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.