Reality vs. Copyright Paranoia

Why Facebook/Flickr/Twitpic/etc. Aren’t Going to Steal Your Photographs

There has been much wringing of hands, tearing of hair and rending of garments over copyright issues, real and imagined, with hysterical articles like this and this about how Flickr (Yahoo), Facebook, Twitter or another social networking or image-sharing site is out to steal photographers’ work for their own commercial purposes. It’s time to throw the cold water of reality onto these brush fires of paranoia.

The cause for concern is Terms of Service (TOS) agreement you have to agree to when you open an account with one of these services. The TOS usually includes a statement approximately like this:

you hereby grant EvilCorporateSite a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and EvilCorporateSite’s and its successors’ and affiliates’ business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

These TOS agreements constitute a contract between the service provider (Flickr, Facebook, etc.) and the account holder (you). There are three things we need to examine here: What the legal gobbledygook means, why these terms are necessary and why you don’t need to worry.

1 – What It Means

Here’s a list. It’s not comprehensive, but it’ll give you the gist of things:

  1. They can show your image on their web site
  2. They can use your image to promote their service, even in other media (print, for example)
  3. Their affiliates can display the image
  4. They can sub-license rights to use your image
  5. They and their affiliates can create derivative works
  6. Their successors get all the above rights
  7. These rights apply as long as you have your image on their service and for a short while afterwards
  8. You don’t get paid for any of this
  9. These rights are non-exclusive, so you can use and profit from your image on your own

The ones that really scare people are usually those related to “sub-licensing” and to giving “affiliates” rights. But those are necessary because of the way the web works, as we’ll see in the second section, and they’re in fact nothing you need to worry about, as we’ll see in the third…

2 – Why These Terms Are Necessary

Well, #1 is self-evident: You want them to display your image because that’s why you uploaded it! #2 is pretty much a fair trade: You get a place to show your images and they can use a few in their promotion of the site.

#3 and #4 are basically the same thing and are necessary because services like Filckr and Twitpic usually don’t host the images shown on their sites. They are the host for the “operating system”, if you will, of their services, but the grunt work of serving the images is usually farmed out to companies like Akamai.net and Quantserve.com who specialize in this kind of thing and have the disk space, server and bandwidth capacity to do so. They’re called Content Delivery Networks (CDN’s) and are standard operating procedure on the ‘net these days. (And even a site that doesn’t currently use a CDN will want to reserve the right to do so later if the need arises.)

#5 Creating derivative works? That covers making thumbnail images, smaller and often cropped versions of your photo; obviously necessary for these services to operate. #6 (about successors) just means if they merge or get bought by another company they won’t have to make all their members sign up all over again.

When you remove an image from their system it can take time (possibly even a day or two) for it to propagate through all the databases and servers in their system, so #7 covers them in these circumstances.

3 – Why The Hysteria Is Unfounded

The right to sub-license your work to their “affiliates” scares people because it would seem to give Flickr et. al. the right to “affiliate” with, say, Coca-Cola or Toyota and sell them your work for worldwide advertising campaigns (without paying you). Though they might, in fact, have the right to do this (lawyers can argue over that) they are extremely unlikely to even attempt to sell rights to your work to anyone… and even if they tried there’s no way in hell a major corporation or agency would risk buying. Here’s why:

REASON 1:
The web service has no way of knowing if the person who uploaded the image is the copyright owner.

The TOS contract is only binding between the web service and the account holder (you)… and the web service has absolutely no way of knowing if said account holder is the copyright owner of the image that was uploaded or linked.

You could grab a photo from my web site and upload it to your Flickr, Posterous, Facebook or Twitpic account. (In fact, friends of mine have done so… and I have no wan of knowing if others have also.) If Facebook (or whoever) then licensed it to Coca-Cola, Toyota or anyone else… they’d be on the receiving end of a slam-dunk copyright infringement lawsuit from me! (EVERY image on my web site has its copyright registered with the U.S. Copyright office.)

Or imagine this: Someone snaps a photo with their cell phone and sends it to a friend, then that friend likes it so much he/she puts the photo onto Facebook and then several of his friends tweet it or post it on their Google+ accounts. Once again, each on-line service has permissions from the person who uploaded the image; none of them has permission from the most important person – the creator of the work (the copyright owner).

I have seen my own photos appearing on social networking sites without credit or permission.

One can envision many other scenarios in which people upload photos for which they are not the legal copyright owner:

  • Wedding photos
  • Bar and Bat Mitzvahs
  • Senior portraits
  • School photos

Whether by fraud, ignorance or simple mistake, there are probably hundreds of thousands, if not millions, of images on various sites that don’t technically belong to the account holder who uploaded them. Photo sharing sites have smart, highly-paid lawyers who, believe it or not, are aware of this fact. They won’t risk an expensive lawsuit by licensing photos for third-party commercial use. (And as long as they’ve registered a DMCA takedown address with the Copyright Office, Flickr is pretty safe from having the photos on line themselves.)

Photo-sharing and social media sites can never be certain who the real copyright owner of any image is, so they’d be taking an enormous risk if they tried licensing any images out. It would be a copyright-lawsuit version of Russian Roulette. For this reason the lawyers from third parties (Coca-Cola, Toyota, etc.) would be crazy to even let them think about licensing images from these sites.

REASON 2:
They can’t use photos of people without a Model Release

This has nothing to do with copyright and applies only to photos that feature a recognizable human being, but that’s a large percentage of the images that get posted online, and likely includes most of the ones that have high commercial value: In order to use an image for commercial purposes, you must have a signed release from any recognizable person(s) in that image. Moreover, it’s the publisher of the image who bears liability for use without a release. Flickr can’t even know for certain who the people in your photos are, and even if they did they’d have to get each one to sign a model release before they could sell any photos of them.

A few years ago an Australian cellphone provider forgot about the need for a model release. They are unlikely to do so again. Given how much attention the case received the rest of the corporate world probably got the message, too.

Cut To The Chase

• Tons of photos on Facebook/Flickr/Twitpic/etc. don’t belong to the person who uploaded them. And tons do. And online services can’t possibly research the copyright ownership of the images on their network to find out which is which. Therefore they can’t license out any images without taking huge risks with copyright infringement. It would be stepping into a copyright-lawsuit minefield.

• Copyright issues aside, they can’t make commercial use of any images that include people unless they have signed model releases from any recognizable persons in them.

OK, they might decide they want to take advantage and use someone’s image for their own gain and then go through the effort of confirming that the account holder really is the copyright owner of just that image (though I’m not sure how they’d do this to their lawyers’ satisfaction). But that’s pretty far fetched.

(Addendum, 2012 – To see an imagined scenario of how a sales attempt from Facebook/Twitter/Pinterest/etc. might go, read this post.)

Unless you’re truly, clinically paranoid, you should now realize that these services aren’t going to sneakily find a way to get legal rights to your images for their own profit (other than the business of running photo-sharing and social media web sites, that is) and take unfair advantage of it. Think about it: These sites need the goodwill of their participants in order to survive and that would disappear the first time they tried to license out anyone’s image. The real threat is from people who illegally grab and use your work from these sites! Have a look at this amazing example . There’s pretty much nothing (short of keeping all your images off the web) that you can do about them.

I have yet to see a single example of an online photo-sharing or social network service taking advantage of their TOS terms in the way people seem so afraid of. I don’t ever expect to see it. Now you know why.

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