The topic of when, whether, and how to manage the licensing of consumer-generated social content is hotly debated. Rightfully so, as it is a complex issue. Solid precedents are few, and applicable law is routinely made obsolete by developments in technology, products, and social norms.
Brands already use consumer-generated content for commercial purposes. They try to manage their risk, or potential risk, through varying levels of licensing rigor, but the process is uncertain. Some rely on questionable "implied" licenses that seem reasonable but have no solid legal basis. For brands, the need for effective, practical licensing solutions is immediate. So what are the options?
There are vendors emerging with platforms that propose to manage content licensing. Effective examples exist in the professional realm. Harry Fox offers a good example for music licensing. It is relatively simple and efficient but effective only because it has become a fully-adopted industry standard. Platforms aiming to do the same for consumer content face a much higher hurdle.
A more efficient answer is for the social platforms themselves to provide a mechanism for establishing licenses. The Flickr photo service provided by Yahoo enables users to upload images with any one of several licensing options attached, thus allowing a third party to leverage the content according to the terms of its attached license. A more evolved model could include a notification and approval process built directly into the social platform. Even with this, securing and tracking such licenses will be cumbersome and time consuming for brands.
There is another answer: We can let consumers decide if and how they want their content to be used at the time they post it. The Creative Commons organization has done excellent work establishing a playing field for content creators to publish works with clear, coherent rights attached. It is an opt-in model. It's simple, and it works. For content creators who want their work to be used with attribution, used only for noncommercial applications, or used commercially with attribution but only as a complete work (that is, no derivatives or subsets), all of those options are available by simply tagging the work with the appropriate Creative Commons license. Licenses that allow derivatives travel with the derivatives. It's simple.
This same licensing is wholly applicable to consumer content (in fact, it is the model used by Flickr). Most consumers are clear in their intent for how they want their posted content to be used. When users post pictures of themselves to Instagram, they are generally not expecting or wanting that picture to show up in a brand advertisement. On the other hand, if they are promoting a brand, organization, or cause, or responding to a specific promotion or solicitation for social posts, they are generally doing so with the desire for recognition. The problem is that consumers have not learned how to express their intent clearly and legally.
The broadest Creative Commons license likely covers 90 percent of situations where the consumer's intent is some form of promotion. The license is called "CC BY." According to Creative Commons, "This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation."
This allows the content to be used for any purpose, including commercial uses and derivatives, as long as it is used with attribution to the licensor. Short of a completely unlimited license, this license allows brands to make practical use of the content by reducing the brand's obligations simply to attribution.
In practical application, consumers are already trained to add tags to their social posts. Adding the hashtag #CCBY would provide an easy, practical means for consumers to express their intent as to how they approve their post to be used. By the #CCBY tag, a consumer says "I allow this content to be used in any way, with attribution," which is all that both brands and consumers typically need in most cases. It's simple, clear, and, with adoption, it could become an effective, legally defensible de-facto standard.
The #CCBY tag won't help the graphic artist or photographer who wants promotion but is not willing to give up commercial rights. It won't help the musician who is happy to have her song played but unwilling for it to be used in a loop or mash-up derivative. For those needs, other Creative Commons licenses are available. The solution also won't allow content owners to approve specific usages. For example, a post intended to support a children's cause could end up in a media campaign for a brand the content owner finds distasteful. But for the vast majority of consumers and situations, #CCBY is very likely enough.
A focused campaign aimed at teaching consumers to use the tag #CCBY would keep things simple, while providing brands with the timely legal basis they need to use consumer content easily, effectively, and efficiently. Brands can help their own cause by promoting use of the #CCBY hashtag alongside their own social promotions. Brands are saying "if you want us to consider your content in our promotion, be sure to include the #CCBY hashtag." If enough brands start doing this, it won't take long for consumers to get it, presenting an exciting opportunity to clear up a mounting logjam and offering a win-win for both consumers and the brands, organizations, and causes they support.
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