**** Update: the 2nd part of this post is up as well, please check it out here ****
I don’t spend much time on Facebook. It uses my precious time, I get tired of blocking more applications and updating my notification settings.
Harpy Eagle, the largest eagle in the world. FB is a bird of prey.
Most of all, I don’t like the privacy issues but for photographers there is something even worse.
This article will detail the terms you signed for, what could happen with your images and why you could be breaking the law by uploading your wedding pictures to Facebook or even by sharing pictures you are selling through stock Agencies like Getty.
I am not a lawyer and some of the following might be incorrect in a legal sense. But most of it is clear to anybody. Read and shiver:
Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind it as well as technical info for photographers!
Signing your rights and income away without knowing
While changing yet another notification setting (No more emails for anything!), I noticed this FB message:
A Note About Your Photos
There is a false rumor circulating that Facebook is changing who owns your private photos. You own all of the content and information you post on Facebook. Learn More
That’s reassuring, right? Wrong. “Learn more” linked to the FB terms page, which states something much different:
Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.
Young Masai calling from the beach Zanzibar. Facebook gets its free content from all over the world.
That sounds good, right? Of course, you own all the content, they could not state otherwise, as in the case of intellectual property rights, a photo is yours the moment you take it. This includes the copyright.
And yes, you can tell FB NOT to use your photos for advertising purposes through their apps.
But wait, can you really? Here is what is next in the terms, a tiny ‘addition’:
In addition:
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.
So what does this mean?
In short: Facebook can do everything it wants and can legally do with your photos, videos, stories and everything else you might be able to add. Everything? Yes, everything.
For example, the above covers:
- – Facebook can sell your pictures and stories to anybody (‘transferable’)
- – They do not need to pay you for this, while they can charge what ever they want (‘royalty free’)
- – They can license your images to anybody else, who also can sell your images. (‘sub-licensable’)
- – They can do this all over the world (‘Worldwide license’)
- – Even if you have deleted your photos, if you have ever shared any of it (which I think you do by default), they can still do the above. Forever.
Oops.
So that cute photo of your baby? Yes, it could be sold by FB to a news agency doing a story about children. That nice sunset photo? It could be sold to Getty who can sub-license it and FB will get paid for every use of it (commercial use included). And guess what? They do not have to pay you anything, FB gets all income for it, you zero.
It mentions ‘in connection with’. What does that mean? I do not know. It could mean that this is true as well for any site where you signed in using your FB credentials, so even off FB you are not safe.
Model releases
FB likely knows a small catch: of course they state that you own your images, as a photographer by law has the copyrights to all his images, even if he signs the commercial rights away by adding them to Facebook.
Climbers on their way to North Col of Everest. I need model releases of all climbers in order to use sell this as stock (I can sell as art without it)
But the people in the pictures also have rights! That is why in order to sell an image to Getty or Corbis or Alamy or any other stock agency, you need a so-called ‘Model-Release’ (and actually for a lot of places like houses you need a ‘property release’ as well).
This model release needs to be signed by the model(s) in the picture, even when they are not clearly recognizable, so also when shot from behind or even when just a hand is in the photo. Without the release the photographer can still make posters, write books, have expositions etc (to promote the artist) and even sell the image for editorial use (current news, background stories), but he cannot license it for commercial usage.
This is to protect the model for being ‘used’ to promote something (s)he might not agree with and in places (s)he might not want to be associated with. Otherwise that bedroom shot of your girlfriend could be used in banners advocating porn sites, your vegetarian baby could be used to promote beef-flavoured processed babyfood etc.
Facebook is not a stock agency. Yet.
If FB would be really the devil, they could have put the requirement for model releases in the terms as well. This is what stock agencies do: they want a legal stick to hit you with in case a model later claims that (s)he never gave permission to use the photo while you said so.
The model sues the company using the photo (the one that bought a license to use it on a jar of erotic jelly), the company sues the stock agency (the one selling the photo to the company with a license to use it for whatever they want) and the stock agency sues the photographer for supplying a photo without the required model release.
Hey, you did not read that FB terms page anyway, right? So why didn’t they require model releases? For starters, they would know that nobody would upload anything anymore and users would quickly move on to the next hype.
Secondly, they know that any decent judge would never let them get away with this (meaning selling images to stock agencies and blaming the photographer when something happens), even though they would have the legal rights to do so.
But guess what? The model release is not needed for your cute cat pictures, the sunsets, the landscapes, your bicycle shots and much more. All these images can be licensed without a model release and as you have given your rights away, FB can do this and does not have to pay you anything for it. Same for that inspirational prose, that funny quote of your grandma, your intimate thoughts. FB can make a book of it and sell it, no problem.
Actually you ‘shared’ your rights with them, as you can still license your images and stories yourself as well, just as you also need a model release in order to use pictures of people commercially.
