Reality vs. Copyright Paranoia
...or: Why Facebook/Flickr/Twitpic/etc. Aren't Going to Steal Your Photographs
Lately I've been seeing more and more hysterical articles like 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:
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:
- They can show your image on their web site
- They can use your image to promote their service, even in other media (print, for example)
- Their affiliates can display the image
- They can sub-license rights to use your image
- They and their affiliates can create derivative works
- Their successors get all the above rights
- These rights apply as long as you have your image on their service and for a short while afterwards
- You don't get paid for any of this
- 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 giving "affiliates" all these 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.
#5 Creating derivative works? That covers making thumbnail images; obviously necessary for these services to operate. And #6 (about successors) just means they won't have to make everyone re-sign up if they merge or get bought by another company.
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. Though they might, in fact, have the right to do this (lawyers can argue over that!) they are extremely unlikely to try to sell rights to your work to others... and there's no way in hell a major company or agency will risk buying. Here's why:
REASON 1:
The TOS contract is only binding between the web service and you – and the web service has no
way of knowing if you are the true copyright owner of the image you uploaded.
You could grab a photo from my web site and upload it to your Flickr, Posterous, Facebook or Twitpic account. If they 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! (All the images on my web site are 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 or another on-line service. Once again, the on-line service may have permissions from the person who uploaded the image; they don't have permission from the most important person – the creator of the work (the copyright owner).
One can envision many other scenarios in which – innocently or maliciously – people upload photos for which they are not the legal owner. There are probably hundreds of thousands of images on Flickr alone that don't technically belong to the account holder who uploaded them. Flickr, for example, has smart, highly-paid lawyers who are aware of this and won't let them step into a potential minefield 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.) This applies to all the online photo-sharing sites: Because they can never be certain who the real copyright owner of any image is, they can't risk licensing images out.
REASON 2:
There's this thing called a "Model Release"
This applies only to photos that feature a recognizable human being, but that's probably the majority of the images that get posted online, and certainly to most of the ones that have the 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. I'm guessing you probably don't have a signed model release from anyone in your photographs; it's damned certain Facebook doesn't!
A few years ago an Australian cellphone provider forgot about the need for a model release. They're unlikely to do so again (and the rest of the corporate world probably took note).
Cut To The Chase
• Tons of photos on Facebook/Flickr/Twitpic/etc. don't belong to the person who uploaded them. And tons do. These services don't have anywhere near the resources (or the desire, in all likelihood) to do the copyright ownership research to find out which is which. So they can't license out images without taking huge risks with copyright infringement.
• Aside from copyright, commercial use of any images that include people requires a signed release from any recognizable persons in them.
Unless you're truly, clinically paranoid, all this should reassure you that these services aren't going to sneakily find a way to legally get your images for their own profit (other than the business of running photo-sharing web sites, that is!) But you may have a lot more to fear from people who illegally steal your work from these sites. But if that's a worry, you shouldn't put an image on the web at all.