Wednesday, July 9th, 2014 | 7 min read
Ask any marketer how important user-generated content (UGC) has become to his or her marketing strategy and they will answer with a varying degree of conviction about the importance. What every marketer can’t say as confidently, is whether he or she knows the laws and regulations that govern content usage in the social media echo chamber.
This knowledge gap is a new problem facing marketers and brand managers due to the rise in UGC for events and brand campaigns. For instance, the usage of hashtags during Super Bowl commercials continues to grow — up to 38 percent in 2013 from just 7 percent in 2012. Depending on whom you ask, some will say that repurposing another user’s photo or tweet from certain social media platforms is permissible depending on how it is used. However, many consumers — and even some celebrities — balk at the idea of having their personal social content used to promote a brand without their permission. In fact, the leading case to go to trial on this particular issue here in the United States — Morel vs. AFP — drew a line in the sand when it comes to using content posted to a social media network for commercial purposes.
Due to the uncertainty, it’s no wonder marketers are confused by the mixed messages and worried about finding themselves in hot water with both the law and public opinion.
Mastering UGC usage in brand campaigns is a nuanced undertaking at its core. Securing rights to UGC falls into one of two categories: “explicit” or “implicit” permission. Rights management is not black and white. Like all things legal, there is quite a bit of grey area, especially since clear legal precedent is yet to be established on this issue from a ruling body. Understanding the differences and how to get a legal team on board will help marketers make their UGC marketing vision become a reality.
In the case of implicit consent, a piece of content is so clearly identified by the end user, or tagged so specifically, that the content poster could not have meant for anything else but to have engaged with the brand. For example, if a user posts a picture with a hashtag #EnterTheBrandCampaign in response to a brand’s media buy encouraging users to post content with that specific hashtag, a brand could reasonably take the position that the user is proactively reaching out to the brand and implicitly granting the brand consent to use their image in the brand’s marketing activities.
Implicit consent is one way marketers act to secure rights on social platforms. And it’s a particular favorite for many brands because it’s the easiest and fastest way to do so. It’s a simple call and response. Additionally, no delay in posting content means marketers can quickly find and secure rights, which can be critically important for cutting edge marketing campaigns — especially when time is of the essence.
Unfortunately, in order for legal teams to get comfortable with the idea that users are communicating with them, and not incidentally hashtagging their content, the hashtags must be so specific that they sometimes appear long or unwieldy. For this reason they are not always the best choice for marketers.
The conventional wisdom in the social sphere with pulling UGC from Twitter is that if the user is employing a distinct hashtag that is unmistakably related to a brand, the brand can feel good about using that content in a media wall or website. Most brands agree, however, that if a piece of UGC is going to be repurposed for a high-profile commercial use, implicit consent doesn’t quite match up with the user expectations of how their content could be used.
Explicit consent indicates that a brand directly requested and acquired permission from the user before using a piece of content in its marketing. This method is typically favored by major brands that tend to attract lawsuits or negative publicity, or those brands with more conservative legal teams.
A good example would be a brand that’s heavily regulated, such as an alcohol company or pharmaceutical manufacturer. Both are likely to retain conservative, risk-adverse legal departments that effectively want a click-wrap license grant from the end user before they allow their marketing teams to redeploy any UGC content in their brands’ marketing campaigns. Another example would be a movie studio that is marketing a movie towards children. While social media networks require users to be over a certain age, the movie studio wants reassurance that they not only get consent to use the content they wish to use but also that the content they are deploying is from someone who is legally capable of providing explicit consent.
Certainly there are tradeoffs. Due to native features on the various social media platforms, the process of securing explicit rights to UGC is no easy feat. Contacting the individual can take a lot of time and effort, and could lead to lower acceptance rates.
Given that UGC campaigns will face inevitable alterations along the way and each social media platform has its own rules and policies, UGC can seem like a daunting task. The good news is that marketing’s goals and the legal team’s goals are not at odds. At the end of the day, both want to generate impressionable, high quality, original UGC that, when repurposed, won’t surprise end users. After all, engendering trust with consumers is what brands care about most.