Digital Rights Management has a pretty broad definition. Specifically, it’s: a systematic approach to copyright protection for digital media. The purpose of Digital Right Management is to prevent unauthorized redistribution of digital media and restrict the ways consumers can copy content they’ve purchased.
This includes iTunes music, digital distribution of movies, and a whole host of issues pertinent to today's digital audience. However, at StoryBox when we speak with our clients about Digital Rights, it's a specific aspect of Digital Rights: when we talk about digital rights, we’re talking about one very specific slice of this: obtaining permission from a customer to use their photo or video as part of the brand's marketing effort. This use typically includes using the customer's photo or video on the company’s website, social channel, newsletter, print media, in-store signage, digital ads, TV commercials, digital billboards and more.
Right now digital rights is a little bit of the Wild West. In this article, I'll focus specifically on digital rights as it relates to YouTube, content that is submitted directly on your own branded website, and Instagram, as these are the three most common questions we recieve at StoryBox. As always I do have to give a quick disclaimer that it’s always important and necessary to consult your legal counsel as you set your User Generating Content strategy and Digital Right Management strategy. This article does not stand as legal guidance or instructions. My intention is merely to share different things to you to consider as you choose your own strategy.
Digital Rights on YouTube
Let’s start with YouTube. If you look at their Terms of Service, there are two main things to consider.
The first thing to note is you'll need to use YouTube's embeddable player when you showcase customer videos from YouTube, and that you’re not authorized to modify it in any way shape or form. The embeddable player preserves the ability for the customers to click back on YouTube and the other part of YouTube Terms of Service is to understand that their intention is to protect each and every YouTube user. That means that if a YouTube user remove their video or changes their mind about their video or changes the accessibility of that video, you as the company needs to honor that.
The way that we had all this in StoryBox is that whenever we display a video from YouTube on one of our client's websites, we always do so within the YouTube embeddable player. This honors the YouTube Terms of Service, as we just use the YouTube embeddable player and we don’t modify it in any way just the Terms of Service specify. You’ll see that we preserve the YouTube link, which takes me to the original video. That’s a way of not only meeting the requirements of YouTube, but it’s also being respectful of the content creator. This means that as the customer watch this video on your website, bodybulding.com, their YouTube view count goes up, so they benefit from that as well. Not only is that respectful, it’s also a great way to incentivize more participation, because most content creators want more views of their content. If you’re offering that to them, it’s a great reason for them to create more and higher quality content for you.
Digital Rights on your Website
It’s great to ensure that as customers submit content on your website, to make sure that they’re giving you ownership right of that content or at least access to that content. If you want to see how we do that here at StoryBox, here's what we do prior to receiving their content.
In our case, the customer completes the required fields, and then agree to terms of service that grant our client the right to use this content however, wherever, and whenever they would like. As an example many of our clients like Levi’s and UNICEF, will actually use this content in a commercial, and they are able to do that because of StoryBox’s Term of Services.
Digital Rights on Instagram
My opinion is that when it comes to Instagram right now, this is a little bit of murky water. I believe that part of that is that they haven’t been around as long as YouTube and I think it’s also the nature of the fact that digital right is a frontier that is still expanding for social media.
I did want to share a story that is very powerful, that implicates what’s ad stake here. It’s a New York Times’ article not a while ago called “On Instagram and Other Social Media, Redefining User Engagement."
They talk in this article about Digital Rights as it stands today, but they also shared an example of companies that got into hot water because they used a customer’s photo from Instagram without asking. There wasn't any sort of direct exchange between the customer and the brand, and that customer saw their photo being used and they were very upset. This led to a very large backlash against the offending company.
This is obviously the worst case scenario. Typically, when we see a brand using a customer's photo from Instagram, the customer is usually pretty excited, they’re honored to be featured, they’re honored for the recognition and for the spotlight. For many customers that’s an incentive for them to create content and tag the related brand. However, that’s not true for everyone and that’s why in this article the New York Times makes clear: “Instagram says that it strongly encourages brands to contact users directly, regardless of whether they have tagged a photo with the brand’s name.”
