Pushing the Consent Boundaries

The New York Times recently reported about Shereen Way, the mother of a Crocs-wearing 4 year old, and an unauthorized photo grab. Ms. Way had taken a picture of her daughter at a community playground and uploaded it onto Instagram. In the description, she added the hashtag #Crocs. Crocs pulled the snapshot from Instagram and featured it in a gallery of user-generated photographs on its website. It did this without ever getting Ms. Way's permission.

In a statement, Crocs said it believed it was "acting consistently with social media marketing best practices." In other words, it thinks that Way gave Crocs an unlimited license to use her image because of the hashtag. 

The article points out that retail brands are featuring user-generated photos more and more because consumers are increasingly skipping commercials and blocking online ads. Social-media photos are also much cheaper and faster than ordinary campaigns. 

It probably won't be long before a federal district court will need to weigh in on whether a hashtag constitutes consent under copyright law.