Facebook Permits Photo Commentary, Sparks Interesting IP and Advertising Questions

Facebook is constantly expanding the ways in which users can interact with the social media platform. Recently, it is has begun to permit users to upload photographs as comments to the status messages of others. This means that users may post an image that they took with their smart phone in response to someone’s message, or they may borrow an image from a third party and use it as their own. Given that users have yet another method of using images to “speak” on the social media platform, this gives rise to interesting questions under intellectual property and advertising laws.

For one, there are copyright law concerns as one must consider the owner of the images themselves — who owns them and what rights may lay within them? On one hand, a user who takes a photograph with his or her smart phone and posts it to Facebook clearly will own the photograph. But what about a user who chooses to “borrow” an image from a third party and post it? Will the third party have a right to object to the use of their image in this manner?

In some cases, yes. Although Facebook has a license to display images posted to its platform, many of the more detailed ownership issues may give rise to tension between image posters, those who want to use the images, and image owners. But one must still consider the type of use, and whether it could fall within the definition of a “fair use” under copyright law. A “fair use” is one that is without the permission from the copyright holder. Examples of a “fair use” include commentary, criticism, news reporting, research, teaching, and library archiving. One may argue that many uses of an image on Facebook could potentially fall within the purview of “commentary” or “criticism.”

The use of the images as comment responses on status messages is particularly interesting in the context of brand pages where consumers may now upload images of their experiences with a brand’s products. Consumers have always been able to voice concerns with products and services on brand social media pages. However, they may now display those concerns for the world to see by simply clicking on the camera icon next to a comment box. Although the new photo-comment feature may provide some benefits, many brands are concerned about the effects of this new feature. In particular, many brands are not excited by the thought of a Facebook user uploading images of their product being used improperly or uploading images of product defects. Brands may consider challenging these images based on trademark rights, but the image may or may not be removed and such a challenge may tarnish the brand’s public reputation.

Further, there is still the question of whether the brand owner could even attempt to rely on trademark rights when challenging images. A brand owner may have an argument that the use of their logo without permission is an infringement. This will not, however, be a clear case of trademark infringement since the courts have allowed what they have called “nominative fair use,” which is essentially when a person has the limited right to display the name of a product because there is no other way to identify the product in an advertisement or in commentary. Still, with this new feature on Facebook, users may look forward to reactions from brand owners related to the use of their product logos in commentary.

Beyond copyright and trademark law concerns, advertising law requires brand owners to consider their marketing techniques. For example, consider a brand owner that asks a group of users — or celebrities — to endorse its products. The brand owner should give clear guidance and monitor the uploaded photographs to ensure compliance with the FTC’s Endorsements & Testimonials Guidelines. For example, a celebrity uploading an image of herself wearing a clothing brand in response to a brand’s “Who wore it best?” status would still need to disclose a material connection between herself and the brand. Rules of advertising must not be forgotten in the social media realm.

These aren’t entirely novel issues in the social media world, but they are still things that brand managers should consider. All companies that interact with Facebook should be award of these changes as it may require additional monitoring of social media pages. Although brands are encouraged to always monitor social media to better understand customers and to have social media guidelines in place, brand managers may need to meet to discuss how best to address the new photo-comment feature. For example, brands need plans in place for responding to images that do not reflect the brand positively and must consider the possible backlash that may arise from any proposed steps to mitigate damages.

Arent Fox is continuing to monitor developments in social media. Please contact the listed attorneys with questions.