Something for nothing

February 18, 2009 — Mike

Facebook,terms of service,ToS,copyright,license,photography,intellectual property

Recently Facebook decided to change their terms of service and have since been compelled to revert back to their previous terms after receiving a lot of negative press on those changes. I have somewhat mixed feelings about the entire process that they are working through and appreciate the efforts that they are making to come up with a solution that both protects the interests of both their company and their customers. With over 175 million users, they face a very difficult but vitally important process and depending on how Facebook deals with the issues, they could find their company as the forerunners in this new and complex legal ground. Or they could really botch it.

As a photographer, copyright and licensing issues are a constant consideration. From the moment of creation of a image, American photographers hold the copyright to that photograph which protects both our financial and our creative interests. By registering the copyright with the US LIbrary of Congress, those protections are further strengthened. While a photographer can give away the copyright, it is much more likely that money paid to a photographer (or any other creative for that matter) is for the license to use that photograph. Even when a physical print is sold to a customer, the owner of the print itself has no right to distribute or copy the image without the photographer’s content which is why when you bring your photos to Wal-Mart or any other processing center that you have to certify that you have permission to make a print.

So then, how does a social networking site fit in? And Facebook specifically? Every time a photograph is uploaded, permission is given to Facebook to license that image otherwise you are not allowed to proceed with the upload. It has to be this way because otherwise Facebook would potentially be opening itself to a lawsuit every time a photograph is uploaded because the owner of the copyright could sue for unauthorized distribution (which requires a license). And while we are reminded of this every time we upload a new album, the fact is, when the account was opened, these terms were agreed to because it applies to ALL of the content posted. Drawings, notes, status updates, everything. It is all intellectual property even if much of it doesn’t seem all that intellectual at all.

The terms of service had stated that when content was deleted, Facebook’s license to use the image would expire. The new terms of service stated that the license would never expire even if an account was deleted. According to Suzie White1 (a legal representative for Facebook), this change was made to tighten up the original terms of service because even when a user deletes their account, there are still many traces of that accounts existence. Every time a photo or Wall post is made on a friend’s page, that content is shared and deleting the original account does not delete any content on the friend’s page. It all makes sense from that point of view. Still, there are words that are in the current terms of service (which, remember is the old terms of service) that some people find troubling. Here is the crux of the problem:

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. 2

Photographers see this and think that it means Facebook is going to use their intellectual property for their own profit. Well, duh. If people didn’t post content to sites like Facebook, there would be no reason for people to visit sites like Facebook. Even with the best of intentions, Facebook doesn’t exist because it makes the owners happy that long lost high school friends are reunited. It doesn’t exist so that photographers can use their site for viral marketing. The bottom line is that Facebook is a company and they have a right to recover the costs of their equipment and to pay their employees. While the verbiage of the licensing agreement is very broad, it seems highly unlikely, especially given
Facebook spokesman Barry Schnitt’s comments1, that Facebook will ever do anything with user’s content that would actually be cause for alarm. Maybe it will mean that one of my photographs is shown as a screen shot for a publicity piece. It does not mean that Facebook is going to take my work and create a book, or sell cat food or any of a number of different things with. For one thing, the images are resized to low resolution files and are virtually worthless as a sales tool except as part of a screen shot. For another, doing so would mean losing their member’s trust and likely their business. Further, such usage requires property and model releases which Facebook couldn’t possibly even know if they exist.

So what does it all mean? Will Facebook lose members over this? Probably. Will members pull their content while the terms of service clearly state that the license expires with the removal of the content? LIkely they will. Will I be pulling my content? Not at this time. The bottom line for me is that Facebook allows me to tap into markets that I could not possibly reach with my business web site alone and that is worth something. They do not ask me for money but they do ask me if it is okay for them to publish my photographs. And besides, who knows, maybe by using one of my photographs in their marketing material, my work will be viewed by someone interested in hiring me. Or rescuing an animal. Mistakes are made all the time. Facebook is showing us that they respect these issues and are willing to work to find a solution that is acceptable for both their legal interests and to the people that own the intellectual property that provides the content for their service. I am hopeful that in the end, everyone will win.