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What's ambiguous about #crocs (which is a registered trademark) in that context? I don't believe they should directly use other's content for material gain (in

by jrandm 11y ago

What's ambiguous about #crocs (which is a registered trademark) in that context? I don't believe they should directly use other's content for material gain (in advertisements, essentially), but a photo/comment the creator willingly released to the public and attached to the brand logically allows for re-sharing that content to me, especially by the entity explicitly mentioned. I wouldn't be on the business's side had this been a private account or even a blog somewhere, but she published an image to the public on a hugely popular platform and tagged it with the company's name. How is that different than sending the image to the company saying "Look at how cute my daughter is in these crocs?" Other than that millions of people could see the image prior to the company reproducing it.

Dylan16807 11y ago
>a photo/comment the creator willingly released to the public and attached to the brand logically allows for re-sharing that content to me, especially by the entity explicitly mentioned. I don't see why you think that at all. Re-tweeting, sure, but that's because it's an expected result of putting something on twitter, with or without tags or even text. Sending someone a picture on twitter in no way implies I am giving it to them to do whatever they want, in the absence of external context. Or in other words: The tweet as a whole is released to the public of twitter. There's no license to derive or take elsewhere. Sending it directly in the mail doesn't let them use it to advertise either.
- jrandm 11y ago
  You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right? They weren't advertising with it, the article mentions they did ask for permission before doing that. As-is all I'm aware of Crocs doing is taking an image that was published and willingly tagged to their brand and putting it in a public collection of similar photos. If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website? I don't think so.
  - Dylan16807 11y ago
    >You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right? Via the platform means it's still my tweet, and I have total control over it, and they can't do anything else with it. Doing other things is not academic in that case. >They weren't advertising with it[...]putting it in a public collection Putting it in a public collection for the purpose of..... advertising. >If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website? Definitely unreasonable. "Look" and "put on your website" are different things.
    - jrandm 11y ago
      Roundaboutly everything a business does is advertising, I'd draw a line between commercial advertising (ie: paid ad placements, physical displays) and content only available by someone actively going to a photo gallery on the website. "You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same." That's pretty explicit, you don't have total control over it once you publish that photo, neither according to the policy nor in a practical sense.
  - scintill76 11y ago
    > You are explicitly allowing them to reshare your image via the platform I don't know if I fully concede that, but it's almost immaterial, because the company ripped it off the platform and rehosted it on their own site. > the article mentions they did ask for permission before doing that No. "Crocs pulled the photo and posted it to their website [...] It was only much later that Crocs sought explicit permission from Ms. Way, which she declined." From the NYT source article: "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." You're appealing to what is "reasonable" to expect or not expect someone to do with your content, but it doesn't really matter -- reproducing someone else's copyrightable work without their express permission is illegal, and hashtags aren't express enough. (In the US at least, and again I'm not a lawyer.)
scintill76 11y ago
If someone posted a photo with an individual with crocodiles, who happened to be wearing Crocs™, and it was hashtagged "#crocs", it's possible they did not intend to consent to be used for Crocs™ advertising material, but your proposal would assume they are. It may be contrived, but I don't think it's so contrived as to be automatically dismissed as a problem with your position. It goes to the general problem of ambiguity in hashtags.[0] IANAL, but AFAIK having a trademark (in what jurisdiction?) does not confer the ability to appropriate others' IP even if they used your trademark. At best Crocs, Inc. can probably censor uses of the #crocs hashtag. If she had snail-mailed Crocs, Inc. her photo with nothing else but the caption she wrote on Instagram, it would not give them a license to copy it! I feel like a broken record at this point... I agree it would be bizarre, and some people's social media behavior like this case is bizarre, but it would not justify them reproducing it without her permission. They reproduced it on their own website, which is different than retweeting or whatever analog Instagram might have. Honestly I'm not sure exactly where I draw the line, especially given I don't know all the nuances of social media's features and etiquette, but rehosting crosses the line. (I don't typically defend IP law as it exists today, but as long as it remains the law, I will when rich corporations try to trample lowly individuals' IP rights.) [0] Edit: In the spirit of IP attribution, I will note I did read another commenter's post here about crocodiles and have probably derived this scenario from it. :)
- jrandm 11y ago
  I can see potential ambiguity in hashtags and wouldn't apply my argument carte blanche, but this specific instance doesn't have any confusion in usage. My main concern here is that the positions are often reversed -- in this instance a company used an individual's content in a friendly, appropriate way, and did ask permission before any standard commercial use. Usually an individual is using a corporation's content in a friendly, appropriate way and is forced to desist. I'd rather see more sanity in IP rights and look at specific instances than broadly apply some one-size-fits-none legal interpretation. I'd also rather the discussion be about practical concerns in (public) sharing on social media; any image tagged with popular terms and public is out of your control regardless of IP enforcement. My point is more that the chain of events is predictable and will continue to happen, so rather than attempt to enforce a virtually-meaningless copyright on a photo tell people this is normal and be mindful of what and how you share your content.

