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Could Using a Hashtag Give a Company Royalty-Free Rights to Your Photos?

May 19, 2021

By Hillary K. Grigonis

Depositphotos

Hashtags do everything, from making posts searchable to entering photo contests. But could using a hashtag give a company royalty-free rights to a photograph? A newly launched photo club by the Museum of Modern Art is raising that very question and some concern among photographers.

This month, the museum launched the MoMA Photo Club. The club is inspired by an exhibition of amateur photographers in Fotoclubismo: Brazilian Modernist Photograph, 1946-1964. The MoMA Photo Club offers monthly themes and invites photographers to participate by using the #MoMAPhotoClub hashtag on Instagram. The club, MoMA says, “embraces this collegial, competitive spirit, connecting all of us with the achievements of amateurs across the history of photography.”

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Some photographers, however, are concerned—not with the goal of the MoMA Photo Club, but with the fine print. In a clause on the webpage describing the contest, MoMA includes the following legal statement:

“By tagging photos using #MoMAPhotoClub, you grant The Museum of Modern Art (“MoMA”) (and those authorized by MoMA) a royalty-free, worldwide, perpetual, sublicensable, non-exclusive license to publicly display, distribute, reproduce, and create derivative works of such photos, in whole or in part (including, but not limited to, any associated captions and handles), in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion, and inclusion on MoMA’s website and social media channels.”

The Photo Club webpage says that MoMA will feature some images on their website and on screens inside New York City Subways. Photo contests and clubs will regularly share participants work. But, the legal statement goes much further, claiming the right to sublicense the image, share it worldwide, produce and distribute “for any purpose.” The clause has caused some photographers to express concern over a rights grab.

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A hashtag, however, isn’t the same as signing a legal document. “Use of a hashtag could grant permission under some circumstances if there was another agreement in place. But under most circumstances, including here, it probably doesn’t,” James Grimmelmann, a professor of digital and information law at Cornell, tells us. “Would a reasonable photographer who posts a photograph using the hashtag have reason to know that MoMA intends these terms to apply? Probably not. Nor would MoMA have a reasonable basis to think that any given photograph was posted with the intent to grant this permission.”

Grimmelmann says that the clause is unnecessarily broad. “The terms are also broader than what MoMA needs for the uses it wants to make of the photographs,” he further explains. “It would have been better off sticking with the uses it described in the Instagram post; that was simple and clear: ‘It will be used on the website and on subway screens.’”

The bottom line? Whether you take photos on a camera or your phone, are an amateur or a pro, it always pays to read the fine print.