Facebook Claims Right to Create Derivative Works from Members’ Photos


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Install a piece of software or register at a website and there’s a good chance that you’ll be asked to click a button saying that you’ve read and agreed to the service’s terms and conditions.

There’s an equally good chance that you’ll click that button without even looking at those terms.

That’s understandable. The terms page is usually long, dull and written in legalese. It rarely contains anything of interest and we usually feel that we can trust the companies not to slip in anything to which we wouldn’t agree.

If you’re thinking of uploading images — or anything else — to Facebook though, that would be wrong.

Facebook Could “Use its Members’ Images as a Stock Library if it Wanted”
In a section marked “User Content Posted On The Site,” Facebook’s terms state the following (the emphasis is ours):

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, commercial, advertising, or otherwise, 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.

The first part of the clause concerned us. We wondered whether photographers on Facebook would mind their images being used to promote the site. But it was the second part — the part that mentioned derivative works and which came after the reference to Facebook’s promotion — that really made us worried. So we asked two lawyers who specialize in photography to explain what the clause allows.

Carolyn Wright, a photographer, attorney and author of the Photographer’s Legal Guide told us:

“It’s either poorly written or written in a way to allow Facebook (or its licensees) to prepare derivative works of, or incorporate into other works, the User Content without the limitation of promotion of Facebook.”

Bert Krages, an attorney and author of several books about photography including the Legal Handbook for Photographers, went even further:

“This is a very broad provision. While arguably it is written this way so that Facebook can use content in promotional ways without fear of liability, the clause is written in such a way that Facebook could use the images as a stock photo library if it wanted. The clause explicitly allows Facebook to create derivative works.”

When we wrote to Facebook to ask whether the site had intended to grant itself a license to create derivative works, whether it had in fact done so and whether it had ever used user content to promote itself, a spokesperson referred us to the company’s press images and gave us this one-sentence reply:

“Facebook does not use user content to promote itself, as that would be a violation of user privacy.”

Perhaps, but it doesn’t address the issue of derivative works and a follow-up email has yet to be answered.

For Sale: Your Images on Facebook?
So what could Facebook do with its members’ photos?

According to Bert Krages, “[a] derivative is any work based on a preexisting work. Any change to a preexisting [work] will create a derivative work.” In theory then, the phrasing of Facebook’s terms allow it to take any images that you’ve uploaded to the site, alter them slightly and start selling licenses for other people to use them.

So if you had uploaded a picture of a house, for example, Facebook would be able to change the color of the walls, put the image on a stock site and pocket the license fee. Facebook wouldn’t need to inform you and it certainly wouldn’t need to pay you. As for permission, you supplied that when you clicked the “agree” button on registration.

In practice, of course, things might be a little harder. We’ve found no evidence that Facebook has actually created any derivative works from user content and it’s likely that if that were to happen, the loss of trust in the site — and the loss of members too — would outweigh any benefits that the site might gain.

That might suggest that Facebook’s right to create derivative works is more likely to be the result of sloppy legal writing than any intent to actually use uploaded content. The result though is still worrying for any photographer considering uploading images to the site.

And the site’s right to use images to promote itself was certainly intentional, nor is this right limited to Facebook. Flickr’s terms, for example, which are Yahoo! Groups’ terms, claims the same right and Patrick Ross of the Copyright Alliance, a lobby group, referred us to YouTube’s terms, which do the same.

Both of those sites though restrict the use of submitted content to promotional purposes. As far as we’re aware, only Facebook grants itself an unrestricted right to create derivative works from your content — including your images.

[tags] facebook, facebook tos, facebook terms of service [/tags]


14 comments for this post.

  1. liz Said:

    I have literally thousands of photos on my pbase site of local high school kids, mostly sports action and some from dances. I make them available because I enjoy taking them and the kids and coaches love them. I have chosen not to market the sports action shots because the amount of time and effort involved in selling them is not worth the limited amount of money I have been able to make. These pictures are all over facebook as well as scans of senior portraits that I have taken professionally. I have never given anyone permission to put these photos on facebook although I know they are on there and the kids know that I know they are on there (my own kids included). It looks like these mostly under-eighteen kids have agreed that they are legally able to post these photos, even though they are not. I am not too worried about facebook using my photos for any purpose, but I wonder what kind of action I would be able to take if they did.

