Real Life Advertising Content

“Real life advertising content” — also called “found content” or “found social media content” — is considered the holy grail when it comes to promoting your products. After all, what’s better than someone singing the praises of your product and posting it on social media!?

However, before you go copy/pasting the text, picture, or video to your website or social media account, there are a few legal points to keep in mind. Just because the content is available, you probably don’t have the right to use it without permission(s) — especially if you are using it to promote and sell your own product.

The Photo or Video

The person who TOOK the photo or video normally owns the rights to it. If the photo or video was posted to a social media site such as Facebook or Instagram there may be some license for the platform to use it, but that doesn’t mean that you can. To legally copy and use the photo or video, you must get permission from the person who owns the copyright.

There are a few odd cases where the rights to it might be held by someone other than the person who actually took the photo or video. That can happen if the photographer/videographer works for someone and their work is owned by their employer. If it’s in any sort of news media or publication, it’s best to check with both the publication and the photographer.

When getting rights to use the photo or video, be specific in how you are going to use it and get permission for all of those uses. Using a photo or video in a post is one thing; using it to directly advertise your product for sale is another thing; and using a photograph on your product label would be something else entirely.

People in the Photo

You also must have permission from the people IN the photo or video to use their likeness in promoting your product. If it was a selfie, then you’re covered with getting permission from the photographer. However, if there are other people in the picture or video, you need to get their permission as well. If there’s a child, you’d need permmission from the parent(s) or legal guardian.

Other Trademarked or Copyrighted Content

Check the photo or video for other trademarked or copyrighted content showing up. Things like well known artwork, product or venue logos, fictional characters, even a very distinctive tattoo could need permission to be used. Remember, you are using this image to promote and sell your product. The owner of the copyrighted or trademarked content may or may not want their intellectual property associated with a particular type of product or any product at all.

As an example, consider a picture of your product at Disneyland, with a Disney Princess in the background. Disney might consider it a violation of their trademarks to use a picture of their princess in an image promoting your product. It might seem a stretch but consider how you would feel if your product was in a picture promoting something about which you felt stongly opposed.

Bottom line, if there is some other clearly visible copyrighted or trademarked content in the image, you should get explicit permission before using the image.

Anything that a person writes is protected by copyright which the author automatically owns. That includes testimonials and reviews, no matter where they are posted or published. In order to use a testimonial or review written by someone else you must have their permission. That also means that you cannot alter the content without their permission.

If the testimonial or review is something that was submitted to a site you own (such as a blog or shopping cart), your site terms and conditions should cover the usage. However, if you want to use the text somewhere else or in a different way — say in an advertisement, in a social medial post, or on your product label — you must get explicit permission to do so.

Text or Audio Content

When it comes to soap and cosmetics, making different types of claims can affect the legal requirements for the product. For example, if your product is just soap, saying that it moisturizes makes your soap a cosmetic; if your product is a cosmetic such as a body lotion, saying that it will soothe sore muscles makes the body lotion a drug (actually, an unapproved new drug).

If you do get permission to use a testimonial or review from someone else, you are responsible for the content. It doesn’t matter that it’s someone else (not you) saying your product is the greatest thing since sliced bread and, oh, by the way, it cured their eczema. If what is said makes your product illegal, that can result in your product violating the FDA regulations. It also opens the door to “false advertising” since you can’t prove that your cosmetic product is safe and effective if what you are saying about it makes it actually qualify as a drug.

Watch the content of any testimonial or review that you want use and make sure the content is legal and doesn’t cause other problems besides not having correct permission to use it.

Models or Professional Actors

If the original content was originally produced for advertising purposes and there are professional actors or models in the photo who were hired and paid for their services, it’s possible that your use of the photo or content could result in you having to ALSO pay the actors or models. One more thing to keep in mind.

Bottom Line

The bottom line is that content belongs to someone. It’s owned. If it you don’t own it, then someone else does and you need to get their permission to use it. ESPECIALLY when you are using it to sell your product and make money.


One response to “Real Life Advertising Content”

  1. Hi Marie! Nice run down on things that happen frequently in our industry (with probably little thought for the legality of it all).

    Any recommendations for how to keep track of said permissions, once you ask & someone says yes? And years later we might be asked to prove it? A permission binder or online folder perhaps?

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