The fast nature of the technology-driven digital age we live in provides you with endless channels to promote your brand. Each new marketing technique seems to be cheaper than the last, from buying ad space in a newspaper or airtime on radio or television to advertising online or posting on social media. Now, many brands use content created by others, the seemingly cheapest option of all. User generated content (UGC) is content that consumers create and upload which features a brand or product. Although UGC is inexpensive and sometimes free, just like every other marketing strategy, there are legal and commercial issues to address. This article explores the legal issues to consider, or legal filters to apply, when opting to use UGC.

What is UGC?

UGC is content that users or consumers create. Users may create UGC and upload it on your website or on third-party platforms like social media. For example, UGC includes:

  • posts, comments and reviews on social networking sites e.g. Facebook;
  • images, photos and videos uploaded to sharing sites e.g. YouTube and Instagram;
  • comments on blog sites; and
  • articles on crowdsourced sites e.g. Wikipedia.

Copyright

All UGC receives copyright protection. The Copyright Act 1968 (Cth) provides the owner of the content with a set of exclusive rights. The content typically falls under two categories: ‘works’ or ‘subject matter other than works’.

Works Works include:

  • literary works;
  • dramatic works;
  • musical works; and
  • artistic works.                           
Subject Matter Other Than Works Subject matter other than works include:

  • sound recordings;
  • cinematographic films;
  • TV and sound broadcasts; and
  • published editions of works.        

 

The creator or user who contributes the content usually owns the copyright and any associated exclusive rights.

Obtaining Legal Rights

There are two ways to receive UGC:

  1. as a result of a contest or campaign for consumers to upload content directly to your website; or
  2. through third-party platforms, such as Instagram.

If you have received UGC as a result of a campaign, where users submit their content straight to your website, or if you are working directly with social influencers, the best way to obtain the rights to the content is through an agreement. This could be as simple as click wrap agreement, where the user agrees to allow you to use the content before posting the content.

Terms and conditions on your website are the best way to outline the:

  • rights and responsibilities of both parties regarding the content uploaded;
  • requirements and guidelines for the content;
  • way in which you intend to use the content; and
  • ownership of the content.

Within your website terms and conditions, you should include a clause that licenses or assigns any content to you.

Licence A licence provides you with the right to use the UGC, subject to the terms of the agreement. Therefore, the owner of the content can also simultaneously allow others to use their content through a licence.
Assignment An assignment will provide you with exclusive rights to the content and you will become the copyright owner.

 

If you acquire UGC via a third-party like a social media platform, where users feature your brand or use a hashtag, obtaining rights is more complicated. You may assume that, if someone promotes your brand in their photo, this permits you to use the image. However, this is not the case. So, how do you use it?

Practical Ways to Use UGC from a Third-Party Platform

Although the safest way to ensure you have the rights to use someone else’s work is to have an agreement transferring rights that both parties sign, this is not always practical. To mitigate the risks of copyright infringement when taking a post from a third-party platform, there are a few steps you should consider.

Give Credit Where Credit is Due

Attributing the creator of the content is an easy and effective way to minimise the risk of a legal dispute. Simply tagging the creator and acknowledging them covers yourself. Doing so may also excite the user that you are using their name and photo.

If you are using Instagram, Facebook, Twitter, LinkedIn or another similar platform, features such as reposting and sharing allow you to credit the source.

Leave Content in its Original Form

Altering content without permission can attract unwanted attention. For example, altering content may offend the owner. Further, if you rip off someone else’s work and pass it off as your own, your conduct may be misleading. Increasing the brightness or using a filter is probably acceptable, but be careful when you start fiddling with someone else’s work.

Just Ask for Permission

It may not be a comprehensive agreement, but sending a direct message to the content owner through the social network platform is an easy way to seek written permission. Most people would be delighted to receive a message from a brand that they use, wear, know and love.

Act Fast

If anyone raises questions, concerns or complaints about their content appearing on your platform, respond quickly. Usually, the best approach is to take the image down.

However, sometimes it can be more complicated than that. If the issue escalates, you should seek legal advice.

Key Takeaways

UGC stretches the boundaries of copyright law. The fans and users of your brand are your best marketers. As such, many industries and brands capitalise on the benefits of UGC. It is a great way to show real users and their satisfaction with your brand. While it is tempting to use content you find on social media platforms that promote your brand, you must do so the right way. Therefore, before you choose your Instagram filters for your next post, make sure you use the right legal filters first.

If you have any questions or need advice on using UGC for marketing purposes, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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