See the whole article at The New York Times, 9/20/15.
Shereen Way did not think twice about posting a photo on Instagram of her 4-year-old daughter wearing a green dress and pink Crocs sandals.
Crocs, which Ms. Way had identified with a hashtag, pulled the snapshot from Instagram and featured it in a gallery of user-generated photographs on its website. The company had not asked Ms. Way for permission, and she was not aware that Crocs had used the photo until a reporter contacted her on Instagram.
“No one reached out to me,” Ms. Way, 37, of Pearl River, N.Y., said in a phone interview. “I feel a little weirded out.”
Much later, Crocs sought her permission.
But as the practice of promoting user-generated content has intensified, the intersection between brands trying to capitalize on social media activity and people’s expectations of some privacy (even as they post personal photos on public platforms like Instagram) has grown far more murky.
Clothing and retail brands say that featuring user-generated photos on their websites and in their Instagram feeds is an effective way to connect with consumers, who are increasingly skipping commercials, blocking online ads and generally ignoring anything that resembles traditional advertising. Taking photos from social media accounts is also often cheaper and faster than creating a traditional marketing campaign.
A spokeswoman for Olapic said in an email that brands do not always need to ask for permission to use a photo on their websites because users can give implied consent by tagging a company in their posts.
Privacy experts point to the Children’s Online Privacy Protection Act, or Coppa, which requires operators of websites and apps aimed at children to get “verifiable parental consent” before collecting information from children under the age of 13. The F.T.C., which enforces the rules, declined to comment.
“When a company obtains information about a child under the age of 13, however it’s obtained, Coppa kicks in,” said Marc Rotenberg, president of the nonprofit Electronic Privacy Information Center. “Then the question is, ‘Did the parent consent to the use of the information by the company?’ ”
Adults also have rights to their photos. The person featured in a photo may own the publicity rights, which may give the individual control over the commercial use of his or her likeness, legal experts say. Broadly speaking, whoever takes a photo holds the copyright.