Three years ago, we noticed a clause in Facebook’s terms and conditions that worried us. The clause appeared to grant Facebook the right to create derivative works out of members’ images, to license members’ photos and even to transfer the rights it claims over those pictures to others. We alerted Bert Krages, a legal expert who specializes in the laws relating to photography, and he confirmed our suspicions. Facebook’s terms did indeed allow the social media site to do pretty much anything it wanted with the pictures uploaded to the site. In fact, Krages told us, the clause was written in such a way that Facebook could even build a stock library out of its members’ contributions if it wanted. That was three years ago. Things have changed and Facebook has updated its terms. That clause though, and the rights it grants to Facebook, remain.
Facebook isn’t the only site to place its hand on the intellectual property owned by its users. TwitPic’s recent kerfuffle over copyright ended in a muddle with the photo-sharing service declaring clearly that users “retain all ownership rights to Content uploaded to Twitpic.” But echoing Facebook’s rights grab, the terms then go on to state that:
“by submitting Content to Twitpic, you hereby grant Twitpic 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 Twitpic’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.”
Other publishers who wish to use content posted on Twitpic “for any commercial purpose or for distribution… whether online, in print publication, television, or any other format,” are informed that they must obtain permission from and provide credit to… Twitpic. It’s as though the photographer — the same person that Twitpic has said owns the copyright — just doesn’t exist.
What’s Yours is Yours
Twitter, at least, was a little smarter. When the microblogging company announced that it would allow the incorporation of images into tweets using Photobucket’s servers, it made clear that Twitter’s users owned those photos. As company representative Sean Garrett put it in response to someone who had wondered whether Twitter would claim the right to sell their photos:
“You own your tweets and photos will be part of your tweets.”
When it was pointed out that Photobucket’s terms aren’t quite so clear and, like Facebook and Twitpic, allow the site a broad freedom to republish users’ images, Garrett repeated that as far as Twitter is concerned, users’ property remains users’ property.
“I work for Twitter and am telling you how we will apply rights for photos (that happen to be hosted by Photobucket).”
None of this is to say that Facebook, Twitpic and Photobucket have a secret plan to steal and resell their members’ photos. Facebook might have the legal right to set up a stock library but in the three years since we noticed that clause in its terms and conditions, it hasn’t done so and doesn’t appear to be planning to. Passing on user images might not be restricted by law but it is likely to result in a mass removal of content from the site, a more powerful penalty than anything a court would impose. The aim of the rights that social media sites claim over user images then is more likely to be the freedom to advertise their services and promote themselves. It’s their heavy-fisted approach, which gives them more rights than they need, that’s the problem.
Or rather, it’s one problem because although photo-sharing sites might be greedy with rights they don’t plan to use, at least they’re consistent in their approach to user content. That can’t be said of publishers.
When event planner Stefanie Gordon snapped a shot of the space shuttle Endeavour taking off during a flight over Florida recently, her image and video went viral. According to Mashable, some news organizations contacted her and asked if they could use her footage. She agreed, provided they gave her credit. CNN and NBC both did. The Washington Post and The St. Petersburg Times went further, paying Gordon $100 for each image they used. The Associated Press paid $500 plus royalties. But ABC News and CBS both used her video without any credit at all.
It’s possible that a court decision will now put an end to the worst of those abuses: the treatment of user images as a free resource. Photographer Daniel Morel had sued a number of news organizations that reprinted images he had taken of the aftermath of the Haiti earthquake. The pictures had been copied by Lisandro Suerto of the Dominican Republic who had sold them as his own to Agence France-Presse, Newsweek and other news agencies. The court dismissed Agence France-Presse’s argument that Morel had lost copyright exclusivity by sharing the images through Twitter, informing publishers that tweeted images are not fair game.
Twitter Should Copy Flickr’s Licensing Program
So there are two problems: on the one hand photo-sharing sites are claiming more rights than they need or want in poorly-written terms that spook contributors; on the other hand, publishers want to publish user images but are unclear about the rules that govern usage of images placed on the Web by members of the public who may or may not be willing to see them published. The best solution may be to adapt the way that Flickr sells stock licenses to social media’s editorial photos.
Flickr’s partnership with Getty allows publishers to license users’ images through the stock company. Once users have opted in, they don’t need to do any more than collect the royalties, while publishers are clear about Getty’s usage rules and payment terms. It’s not a great deal for photographers, who only receive 20 percent of the sales price and are probably better off selling their images themselves, but it is simple and clear for both sides.
Twitter (and Twitpic) could do something similar. Users could opt in to a licensing program, perhaps managed by a news agency, that allows publishers to reprint their images for a fee. News organizations that need to move fast would be able to get crowdsourced images quickly and from a source they know. Contributors could be sure that they’re getting the credit and payments they deserve. It’s not difficult to implement and the model already exists. All it would take is the will of Facebook, Twitter and their friends to put the program together and give photographers what they deserve.