What’s Wrong with Image Copyrights on Social Media Sites

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.

10 comments for this post.

  1. Jim Bullard Said:

    And then there's Google who wants to put every book in the world on-line for free. If you post photos to their photo sharing site, Picasaweb, those photos are already available. Try it. Pick a photo, anyone's photo, and click on "Print". You can then choose to have it printed for you by your choice of commercial printing services; LifePics Network of Local Photofinishers, Printed Art, fotoflōt, Ritzpix, Snapfish, Shutterfly, or Walgreens. So far as I can determine they don't even notify you as the owner that copies of your photo have been sold, much less share the proceeds.

  2. Pele Leung Said:

    The solution is simple - put small size photos on those sites such as 640x427 or even 512x342. In most situations, this is good enough especially on Facebook. For such a small size, there isn't much value for anyone to steal an image for commercial purpose.

  3. Linda Said:

    I see it this way. It's my responsibility to place a huge watermark through the middle of a image or video every time I post a image or video on the Internet regardless of the website otherwise you are vulnerable to the issue of theft! Conditions or no conditions it's theft!

  4. Scott Said:

    Since Facebook has the right to re-license our images and there is a 'Download' button next to the images (which we can not opt out of) what rights does an individual have if they download one of the images with the 'Download' button.

    I am aware of the resolution images. I have an image that I have found on over 30 websites around the world. One person took it (not from Facebook since I don't upload images there) and others took it from them and the cycle continues.

    Now I am unable to sell that image as exclusive. The damage has been done. All of that from a low res image posted on a blog.

    So my question is - what are people allowed to do with our images once they 'legally' download them from Facebook?

  5. Laurie Young Said:

    I'm seeing more and more cases of image theft. I think a huge part of the problem is that there is no simple way for most users to sell their photo. If I take a photo of some newsworthy event, how can I easily put make that photo sellable?

    It's one thing if its an amazing exclusive worthy photo, but many photos used (especially by news sites) are not amazing. They are ordinary photos that the photographer is not going to spend time trying to sell to agencies etc

  6. Joyce, Photography Assistant Said:

    Facebook,Twitter and other forms of social networking are great ways to express and share ideas. Ideas can be in the form of words or photos and people using these social networking sites should realize that there is always a sense of responsibility connected to whatever idea one may want to share and there is also a sense of responsibility for those who are viewing or reading the shared ideas.

  7. Ryan Said:

    This issue worries me far more in relation to Internet dating sites; particularly those which tend to have nudity in their photo libraries. You often find on joining one such site that 'membership' is shared amongst several sites. You might join slightlynaughty.com and find your profile is instantly on verynaughty.com and evennaughtier.com, and in adverts on your parents' browser.

  8. Vivika Said:

    I will be watermarking all my images from now on and downsizing everything before I upload anything to Facebook anymore, as I was not aware of this.
    The extra step is worth it.
    This is very good information to know.

  9. CyberGus Said:

    If you have a fan page on Facebook, try not to upload there your work, instead connect a third party app or site to post your links (or do it manually), so people will see your photos in your portfolio or any other trusted site you use to share your work. Then you have the best of both.

  10. Hugo Chikamori Said:

    I would be very hesitant of even putting up links on Facebook even with them going back to the old TOS.

    For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

    You see the words: "in connection with". That gives them a rights grab on anything you post on Facebook up to and including blog-links. When you post a link on Facebook, you have "posted on" and the link content is published "in connection with" Facebook's internet protocol thereby allowing them to sneak in and grab any content on the posted link. Confirm it with a lawyer, but that means I'm out as far as posting any content or links. I will not be putting any of my stock photography on Facebook. If they want to see them, they can go to my blog.

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