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Apartment-hunting site uses tweets in ads without permission


Lovely twitter ad

A telephone pole may not be an obvious medium for a tweet, but that's where Alex Wilhelm's ended up. Wilhelm is the business and political editor at The Next Web, and on July 12 he tweeted out "Getting a decent apartment in SF is like trying to bed a mormon while comically drunk. Nearly impossible." It could have stayed just another irreverent tweet floating through the ether of the Internet, but then it was grabbed up by apartment-hunting site, LiveLovely.com.

The company printed the tweet on a poster, paired it with the tagline "How far would you go?" and encouraged people to tweet about how hard it is to find an apartment in San Francisco using the hashtag #livelovelySF. The poster was slapped on telephone poles throughout the city.

Here's the thing: The company didn't ask Wilhelm's permission.

Wilhelm confirmed in an email that the company didn't ask his permission, but that he wasn't mad. "They owe me a beer for not asking, though," he wrote. Fair enough: The poster also promises a chance to win a keg of 21st Amendment. (Read more on his take on the incident here.)

Lovely also snagged a tweet from Jeff Elder, the marketing director at Storify.

Wilhelm contacted Lovely to ask about the campaign after The Bay Citizen notified him about the poster. Community and marketing intern Eliza Dropkin responded in an email that she had cooked up the "Twitter guerrilla campaign with the goal of getting a conversation started on Twitter based on the idea that everyone knows apartment hunting in SF is absurd." She then encouraged him to help the company advertise: "It would be great if you'd Tweet/Facebook/share this photo or any you have with your friends to help the campaign grow."

Marketing and community lead of Lovely, Joel Goyette, said there was discussion over whether to ask permission to use the tweets, but that in the end the company decided they were fair game because they were posted in a public forum.

What if someone saw their tweet on a poster and got angry?

"At the end of the day, the intention is just to acknowledge the pain of apartment hunting in San Francisco and in the case of folks who are uncomfortable with having tweets up, we'll take them down and stop using them," he said, "We mean no disrespect."

Goyette also said that he didn't think the ads implied endorsement on behalf of the individuals because the company made the "conscious decision not to include our website or our name" on the posters.

Twitter declined to comment on this specific incident, but spokeswoman Carolyn Penner pointed to a company policy that reads:

Using Twitter Content. Get the users' permission before:

• using their content on a commercial durable good or product (for example, using a Tweet on a t-shirt or a poster or making a book based on someone's Tweets);

• creating an advertisement that implies the sponsorship or endorsement on behalf of the user; or

• using content in a manner that is inconsistent with the Display Guidelines and would require the user’s permission under applicable law.

Of course, Twitter can always use your tweet in an ad if it chooses to. It's in the terms of services: "you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)."

So what legal recourse do Twitter users have if their tweets show up in an advertisement?

According to Jennifer Granick, director of civil liberties at Stanford Law School's Center of Internet and Society, Twitter users own their tweets, and that means they retain copyright.

"Tweeters could argue that their copyright was put on fliers and distributed without their permission," Granick said.

Then there's the law of publicity. In California, individuals have rights that say they control how their image and name is used when it comes to sponsorship and commerce, and it could be argued that a Twitter handle is the same as a name.

"I don't know whether it would violate the right of publicity," Granick said. "But there's an argument to be made."

In the meantime, it seems that Lovely's use of tweets may become a nonissue. Goyette said the company planned to stop putting the posters up after a few days anyway, and Dropkin said the campaign had hit an unexpected speed bump: People were tearing the posters down just about as fast as she could get them up.

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