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Image: YSLbeauty

As brands continue to rely heavily on Instagram and other social platforms as a means of advertising and driving sales, an increasingly common technique is emerging: The utilization of consumer and/or influencer-generated photos. This type of content – which is largely viewed as more authentic than traditional ad campaigns by social media users and of course, is much more cost efficient – has many major fashion, beauty, and lifestyle brands scouring Instagram hashtags and brand-specific tags in order to find imagery they like and want to use on their own pages.

Away’s social media strategy, for instance, is one to watch, on this front. The budding luggage company’s co-founder Jen Rubio – who formerly occupied the role of head of social for Warby Parker – is spearheading the brand’s social presence, and one of the (many) noteworthy takeaways from Away’s growing social media presence is its user-generated Instagram photos.

As noted by Digiday recently, “Out of [Away’s] 676 Instagram posts, 600 are user-generated that have reached 15 million users organically.” That same article notes that “Away also places paid ads on Instagram, but Rubio said organic posts and user-generated content are how most people find out about the brand.”

How does Away go about getting these user-generated photos, you ask? From fans of the brand. Instagram users simply tag Away in their posts, and Away shared them. “We’ve ingrained and embedded this behavior of sharing with our community,” Rubio told Digiday. And the result is free content. Rubio said the brand never pays for these types of endorsements, unlike the $225 to $300, which Away shells out for the in-house photos it uses on its social channels. 

This is a widely-used practice among big-name fashion brands. Jane Cunningham, the journalist behind British Beauty Blogger, a well-known London-based site, told TFL that she is routinely approached by brands all seeking to make use of her photos. The terms they have offered her are far from uniform, she says, but one common theme: They are almost always “entirely in the brand’s favor.”

Cunningham notes that it is “not unusual across channels, particularly Instagram, for a brand to send a generic ‘hey, we love your image – respond YES if you are happy for us to use it on our channels.’” Such cold calls for content come with strikingly one-sided terms and conditions, which weigh heavily in favor of the brand. Cunningham points to L’Oreal’s terms as a particularly telling example. The brand’s terms read as follows:

By responding #yeslorealpro or uploading content to our image gallery you agree to the following: You grant to L’Oréal and its affiliates and/or related entities, a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, transferable right to use your video(s), photo(s) and/or other content posted to Instagram, Facebook, Twitter or Google+, together with your social media handle, social media user name, profile picture, caption and location information you may have included in your content (“User Content”) that you have tagged with any of the Hashtag(s) in any media, including but not limited to on its webpages and social media pages, retailer sites, third party sites, stores for its marketing and/or its advertising. You grant L’Oréal the right to use your username, real name, image, likeness or other identifying information in connection with any use of your User Content.

Also included in these terms, “You accept that L’Oréal will not pay you for the use of your User Content and/or for any intellectual property rights connected with them.”

The latter point is a noteworthy one, as most brands expect to use the content without having to pay for it. “I was approached a while ago by YSL who wanted to use a particular image of a mascara on their website and emails, offering to credit me wherever they used it,” Cunningham says. “I asked about budget, because the request came from marketing, so the image would be used in a promotional capacity but they said they had none.”

This routine tactic, according to Cunningham, is “basically a free way for brands to fill their social content while positioning it as a great honor for the content creator!” So, while the brands are certainly benefiting from this scenario, the extent to which individual Instagram users, whose imagery is used by brands, stand to gain, is likely not the same. Cunningham, for one, is skeptical as to whether the potential exposure that could come about as a result of such a deal – the reason many Instagram users agree to hand over rights to their photos in the first place – evens the playing field. She says, “When people do upload a selfie or product picture, the brand links straight to the product in question and [much] more quietly offers a link to your site.”

In other instances, brands are taking things a step further. In addition to sourcing photos from users via hashtags and brand-specific tags on Instagram, a popular tactic for brands, NYX Cosmetics, for instance, has essentially taken to stating in its very lengthy terms and conditions (which you have to go to NYX’s website to read) that when you use the hashtag “#nyxcosmetics” on any of the photos you post on Instagram, you are granting NYX the right to “alter,” “edit” and “re-post” that content without your authorization.

Yes, you read that correctly. The relevant part of the company’s terms is as follows:

AS STATED IN INSTAGRAM’S PRIVACY POLICY, ONCE YOU HAVE SHARED USER CONTENT OR MADE IT PUBLIC, THAT USER CONTENT MAY BE RE-SHARED BY OTHERS. NYX PROFESSIONAL MAKEUP SHALL HAVE THE RIGHT TO USE ANY CONTENT SUBMITTED BY USER USING A NYX PROFESSIONAL MAKEUP-CREATED HASHTAG AND SHALL HAVE THE RIGHT WITHOUT LIMITATION TO EDIT, STYLIZE, CROP, DIGITIZE OR ALTER THIS CONTENT AND USE YOUR CONTENT IN ACCORDANCE WITH THE RIGHTS YOU GRANT UNDER THESE TERMS AND OUR GENERAL NYX PROFESSIONAL MAKEUP WEBSITE TERMS AND CONDITIONS LOCATED AT WWW.NYXCOSMETICS.COM/TERMSANDCONDITIONS.HTML.

Chances are, if you use NYX’s hashtag and the company subsequently makes use of your image without authorization, you might be able pursue a merited copyright infringement case against them, regardless of the fact that their terms and conditions state otherwise – on the basis of contract law.

As the court noted in Specht v. Netscape, a case that went before the United States Court of Appeals for the Second Circuit in 2001 and that centered on the enforceability of browse-wrap software licenses, “Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.”

In the hypothetical case at hand, NYX’s contract terms (that by using its hashtags you are agreeing to grant them a license to use your imagery) are hidden away on their website and not visible or conspicuous on Instagram. One might be able to make the argument that this is ambiguous and does not give rise to a fair – or valid – contract.