creative Commons as OK for commercial use, on billboards and in print. While the photos themselves were licensed for use, the people in the photos hadn't consented to being used in a commercial context.

Does linking back to the original source keep me in the clear?
It's a nice gesture to link back to where the content originally appeared, but it doesn't preclude you from needing permission to repost it.

If a piece of content is covered by a Creative Commons license, I'm safe, right?
Not necessarily. In fact, there are six Creative Commons licenses, said Mr. Linksvayer, each covering various permissions like whether a piece of work is licensed for commercial use, if it can be remixed and what kind of license must be put on the finished product.

Do I need to worry about adding a Twitter feed or Twitter search results to a site?
It's legally still a bit of a gray area, but generally when a person puts content out there using the social-media tools where content can be syndicated, they grant the world an implied license, said Evan D. Brown, attorney at Hinshaw & Culbertson, and author of internetcases.com.

"I tweet on Twitter with the full knowledge and understanding and hope that someone else will see what it is I've put up there and retweet it," he said. "You've got to look at the situation, evaluate whether there's some kind of express license -- for example, with YouTube, you're free to embed video in your own site, and you grant the world at large that right." Some social-media sites such as Flickr may have various licenses and restrictions for commercial use, so it's worth reading the fine print.

If I'm running a contest, I can't possibly screen everything that's uploaded. Am I in trouble?
That's where the Digital Millennium Copyright Act comes into play. In some cases, a site can't possibly know whether everything uploaded to it passes copyright muster. But if something doesn't and the site is notified, it has to have a process to take it down, said Joe Rosenbaum, partner and global co-chair of the advertising, technology and media law practice at Reed Smith. "And if they don't, they now have a liability."

How should I license my own content?
If you're using crowdsourced or user-generated creative, don't forget to include terms that make it clear you own the content. "In the absence of a written agreement that assigns [the brand] the rights, that individual will own that content," Mr. Brown said. "Brands want to make sure they have the appropriate terms of use governing the contest, so it's clear they own the content and can freely use it if it's selected -- and not end up paying big royalties or licensing fees."

And using a Creative Commons license or offering some component of the campaign or the whole campaign is a way to treat your fans fairly if you're crowdsourcing and asking them to create content for you. Coke, for example, is doing that on its MySpace page. "It makes fans partners," said Mr. Linksvayer. With a Creative Commons license, you can allow others to use the content, but still own it yourself as well.

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