“Friends With Commercial Benefits: Social Media Users Do Not Want Their Likeness Used in Advertisements”

Jackie Widmann & Victoria Ontman

Digital/Social Blog Post

“Friends With Commercial Benefits: Social Media Users Do Not Want Their Likeness Used in Advertisements” – By Marie-Andrée Weiss

Within the past five years, technological advances have fostered the growth of a new age in today’s advertising techniques.  Social media has become a major staple within American culture, one that most people utilize in the workplace as well as their personal lives.  As we have discussed the many ways in which advertising affects the development of culture and consumer behavior, we have learned a lot about the effects of social media, both negative and positive.

In the article, “Friends With Commercial Benefits: Social Media Users Do Not Want Their Likeness Used in Advertisements,” Marie-Andreé Weiss examines several court cases and the ways in which social media affected users in terms of their ownership of personally uploaded content.  Weiss discusses multiple cases involving individual users of social media and the ways in which they felt taken advantage of by large corporations.  She elaborates on non-economic versus economic values of the uploaded content, and goes into depth regarding its implications in the greater scheme of advertising and social media.

Weiss begins by discussing the right of publicity and the ways in which people use their uploaded photographs on social media websites.  She references a court case, Chang Vs. Virgin Mobile, which occurred in 2007.  In this case, a young girl posed for a photo with one of her peers, who then uploaded this photo to her personal Flickr account.  Shortly after this photograph was uploaded, a bus-stop campaign appeared in Australia using Chang’s photo as the featured image of the advertisement.  Chang sued Virgin Mobile, claiming invasion of privacy, libel, and copyright infringement.  However, the court dismissed the case and the campaign continued to run despite Chang’s resistance.

Chang Vs. Virgin Mobile,  Image taken from Google.com.

Chang Vs. Virgin Mobile, Image taken from Google.com.

Weiss then continues to discuss another case, Robyn Cohen Vs. Facebook, which took place in 2011.  Facebook users claimed that the “Friend Finder” service violated the Lanham Act, which “prohibits using a name, or a false or misleading description or representation of fact likely to deceive as to the affiliation of this person with another person or this approval of his or her goods or service.”  Essentially, Facebook users were upset with Facebook for affiliating certain friends to various promoted products and/or services.  Facebook claimed “no commercial interest” in users’ identities or likenesses.  Additionally, the court found “no cognizable harm or injury” caused by the Friend Finder, and the case was ultimately dismissed (Weiss, 9).

Friend Finder, Image taken from Google.com.

Friend Finder, Image taken from Google.com.

Facial recognition systems have become a prominent tool among advertisers, especially in the retail marketplace.  Weiss references the “EyeSee Mannequin,” an electronic mannequin used in Italy in cooperation with a mobile app used to track consumers movements and preferences in-store.  With the constant advancement of technologies everywhere, facial recognition is a technique that will only be utilized more frequently in the future.

"EyeSee Mannequin", Image from Google.com.

“EyeSee Mannequin”, Image from Google.com.

Defining the value of uploaded photographs is an arduous process, even for today’s media theorists.  Weiss references yet another court case, PhoneDog Vs. Noah Kravitz, which occurred in 2011.  Kravitz attempted to remain in control of PhoneDog’s company twitter account following his dismissal from the company.  After eight months of tweeting what PhoneDog considered to be “damaging” to the company, Kravitz was sued by his employer and an attempt was made to calculate a monetary charge.  The case was ultimately dismissed due to the fact that each part of the generic Twitter account has a different value that cannot be calculated.  The number of followers, favorites, re-tweets, as well as the content of each individual tweet all hold different values that are far too subjective to compute.  As we have discussed both in class and within our course readings, the economic value of “big data” is difficult to decipher.  However, new technologies are emerging in today’s rapidly advancing society, and both companies and advertisers hope to eventually be able to calculate and monetize the data of individuals for advertising purposes.

Weiss also examines the notion regarding personal photographs having a non-economic value. According to the Copyright act, a self-portrait uploaded on a social media site obtains protection as an original work of authorship. However, users of social media, particularly Facebook, permit the site to utilize their material when they sign up to use the site. In 1990, following the enactment of the Visual Artists Rights Act, artists of visual works were given the right to prevent their names from being linked to their work in “the event of distortion, mutilation or other modification of the work which would be prejudicial to his or her honor or reputation” (Weiss, 12). Unfortunately, this does not apply to your average social media user’s profile picture. The deletion of personal data also blurs the lines of ownership, as data is always being republished and never really disappears. Weiss discusses Pinterest as a success story, considering people “repin” photographs left and right, whether or not they are protected. Pinterest, interestingly enough, retains the rights to their content even if users delete their personal accounts.

Furthermore, a recent EU Proposal enacted in 2012, may affect US entities. In order for big data controllers to utilize material belonging to third parties for advertising, they must consult them first. Should this proposal extend to the US, various social media platforms would be swept into this, too.

Consent also has proven to be an overarching issue. Weiss examines Facebook’s changing Terms of Use which, from April to December of 2012, better explained to users that they agree to give Facebook “permission to use your name, profile picture, content and information in connection with commercial, sponsored or related content served or enhanced by [Facebook]” (Weiss, 14). While these terms may more clearly delineate to people what they sign away, consent is seemingly too difficult to clearly define and could be as simple as clicking “I Agree” when registering for the site. Many people also do not go to the lengths to thoroughly read these terms and so are uninformed of what they sign away. In the EU, however, under the aforementioned proposal, consent is clearly established as “any freely given specific, informed and explicit indication of the data subject’s wish to agree to process of his personal data, either by a statement or by a clear affirmative action” (Weiss, 14).

This naturally leads to Weiss’s discussion of consent to facial recognition. In the embedded image, Jackie’s Facebook provokes her to tag Victoria in the photo, as Facebook’s intelligent facial recognition system aims to automatically help users tag their friends easily. With Facebook’s acquisition of face.com, they made obvious their continued interest in facial recognition. The Federal Trade Commission’s report in October 2012 claimed companies must obtain permission from consumers if they wish to use facial recognition to identify them and further use their images for other purposes.

Personal screenshot taken by Jackie Widmann.

Personal screenshot taken by Jackie Widmann.

In the US, tag suggestions and facial recognition continue to be an integral part of marketing in the social commerce world as advertisers use “friends” likeness and images to promote their products and encourage people to purchase straight off social media site. Weiss concludes the future of social media shall continue to experience a convergence of technology and the physical world, especially where advertising is concerned.

Social Commerce Example, screenshot from Jackie's computer.

Social Commerce Example, screenshot from Jackie & Victoria’s computer.

Social Commerce Example, screenshot from Jackie's computer.

Social Commerce Example, screenshot from Jackie & Victoria’s computer.

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