As reported by MediaPost, replacing the use of stock images with crowdsourced photos from real people is gaining popularity with major brands. The attraction is obvious: photos from real consumers can be more "authentic, local and real" than stock imagery.
But it's important to keep some rules of the road in mind to avoid the potential of liability for use of found content.
(1) Make sure you can get rights in the photo itself. Just because the photo is posted publicly doesn't mean that it's in the public domain, free to be used by others, especially in advertising. (Some brands have found that out the hard way, getting sued for use of found photos in their ads.) The fact that you can physically copy it doesn't mean that, legally, you can copy (or use) it. Also, just because it's posted on a platform with terms of use that give the platform itself a license to the content, doesn't necessarily mean that other users on the platform can take any content posted there for other purposes, particularly off-platform and for commercial purposes. In fact, you should assume that you can't, without getting permission.
(2) Make sure you can get rights to use the likenesses of anyone pictured in the photo. The photographer, unless the photo is a selfie, probably doesn't have those rights to give because they belong to the individuals themselves. You'll need their permission. And if the photograph includes a child, you'll need her parent's or legal guardian's permission too. In writing.
(3) Make sure there's nothing else in the photograph that looks like it may be subject to someone's rights, like artwork or even a very distinctive tatoo. If it does, that's another permission you'll need.
(4) Put a reliable consent process in place. If you have the content owner's contact information, you can reach out with a release, or provide a link to a release form, or ask the owner to contact you. There are automated permission processes that may be effective for your purposes as well.
(5) Don't just rely on grant of right provisions in terms of use. To be sure you're getting reliable permission for use of found content, it's best to have specific consent. A user who never clicked on a website's terms of use (that can happen!), could argue that she didn't agree to a buried grant of rights provision.
(6) No means no. And nothing means no. If you reach out to someone for permission to use her photo and she says no, or doesn't respond, find another photo.
(7) If want to use found content showing a consumer interacting with your product (or making claims about it), be sure that what's depicted is an appropriate (i.e., substantiated) representation of your product and reflects a typical user experience. If you seek permission from the consumer to use the content, include testimonial language in the release.
(8) Not to make your head explode but don't forget that it's possible that your use of found content could trigger payment obligations under SAG-AFTRA if that content was originally produced for advertising purposes.
Be authentic but be safe!
Authentic imagery is a necessary element in sending brand messaging to today's savvy consumers. We know that consumers can pick up a brand's messaging within seconds of seeing a single image. This is why it's so important to create authentic, local, and real images for brands, as imagery speaks faster than words alone.
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