But as the practice of promoting user-generated content has intensified, the intersection between brands trying to capitalize on social media activity and people’s expectations of some privacy (even as they post personal photos on public platforms like Instagram) has grown far more murky.
No one, it seems, wants to actively police traditional rights issues like those presented in Ms. Way’s situation. Using photos like her daughter’s generally requires getting the consent of the person who posted the original content before it can be reused elsewhere.
“This is a new area, and we want to make sure our customers are dotting the ‘Is’ and crossing the ‘Ts,’ ” said Sharad Verma, the chief executive and co-founder of Piqora, which helps brands curate user-generated content from sites like Instagram. “It’s important for brands to be very upfront and transparent about how the photos are being used.”
For its part, Instagram, which has about 300 million users, says it is responsible only for how brands use consumers’ photos posted on its site.
The Federal Trade Commission, which polices unfair or deceptive practices, could step in if Instagram violated its own privacy policy or promises made to consumers in its terms of service. But consumers have little recourse on their own, other than pursuing costly legal action.
The lack of oversight comes at a time when brands and social media sites are strengthening their relationships in efforts to generate ad revenue and lock in loyal consumers. Instagram, in particular, has been working to open its photo feed to all advertisers, big and small, across the globe.
Privacy groups and consumer advocates continue to voice concerns about how companies use data culled from social media to endorse or sell products. In 2012, Facebook, which owns Instagram, reached a settlement in a class-action lawsuit over its “sponsored stories,” or its practice of turning a users’ likes into ads tailored to their friends. The court approved the settlement in 2013, but it is currently being appealed.
Still, in the age of the selfie, many users enjoy getting a broader audience for the photos, opinions and tastes they share online.
I’m always really excited,” said Liza Day Penney, a 23-year-old from Dayton, Tenn., whose photo appears on American Eagle Outfitter’s website. She estimated that the company has used more than half-a-dozen of her photos, and even once sent her a $25 gift card.
“That was one of the things, too, that really encouraged me to continue to post and continue to tag and hashtag them as I wear the clothes,” she said.
In many cases, getting consent from a user can be as casual as a comment underneath the photo itself.
“We love your pic!” the Crocs Instagram account writes on many of the user-generated snapshots featured on its website, followed by a request to feature the photo elsewhere.
To agree, users just have to reply with “#CrocsOk,” and many do.
In the case of Ms. Way, however, Crocs did not comment on the photo to ask for permission until after posting it on its website. Ms. Way has not responded and says she does not intend to.
In a statement, Crocs said it believed it was “acting consistently with social media marketing best practices.”
“We are continually evaluating our practices and welcome consumer feedback,” the company said. “It’s our policy to get permission before making any other use of photos consumers have tagged us in.”
Clothing and retail brands say that featuring user-generated photos on their websites and in their Instagram feeds is an effective way to connect with consumers, who are increasingly skipping commercials, blocking online ads and generally ignoring anything that resembles traditional advertising. Taking photos from social media accounts is also often cheaper and faster than creating a traditional marketing campaign.
The tactic is particularly popular among apparel companies, as they rethink how to maintain customer loyalty in the digital age.
“There’s a significant risk of us losing that relationship with the customer and that bond you get from the experience in the store,” said Joe Megibow, the chief digital officer at American Eagle, which has galleries of consumers’ photos on its website.
Mr. Megibow said American Eagle, which works with Olapic, monitors Twitter and Instagram for photos that users have identified with the hashtag #AEOstyle or #AerieReal. Olapic is a marketing company that helps brands collect users’ photos.
