Viral creator Krissy & the Dunkin Ducks is using her platform to call out PetSmart for allegedly using an image she posted on Instagram without her permission.
Krissy is well known on TikTok (@dunkin.ducks)—with about 5 million followers—for posting cute videos about her pet ducks. In a video posted Wednesday, she strayed from her usual content to explain what was happening with the pet store.
“Hey PetSmart, I honestly did not want to have to make this video, but unfortunately, I feel like I have no other choice because it seems as though your legal team has stopped responding to me. And my other attempts at getting in touch with you have been unsuccessful so let’s just get right into it and air the dirty laundry,” Krissy says in the video.
@dunkin.ducks @PetSmart You CAN do better. #PetSmart ♬ original sound – The Quack House
The TikToker claims that PetSmart screenshotted a photo she posted on Instagram in September. Then, it allegedly used the image to market a product. Krissy says the store never contacted her for permission to use the photo, and she never granted it to them.
Using that content in ads implies endorsement, to which the creator never agreed.
Krissy explains that she makes money by creating social media content and sometimes selling rights or authorization to use her content to businesses or companies. In this case, there was no sale or authorization involved, so Krissy says she contacted PetSmart to request that they pay her.
In the video, the TikToker shares a screenshot of an email that PetSmart allegedly sent her.
“We have completed our investigation of this matter. PetSmart announced the opportunity for pet parents to be featured in our Instagram handle by tagging @PetSmart,” the screenshot reads. “It appears that @dunkin.ducks shared the work and tagged @PetSmart. As such, upon proper authorization of the work by @dunkin.ducks, there is no copyright infringement here.”
The “bottom line” according to Krissy is that tagging a brand on Instagram does not authorize them in any way to use that content.
“In order for a contract to be legally binding, both parties must agree to it,” Krissy says. “And in this case, we have no idea if the people whose photographs they’re using have even seen this ‘announcement.’ I never gave PetSmart permission to use my photograph, but there response to me shows me that they don’t care whether you’re a content creator or just someone posting a photo of your dog on Instagram and tagging them.”
Krissy adds that when businesses or companies want to use someone else’s photo, they reach out to the content creator and ask. Then the creator can either approve or decline them. She points out that PetSmart is a Fortune 500 company.
“I am not the first person this has happened to. I’ve seen them get called out for it before, and unfortunately, it seems like nothing has changed,” Krissy says.
The TikToker says she chose to share her story publicly so that PetSmart might learn to “at the very least” ask content creators for permission to use their content. And maybe even offer compensation.
So can PetSmart use content that participates in its tagging challenge via Instagram?
The Daily Dot was unable to find this contest’s terms of service. However, just because a photo is posted on Instagram does not mean that it can’t be copyrighted. It is common for professional, licensed photos posted to IG by celebrities to wind up embedded on websites—and for said websites to face a copyright lawsuit as a result.
The so-called “server test” has been rejected by courts in recent years too. Even amid news organizations. As Reuters reported last year: “In a dispute over a video of a starving polar bear, a Manhattan federal court on Friday rejected Sinclair Broadcasting’s argument that it and its affiliates couldn’t have infringed the copyright in Paul Nicklen’s video because they only embedded it on their websites from Instagram or Facebook.”
Many of Krissy’s followers urged her to pursue legal action against PetSmart if she isn’t already.
“Contact a lawyer you might have a lawsuit,” one viewer commented.
“I hope the lawyer you contacted is able to help you. This is wrong,” another viewer commented.
Multiple others tagged PetSmart’s TikTok account and admonished the store for ripping Krissy off.
“@petsmart at least get permission,” one user said.
“@petsmart at least get permission,” a second user said.
A third wrote, “@PetSmart I’m never buying from you again unless you make this right.”
One viewer asked, “Genuinely interested, where is this “announcement” that PetSmart is referring to?”
Krissy replied to the comment, saying, “They actually never told me where it is.”
The Daily Dot reached out to the creator via TikTok comment and to PetSmart via email.