My interpretation here is that Instagram really does feel like it’s in the company’s best interest to always ask permission regardless. Even if someone were to put in their caption, “StoryBox, we love you. We’ll be honored if you use this photo”, even if it had an extreme case that I’ve never actually seen, you’d still want to make sure you get the digital rights to use this photo. However, at this point, I guess one of the thing to point out is that Instagram, in this article at least, it’s strongly encouraging. This is not yet a requirement, but may be a requirement in the future.
There's two ways that we see brands handle this typically. The first is what I would call an affiliated hashtags. If I were running a contest here at StoryBox and for that contest I created a hashtag that is the incredibly original #StoryBoxContest. I’m going to go out on a limb and say that right now before I start my contest, there is probably not a lot of people using that hashtag. It is so specific that it’s just very unlikely that someone of their own volition would do that without my encouraging them to do so. So a lot of brands take a perspective of implied consent - that is, if they create a company affiliated hashtags and encourage their community to use it, it implies consent if someone uses that hashtag. It is part of a branded campaign and that they’re giving the company permission to use their photo of they use the hashtag.
I’m not going to say whether this is right or wrong. It seems like Instagram is not saying whether this is right or wrong, it seems like they would strongly encourage against this, but they are not saying brands cannot do this. We do see a lot of brands do this, I think that there is some argument to be made that that’s probably a reasonable interpretation if it’s a very specific hashtag.
However, some customers may become upset and so as you speak about this with your team and with your legal counsel, you need a weigh the risks and rewards. The reward here is that if you don’t require someone to get you permission to use their content, you are going to get more content. The risk is if you require people to opt in, you are going to get less content. We see for our typical customer that about 65-75% of all customers on Instagram will respond by giving a brand permission to use their content. They will respond and say ‘yes, here’s a hashtag. Please use this content.’ I would guess that that 25-35% that does not respond, a lot of them just don’t see the request. It’s not that they don’t want you to use it, it’s just that they’re busy.
For our clients who are more concerned about Digital Rights, we actually have an automated way to get a customer's permission to use their photo. When you approve a photo in the StoryBox dashboard, our system can message that user (from your Company Instagram account) and request their permission to use their photo. They just need to respond with a hashtag to give you the rights - our system monitors for this and adds it to your photo when you're given the proper rights.
Other Instagram Considerations
Whether you use a platform like StoryBox or do this on your own, make sure you keep a backup log of Digital Right exchanges. If I’m a user of Instagram, at any time I can delete my photo and that photo carries a paper trail of the permission, the exchange that they had, and the comments that are exchanged over the use of that photo. So at StoryBox we always make sure that we have a backup. We always make sure that we have a digital log of that Digital Rights exchange. That’s really important just to make sure that regardless of what happens, it’s very unlikely, this is an extreme scenario, but you want to make sure you have your own records of that in case the user delete that photo.
Second, you want to make sure that the content has removed if the Instagram user removed their content. Just like in YouTube, the content creator is the king here. If I even give you permission to use this photo and then a year later delete it, you need to honor that customer’s request. The StoryBox tracks this automatically for you. We always make sure that the content is still approved by the user on Instagram to be displayed, but if you’re doing this on your own you want to make sure that you honor that that you only display content that is still publicly available on Instagram.
Third, I would recommend that you link back to the profile. In StoryBox, this an option you can turn it on or off, if it’s default it’s on. What that means is when you’re displaying the customer’s photo on your website, if the viewer wants they can click on the user’s name. It’s a very tiny space on the light box, but they can click on that to go to that user’s profile. In my opinion, that gives this more veracity, it shows the real person and also it’s respectful for the content creator. Again, just like with YouTube, people are motivated by exposure, so give them an added incentive to create more and higher quality content for you as the company because they know that there’s some benefit to them. It’s not monetary, but it’s exposure.