Facebook and rights to images

Hello PN,

 

In Sweden there has lately been a ruckus about the rights to photographs posted

to facebook. I did not find any older comments on that here, so, just as a

notice observe the following lines in the user agreement from facebook:

 

"When you post User Content to the Site, you authorize and direct us to make

such copies thereof as we deem necessary in order to facilitate the posting and

storage of the User Content on the Site. By posting User Content to any part of

the Site, you automatically grant, and you represent and warrant that you have

the right to grant, to the Company an irrevocable, perpetual, non-exclusive,

transferable, fully paid, worldwide license (with the right to sublicense) to

use, copy, publicly perform, publicly display, reformat, translate, excerpt (in

whole or in part) and distribute such User Content for any purpose on or in

connection with the Site or the promotion thereof, to prepare derivative works

of, or incorporate into other works, such User Content, and to grant and

authorize sublicenses of the foregoing. You may remove your User Content from

the Site at any time. If you choose to remove your User Content, the license

granted above will automatically expire, however you acknowledge that the

Company may retain archived copies of your User Content."

 

I know most of you will be careful with posting your good images anywhere, but

as discussed in the wedding forum, your customers may not be.

 

In short, as long as your photos are posted on facebook, facebook may use and

sell them in which ever way they want to. If the pictures are removed from

facebook this right is revoked.

 

They do state in their privacy policy that they will not use the images for

anything else than running the website, but you should be aware that it is the

license agreement that is legally binding, not their policy document. Further

they retain the right to change the license at any time.

 

My reading of the above leads to two conclusions:

 

1. Do not post images on facebook.

 

2. Tell your customers not to post your images to facebook.

 

I am sorry about the rambling message, but I think a discussion about this is in

order. Do photographers need to be warned and do customers need to be restricted

from posting to very popular sites such as facebook?

 

Yours,

 

Michael

How to possibly use this to your advantage? Create a set of iamges for your clients to specifically post to Facebook, etc. that includes a watermark with your name or studio name in it.

<i>In short, as long as your photos are posted on facebook, facebook may use and sell them in which ever way they want to. </i><p>This is not a correct conclusion based on the terms. If read carefully, which doesn't seem to have been the case here, it says it can only be done in connection with the site or promotion of the site. In particular, they have no rights to sell images to anyone. It's posts like this that create all sorts of bogus rumors on the internet.

Jeff, there's pretty big loophole in their language which allows them license work posted on Facebook to third (or fourth) parties. To wit:<P><I>to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. </I><P>So I think some caution is warranted.

There is a serious issue if they were sold, as the license ends with the user taking images off the site. If they sold it, they would have to revoke the license as soon as the images were removed from the site, and there is no way they could implement that. The "loophole" would be a problem if they retained permanent rights to the images, but as it is, all sorts of problems would erupt if they sold the images, based on the language in the Facebook license.

Facebook can't sell the rights to the images, for one reason because they have no record of releases (which they would need to protect themselves if images were sold to a 3rd paty), and for another as Jeff pointed out, they give up the rights if the images are removed. If you read it carefully the terms of use are very similar to those of photo.net, i.e. the site has the right to use the images in conjunction with the site.

 

Usage is restricted to "...any purpose on or in connection with the Site or the promotion thereof...".

 

Facebook's usage rights are perfectly normal for any web site of that type and they are not designed to enable them to "steal your images".

 

There may be lot of good reasons not to use Facebook, but I don't think this is one of them.

Bob - I'm not sure they'd be bothered by the lack of releases as they've possibly passed responsibility for this to the contributor with this:

 

"you represent and warrant that you have the right to grant....irrevocable etc"

 

Effectively this could be interpreted as meaning that anyone submitting images is agreeing that they have the right to do so (ie they have the releases that allow facebook to do whatever it is they intend within their rules).

 

I could be wrong, but that's one interpretation.

This is pretty standard boilerplate for the industry. DeviantArt and pretty much everyone else says the same thing. The legal language in these is a porblem that needs to be solved as it leads to alot of lost members for these sites every time it comes up.

I did try to read it carefully and then posted. The passage Jeff refers to ("...for any purpose on or in connection with the Site or the promotion thereof..." I presume)is however in the middle of a sentence. Does the rest of the sentence come under that clause, or may facebook:

 

"...prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing", no matter in what contex?

 

Further, record of release is needed in different situations in different countries. In Sweden, having a licence like this will allow you to publish the pictures in any journal, newspaper or such under the freedom of the press act without any release. You will however need a release from the models to use it in advertisement. Any pictures not including identifiable persons does not need any such treatment in Sweden. The copyright as written in Sweden is practically irrevocable, especially for individuals against corporations, but it provides very slim rights. The expertise here is arguing for not submitting pictures without additional signs of copyright and even then they add that "it will have to be tried before we know for certain". Some of these points may be very clear cut being an american and working in america, but an additional level of insecurity is added when you are not. As is the case for a large number of photo.net users (not to mention facebook users).

 

I also think that a third party having bought the pictures legally, while facebook had the licence to the pictures, may very well be entitled to continued use even if facebook lost the right to sell the pictures at a future time-point.

 

I agree that some lines are similar to standard licenses but in comparison with the relevant lines in the photo.net license:

 

"You retain copyright to images and text uploaded to photo.net. By submitting material, however, you grant photo.net and its successors or assigns a perpetual non-exclusive world-wide royalty-free license to publish that material on the World Wide Web as part of the photo.net web site. You grant Us the right to edit, modify, quote, or reformat uploaded images and text, including the right to include advertisements and hyperlinks. You grant other readers the right to quote your material in their own postings on the Site", some important words are different.

