More and more brands are using social media platforms like Facebook and Instagram to promote their products and services. One of the most popular approaches to foster consumer loyalty and interactivity is to conduct contests where consumers are invited to submit user-generated content such as photos or videos relevant to the theme at-hand. Who doesn’t love videos of kids playing in the snow or an oblivious parent getting hit by a stray snowball (for winter themed promotions) or pictures of tailgating parties celebrating the big game (in honor of Super Bowl Sunday)? While these types of promotions—often referred to as UGC contests—have significant benefits, brands must be careful how they are conducted and wary of potential intellectual property (IP) and promotional law issues that lurk in the background.
There are a host of IP issues that need to be considered, and the UGC contest rules must clearly enumerate how these issues will be handled. Here are three issues to consider.
Does the entrant have permission from everyone in the photo/video to submit it as an entry in the contest?
If not, there are potential privacy and publicity rights of these individuals that may be impacted. The safest approach is for the contest rules to limit submissions to photos/videos including only the entrant. In reality (and notwithstanding our infatuation with selfies), this approach might be too limiting in many marketing campaigns. More practical considerations will need to come into play whereby the contest sponsor advises entrants (through the rules) that they must have the consent of all of those included and/or featured in the submission, and conditioning the award of contest prizes on affirmation of this.
Does the entrant own the copyright in the submission or have permission from the owner to submit it?
With a selfie or other picture taken by the entrant, this is generally not an issue as the photographer (or videographer) would own the relevant copyright in the submission. However, if someone else takes the picture that an entrant submits, ownership in the submission does not automatically flow to the entrant. While the entrant could certainly have obtained certain rights from the photographer/videographer to submit it in a promotional contest, the contest rules must clearly describe what is and is not acceptable.
Are entries that include third party marks (such as the Starbucks’ logo that appears on the coffee cup of the parent watching their child frolic in the snow) permissible?
The safest course of action is to prohibit entrants from including all third party marks, brands, etc. except for those of the contest sponsor (which the sponsor would grant entrants a limited license to use in the contest subject to the terms and conditions set forth in the Official Rules). The use of a third party’s mark, logo, name etc. in a UGC contest will almost always have some inherent risk, though such risk can be minimized (from a practical standpoint) depending on a number of factors such as the prominence of the mark in the submitted photos/videos, the prominence of the contest, and whether the sponsor uses a photo/video with third party marks outside of the applicable social media platform.
The key to successfully navigating all of these issues (and others) is to make sure that the UGC contest rules clearly and logically identify the submission requirements and restrictions for that promotion, and for the sponsor to follow those rules when administering the contest. I repeatedly see brands recycling the rules for a prior UGC contest, and not truly understanding what they say or not following them. Disgruntled losers will notice these inconsistencies and will be quick to point out that the selected UGC contest winning photo features a family when the rules state that only the entrant can appear in the submission. UGC contests are designed to engage people in a brand. The last thing that a company wants is for its marketing campaign to be the focus of consumer complaints, third party challenges and government enforcement officials’ scrutiny.
Jay S. Newman is a Principal in the Washington, D.C., office of Fish & Richardson, focused on advertising, sweepstakes, contests and privacy law, with extensive experience before the Federal Communications Commission, Federal Trade Commission, Food and Drug Administration and...