  2. zach Said:

    Considering the resolution of facebook photos, I can't see anyone making much money out of them.

  3. Ed O'Keeffe Said:

    There was a facebook group about this, I have photos of myself on the website but none of my professional photography. Flickr is OK right?

  4. Ads Said:

    zach are you kidding me, most uses on the web are at spot resolution.

  5. David Sawchak Said:

    For any photo with a recognizable person, I believe a release signed by the model is required for commercial endorsement-type use, and for anyone under 18 (or who looks like they might be) I'm almost positive one is required. This seems like it would severely hinder Facebook's use of photos consisting people's faces. However I, like several other photographers, post a few shots without people on Facebook. I suppose I'll have to start watermarking them.

  6. StMarc Said:

    Mr. Sawchak is right that in most US jurisdictions, some kind of release is required for many kinds of image exploitation.

    However, at least for pictures of the Facebook user themselves, a strong argument could be made that the ToS comprises not only an unlimited copyright license, but a likeness release. It wouldn't apply to the other people in the photo, but there's a catch... if Facebook uses the photo and is sued for failure to obtain likeness rights, they might be able to subrogate their liability to the Facebook user, because they warranted that Facebook could do whatever they wanted with the image!

    That's a long stretch, and I don't know of any court decisions which go that far, but logically it makes perfect sense. If a photographer submitted to a "real" stock site and claimed the images were clear for any use, but didn't have releases, clients would quite reasonably be peeved if it turned out there were no likeness rights releases.

    M

  7. P Salisbury Said:

    As a professional photographer, I find this kind of behaviour by companies like Facebook to be nothing more than legalised theft. They know exactly what they are doing when they phrase their terms and conditions. In a world where intellectual property rights are being taken more seriously, they should know better. It seems these companies are only there for their own benefit, and don't really care about the customers they depend on. Surely it's time for some sort of ethical shake-up.

  8. A. Soto Said:

    And of course, they are not the only company doing such a thing. After a short period using Zooomr I decided to read the terms of service and you can find exactly the same paragraph, word by word, in those. Though it continues telling that if you remove the pictures from the web, the licence will automatically expire, so I did it.

    Good luck to all those poor zooomr users if the company decide to open a little stock brother one.

  9. Renae Said:

    So, to get around this legal matter, only upload photos that have been resized for the web and at a very low resolution.

    72 dpi is sufficient for good quality on the web and a 600 x 400 pixel size won't really be good for anything. Even smaller would be better for us. Most of my photos are a whopping 25 to 50 KB in size. Not good enough for anything but web viewing.

    I don't think that there will be much altering, reproducing or selling of my photos from Facebook or Flickr. Not without asking me for the original 2 MB file, which they won't get without paying me first. :)

  10. Embassy Pro books Said:

    Facebook could easily launch a whole new business from this. I wonder if they will ever try it?

  11. Michael Said:

    As a divorcee, do I have any right to stop my ex-wife putting photos of my kids on facebook?

  12. dana richardson Said:

    there are new developments in this area as of today...

    http://apps.facebook.com/fbsitevote/contests/208?_fb_fromhash=87f77acaecd393b667de8bf3ac65e6f7
    ......

    three times in the last month i have written notes to the editors of major Canadian Daily newspapers complaining about the use of facebook as a photo service...
    ......

  13. Erika Said:

    Would anyone know if this applies to tagged photo's too, ie, if a photo I own is tagged, therefore it appears in a friends' FB account, but say they haven't changed their selection re.FB ADS, even though I've changed it in my FB account; can FB still use that photo then?
    A message is being passed around my friends
    "To ALL FRIENDS. Please pass this around! Facebook has agreed to let a third party advertiser use your posted pictures without your permission. Click on SETTINGS up at the top where you see the log out link. Select PRIVACY - MANAGE. Select NEWS FEEDS AND WALL. Select the tab that reads FACE BOOK ADS. There is a drop down box, select NO ONE."
    I haven't found anything on the web as yet stating that FB have a 3rd party advertiser, but at least this making us aware that our photo's & video's are available to them should they wish to use the unless we change the setting in our account.

  14. Charlie Morey Said:

    Interesting linkage of factoids, but is there any evidence of Facebook actually using our photos for anything (aside from displaying them on our pages and those of our friends)?

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