 

Note in particluar the absence of "transferrable", "with the right to sublicense" and "prepare derivative works of" in the license to photo.net and the repeated use of "quote". Whearas photo.net recieves the right to "publish that material on the World Wide Web as part of the photo.net web site", facebook gets to "use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof", in addition to the loop-hole for sublicensing.

 

Further for professional photographers there is the additional problem of having photos being used by a large multinational company that would otherwise have paid handsomely for pictures for example for use in advertising.

 

Finally I don't think the starting of this discussion is frivolous. The reading of the license has already produced several news paper articles and diverse official statements and interpretations over here. While I do not say that news papers over here are any less prone to error than in other places, the lively discussion is a sign that the license situation is not clear and that it warrants discussion.

 

Again I am sorry for a rather lengthy post, but there are some points that would benefit from clarification.

 

Yours,

 

Michael

As a further note, DeviantArt has been cited as another site with a too wide inclusion of rights in the license. Importantly the point 3D "the right to sublicense to any other person or company any of the licensed rights in the Artist Materials, or any part of them, subject to the terms and conditions of this Agreement." and 3E "[the] Artist acknowledges that Artist will not have any right, title, or interest in any other materials with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated." This has been interpreted as that once your material has been used in a deriviative you have no rights to said derivative and it will remain in deviantarts hands even after you end the license by removing your material.

 

As an example of a better license the Yahoo! license has been put forward. It includes the setting : "solely for the purpose for which such Content was submitted or made available", which is considered more clear. A similar clause is included in the google license for among other things Picasa and the web album. Importantly the clause about sub-licensing is not included in either the Yahoo! or the Google license (or in the photo.net license).

 

That is I have two further points: Just because it is a standard way to write does not mean you retain your rights, and there are better ways of expressing the license if the company has no plans on using the material for other purposes.

 

Yours,

 

Michael

<i>I also think that a third party having bought the pictures legally, while facebook had the licence to the pictures, may very well be entitled to continued use even if facebook lost the right to sell the pictures at a future time-point.</i><p>Facebook cannot license rights it doesn't have. In other words, it can't license anything for longer than it is on Facebook, which is an unknown period of time. Once again, Facebook cannot license rights it doesn't have. Period.

Where are all the attornies that must frequent this site!?

I'm not too clear on what they can and can not do, but can you post links to photos on another site such as Flickr or a site you host yourself? They can't possibly have the right to do what they please with those photos if it's not on their server. Then again I don't know if you can post links to photos or not on Facebook. Just a thought though.

PS - I'm not sure if anyone has noticed this, but facebook compresses images to the point

that prints made from such images would be complete garbage.

 

Also, think about this: millions of facebook profiles, each profile has multiple "albums"

each album can hold up to 60 photos. That's A LOT of pictures on facebook. The majority

of them (and I mean probably 98-99%) are not photos anyone would want to buy for stock

photos (or what ever your worried about your images being used for). It's not like facebook

has an office full of people going on to each and every profile going through each photo

and selecting the one out of every 100 or even 1000 photos to put in a file of acceptable

photos that could then be sold for ? ? stock photos? ? advertising? ?

 

Micheal, I'm curious what exactly you're worried about?

Probably not much, considering four months have past.

<p>There are content distribution sites doing the same thing. And big software companies. Two prime examples are <strong>Pixelpipe</strong> and <strong>Adobe.</strong> *<br>

Read <strong>Pixelpipe.com</strong> 's Terms and Conditions <a href="http://pixelpipe.com/terms">here</a> and remember: they aren't working with vacation photos so compressed they are "garbage". Pixelpipe is, in their own words "a content distribution gateway that allows users to publish text and upload photos, video and audio files once through Pixelpipe and have the content distributed across over 60 social networks, photo/video sites and blogs, and other online destinations." **<br>

The CEO of <strong>Pixelpipe</strong> told me their legal team says the wording in their TAC is necessary in order to redistribute content for people, and that " Believe me, we're not interested in owning your content just publishing and redistributing on your behalf." I have no doubt that they aren't looking to steal my stuff, but why should I take a chance like that? And why should they be allowed to retain copies of my Content "indefinitely"?<br>

<strong>Adobe</strong> recently (2008) changed their TAC for <strong>Photoshop Express</strong> to do the same thing. Plus they added a bit about deriving revenue from User Content without remuneration. Read it <a href="https://www.photoshop.com/express/terms.html">here</a> .<br>

As a matter of fact, I Googled the offensive terms <em>"intellectual property" "terms and conditions" website derivative</em> and many many sites came up. (780,000 hits, most of them site with Terms such as Pixelpipe and Facebook). <strong>Pixelpipe</strong> worries me because they deal exclusively in people's intellectual property. <em>And because I almost registered with them without reading the TAC.</em><br>

Not all websites have these terms, however. <strong>Wordpress</strong> doesn't, for example. Neither does <strong>Shutterchance</strong> .<br>

What's the point of all this? Simple.<br>

READ THE TERMS AND CONDITIONS CAREFULLY OF ANY WEBSITE YOU WANT TO UPLOAD YOUR IMAGES TO!<br>

Michael, I am with you. So are a lot of other folks. <a href="http://www.bogusartfair.info/realunfavourable">BogusArtFair.info</a> , <a href="http://keepyourcopyrights.org/contracts/clauses/by-type/2/unfriendly">KeepYourCopyrights.com</a> and <a href="http://www.drizzten.com/blog/2003/10/licensewary_and_weary.html">Magnifisyncopathological</a> are just a few.<br>

<br /> *In order to not violate anyone's Terems of Use, I am providing links to the two companies TAC pages so you can read the troublesome language for yourself.<br>

**©Pixelpipe 2008</p>