by jrandm 11y ago

Dylan16807 11y ago

>a photo/comment the creator willingly released to the public and attached to the brand logically allows for re-sharing that content to me, especially by the entity explicitly mentioned. I don't see why you think that at all. Re-tweeting, sure, but that's because it's an expected result of putting something on twitter, with or without tags or even text. Sending someone a picture on twitter in no way implies I am giving it to them to do whatever they want, in the absence of external context. Or in other words: The tweet as a whole is released to the public of twitter. There's no license to derive or take elsewhere. Sending it directly in the mail doesn't let them use it to advertise either.

jrandm 11y ago
You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right? They weren't advertising with it, the article mentions they did ask for permission before doing that. As-is all I'm aware of Crocs doing is taking an image that was published and willingly tagged to their brand and putting it in a public collection of similar photos. If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website? I don't think so.
- Dylan16807 11y ago
  >You are explicitly allowing them to reshare your image via the platform -- whether that's an embedded view, iframe, img tag pointing to the original, or copy with attribution seems academic to me. The point is you allow them to send your content on to other people, right? Via the platform means it's still my tweet, and I have total control over it, and they can't do anything else with it. Doing other things is not academic in that case. >They weren't advertising with it[...]putting it in a public collection Putting it in a public collection for the purpose of..... advertising. >If I posted a picture of myself on every bulletin board I could find posing with [popular_brand] and labeled it with a big, flashing sign that said '[brand] LOOK HERE', is it unreasonable for that brand to share my image on their website? Definitely unreasonable. "Look" and "put on your website" are different things.
  - jrandm 11y ago
    Roundaboutly everything a business does is advertising, I'd draw a line between commercial advertising (ie: paid ad placements, physical displays) and content only available by someone actively going to a photo gallery on the website. "You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same." That's pretty explicit, you don't have total control over it once you publish that photo, neither according to the policy nor in a practical sense.
- scintill76 11y ago
  > You are explicitly allowing them to reshare your image via the platform I don't know if I fully concede that, but it's almost immaterial, because the company ripped it off the platform and rehosted it on their own site. > the article mentions they did ask for permission before doing that No. "Crocs pulled the photo and posted it to their website [...] It was only much later that Crocs sought explicit permission from Ms. Way, which she declined." From the NYT source article: "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." You're appealing to what is "reasonable" to expect or not expect someone to do with your content, but it doesn't really matter -- reproducing someone else's copyrightable work without their express permission is illegal, and hashtags aren't express enough. (In the US at least, and again I'm not a lawyer.)

scintill76 11y ago

If someone posted a photo with an individual with crocodiles, who happened to be wearing Crocs™, and it was hashtagged "#crocs", it's possible they did not intend to consent to be used for Crocs™ advertising material, but your proposal would assume they are. It may be contrived, but I don't think it's so contrived as to be automatically dismissed as a problem with your position. It goes to the general problem of ambiguity in hashtags.[0] IANAL, but AFAIK having a trademark (in what jurisdiction?) does not confer the ability to appropriate others' IP even if they used your trademark. At best Crocs, Inc. can probably censor uses of the #crocs hashtag. If she had snail-mailed Crocs, Inc. her photo with nothing else but the caption she wrote on Instagram, it would not give them a license to copy it! I feel like a broken record at this point... I agree it would be bizarre, and some people's social media behavior like this case is bizarre, but it would not justify them reproducing it without her permission. They reproduced it on their own website, which is different than retweeting or whatever analog Instagram might have. Honestly I'm not sure exactly where I draw the line, especially given I don't know all the nuances of social media's features and etiquette, but rehosting crosses the line. (I don't typically defend IP law as it exists today, but as long as it remains the law, I will when rich corporations try to trample lowly individuals' IP rights.) [0] Edit: In the spirit of IP attribution, I will note I did read another commenter's post here about crocodiles and have probably derived this scenario from it. :)

jrandm 11y ago
I can see potential ambiguity in hashtags and wouldn't apply my argument carte blanche, but this specific instance doesn't have any confusion in usage. My main concern here is that the positions are often reversed -- in this instance a company used an individual's content in a friendly, appropriate way, and did ask permission before any standard commercial use. Usually an individual is using a corporation's content in a friendly, appropriate way and is forced to desist. I'd rather see more sanity in IP rights and look at specific instances than broadly apply some one-size-fits-none legal interpretation. I'd also rather the discussion be about practical concerns in (public) sharing on social media; any image tagged with popular terms and public is out of your control regardless of IP enforcement. My point is more that the chain of events is predictable and will continue to happen, so rather than attempt to enforce a virtually-meaningless copyright on a photo tell people this is normal and be mindful of what and how you share your content.