REPORT FROM THE U.S.—Hotel guests, especially those on vacation, frequently take pictures during their stay and post them to any number of social media sites. With so many attractive photos of properties widely available and easily accessible online, it can be tempting for hoteliers to take advantage of that user-generated content and risk copyright infringement.
Under U.S. copyright law, the author of a creative, fixed work owns the work and all associated rights of use, said Ilse Scott, attorney for Michelman & Robinson’s hospitality group. A photographer has the ownership rights to his or her photo at the click of the shutter, she said, and that right extends through the photographer’s lifetime plus an additional 70 years after death.
“This automatic copyright exists without regard to whether the photographer is a professional or just an ordinary person taking a snapshot on vacation,” Scott said. “Yes, that goofy selfie you took at the Grand Canyon is protected by copyright.”
Copyright fact and fiction
People frequently assume that just because something is posted online, often without a copyright notice, it’s OK to repost it or otherwise use the content because it’s already being shared, Scott said.
“That’s simply not true,” she said.
Start by assuming any content found on the Internet is probably protected by copyright, Scott said, as well as other potential protections such as trademark law and privacy rights. Even if a photo doesn’t have a copyright notice, it is still protected and considered the property of its creator, she said. That person automatically owns the copyright of the work even if he or she doesn’t register it with the U.S. Copyright Office or add a copyright notice.
That means there is a need to ask permission before using the work, Scott said. Simply providing credit or thanks to the copyright holder isn’t the same as permission, she said, and it doesn’t allow the reproduction or republishing of that work without authorization.
It’s an easy mistake to make. Most people post pictures online because they want other people to see them, said Robert Braun, partner at Jeffer Mangels Butler & Mitchell. When someone posts a picture to a social media site, such as Facebook or Twitter, he said the user agreements with those sites states the user owns the material posted. The site has the license to repost it and reuse it until the user deletes it.
“That doesn’t give a third party the right to take that picture and repost it,” Braun said.
Most of the time, it isn’t much of an issue, he said, and reposting happens frequently. Still, problems can arise.
“If someone who is a professional photographer or media agent or somebody who may be effectively doing business on social media, they’re not going to be happy about it,” Braun said.
Mistaken defenses
Sometimes people who post someone else’s intellectual property think they are protected by the Digital Millennium Copyright Act, Braun said. However, that act actually provides protection for Internet service providers, social websites and sites like YouTube. That means if users of one of those sites posts copyrighted material that doesn’t belong to them, the site or service is protected from users’ actions. The sites also have a process of removing the material.
“That won’t work for most hotel or travel websites,” Braun said. “They’re not an ISP.”
Fair use is also a common defense that could apply to the use of another’s work, Scott said, but the defense is limited, such as when quoting or excerpting a work for the purpose of criticism, review, news reporting or parody.
“However, courts are less likely to find that something is ‘fair use’ if the work is being used for commercial gain as opposed to a non-profit use, such as a classroom,” Scott said. “And republishing a guest’s photograph on a hotel website is arguably a commercial use because it may help attract website traffic and bookings.”
A fair-use defense also depends on a fact-specific analysis of the scope and type of use, Scott said, meaning there’s almost never a clear-cut answer whether the defense would apply to any particular case. The “fuzzy boundaries” of this defense lead to expensive lawsuits because people disagree whether a particular use qualifies as “fair.”
“Whenever possible, it is much better to get clear authorization to use the work, instead of relying on a fair-use defense that could be very costly to prove in litigation,” Scott said.
Getting permission
If a hotelier wants to use a guest photo on social media, Braun said there are a number of ways to receive permission to use the photo. The obvious way is to contact the guest who took the picture and ask for permission. A lot of people will say “yes,” but it can be a slow process.
“You have to contact someone like me to who writes the lease,” Braun said. “A lot of people won’t answer back.”
Another possibility is looking into whether the social media sites would give a license to use certain types of materials, Braun said. The sites have the right to repost, and they might tweak the license agreement, he said. However, not all sites will be willing to do that because there’s not much in it for them.
The copyright owner might be willing to give permission for the use of his or her work in exchange for attribution or a small fee, Scott said, which is common for hobbyists and lesser-known professionals who want more exposure for their work. Should the copyright owner agree, hoteliers should get his or her consent in writing and be as specific as possible about terms, scope of the authorization and an expiration date.
“It is very common to hear claims that the user has exceeded the scope of the authorization,” Scott said. “For example, an owner may have given permission for his photograph to be used on a website, but that permission does not necessarily extend to the use of the same photograph in email or print advertising.”
Anytime it’s unclear whether a hotelier has the appropriate permission, Scott suggested to contact an attorney for advice before using the work. The cost of getting permission is often minimal, she said, while certain circumstances of statutory penalties for copyright infringement can range up to a maximum of $150,000 per work infringed.
“Thus, impermissibly republishing just three photographs could potentially cause a legal exposure of $450,000 in statutory penalties, and the copyright owner also has the right to seek to recover his attorney’s fees and costs from the infringer,” Scott said.
Seeing the potential
While worrying about copyright issues and having to take the extra steps to obtain permission might discourage some hoteliers from wanting to use guests’ photos, there are benefits to user-generated content.
Guests have said they find it helpful seeing other guests’ experiences of different hotel offerings, according to Dan Moriarty, director of digital strategy and activation at Hyatt Hotels Corporation. Hyatt features guests’ photos from Instagram through several outlets, such as the company’s inspirational content hub that allows guests to filter the photos through different categories and through the individual properties’ guest photo galleries.
“Sharing user-generated content provides an opportunity for two-way dialogue and a deeper connection between us and our guests,” Moriarty said via email. “Our guests happen to be amazing, creative photographers, who often capture our hotel experiences in unique ways that have not been discovered. Sharing user-generated content encourages more guests to share their travel and rewards them with the chance to be featured on Hyatt’s social accounts, which are seen by our many followers.”
In order to appropriately handle user-generated content, Moriarty said Hyatt offers worldwide social training to its hotel colleagues that focuses on social strategy, best practices for specific platforms, tone and voice, compliance and more.
When sharing on the same platform as the guest’s original post, Moriarty said his company shares the same original, unedited content with credit and a link to the original creator. For example, when sharing on Instagram, he said the company always notes and tags the account of the person who first shared it.
In instances when a picture will be shared away from the original channel, Moriarty said Hyatt always comments on the post or sends a direct message to ask permission and explains to the guest how the company will use it.
“We only use content when guests approve,” he said. “Additionally, we only share content from public accounts.”