The grey area
Strangely enough you can give permission to Facebook to use your pictures for FB ads. That means somebody could see your face under a commercial advertisement, like you endorse not only the product, but the ad as well. You signed this away by signing up, unless you change the settings under ‘ads’ again. But if you allow this, FB apparently can also use images you posted of your friends, even if they never ‘liked’ a certain product or page, just because they showed up in the stream of somebody who did (you).
This is strange as FB never requires you the mentioned model releases, so theoretically they can use your friends to spam others, without a model release. The model could protest and maybe even sue, and it seems that FB would be at fault.
Rights managed and royalty free: your stock photography business could be in danger if you upload to FB
Photographers will know that there are 2 main ways to sell stock images. In short:
-
A snowy yak near Rongbuk Monastery, Everest Tibet. One of my images that is for sale as RF stock at Getty Images.
Rights Managed means that every use of an image is noted and controlled, that is why these images usually cost more and the photographer earns more. This prevents the use of a nice image to be used by competing companies and even provides extra income for the photographer when the same client decides to use the image again for a brochure or other additional use. This is a Good Thing.
- Royalty free means that the client pays once and can do whatever they want to do for it. Cheaper for the client, but they have the risk that their competitors use the exact same image.
As Facebook does not know about the past use of your images, they can only sell it as royalty free. So why would you care? Because it works both ways:
If you ever have uploaded a picture to Facebook, you will never be legally able to offer this image as a Right-Managed stock image to any stock agency. Think about that. As you cannot know what FB has done with your image, you will be breaching contract with your stock agency if they accept it as a RM image.
Buddhist prayerflags at the Lung La pass, Tibet. One of my images that is available as a RM image through Getty and as a fine art poster through ExposedPlanet.com
And automatically:
If your images are represented as Right Managed photos by a stock agency, you will be breaching contract by uploading them to Facebook.
You are not just promoting yourself as a photographer (which is allowed), but you are also giving FB the rights to sell your images, which is illegal as you already sold the images exclusively.
There could be FB ads with your images, while your stock agency sells the same image RM to a competitor for a large amount of money. Guess what happens when a client find this out?
Copyright, ownership vs user rights. Why Facebook’s wording is sneaky.
You might be giving away rights you did not even have…
If you hired a wedding photographer and (s)he made some great pictures, you might think you own the pictures. Wrong. Unless you specifically made a note in the contract (and most sensible photographers won’t let you), you own the prints you got even if you got a CD with images as well.
What’s the difference?
You are not even allowed to make more prints without a written approval and all good printing houses will ask you for this. As mentioned above: the photographer always owns the copyright to the images he shot, even if you are in them. It is easy for FB to state this as they have no choice, it would make all the terms invalid if they claimed ownership.
Wedding photographer in Dar es Salaam, Tanzania. Just because you paid him does not mean you can post his photos on Facebook.
What you are certainly not allowed to do is to sell your expensive wedding or professional baby images to a stock agency. And guess what? If you upload them to FB, you do not just do that, but you are giving them away to a company that can do even more than a stock agency.
You are likely breaching your contract and breaking the law by uploading your wedding pictures on Facebook. A photographer in a bad mood (and there are more and more of these), has the right to sue you and claim damages as you broke the contract.
Same is true for sharing any image you do not own the copyrights of by the way, i.e. every image you did not take yourself, you do not own.
So now what?
FB loses the rights the moment you delete your content. That is the quickest solution. Actually, the quickest is not to upload anything at all. You can easily host a blog on your own or even get a free one at WordPress.com or similar places. Just make sure to check the small print if you want to keep any control of what happens with your pictures.
If you own a photography business, stay away from any website with such ridiculous terms with regards to intellectual property. If you care about your photography and about the ones in it (your family and friends), don’t share it on Facebook as you are sharing more than you might care for.
Marine Iguana in the Galapagos Islands, Ecuador. Like Facebook, it moves when you least expect it and nasty stuff comes out..
There is no such thing as a free lunch nor a free social website. Facebook needs your submissions and your actions so they can help advertisers sell stuff they think you need. The more material you supply, the more billions will be mentioned in the next financial article about FB.
Yes, they are worth a lot, because they get all these free gifts all the time: your photos and stories, including the rights to sell and make money of them.
Facebook is not a stock agency, yet. But the moment they want to, they can push many stock companies right out of the way as they have all this material and the approval from you to market it. Don’t believe that this just won’t happen because FB is ‘just a social website’. They are not: they are a multi-billion-dollar business and out to make money.
That is ok, that is what businesses do. What is not ok is that they hide behind hard to find or understand terms you sign for.
When they go public, their shareholders are going to demand even more money and the clever ones will get out rich, before it gets messy. Because it will.
Get your pictures out now.
**** Update: the 2nd part of this post is up as well, please check it out here ****
Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind it as well as technical info for photographers!
Tags: Facebook, Internet, legal, sharing, Stock, Stock business
Interesting read! What about uploading low-res 600px images? Maybe with a watermark?
Sure they could still possibly use them for small FB ads (someone would have to go to the trouble of erasing the watermark), but the quality wouldn’t be good enough for bigger types of sales…
I’ll have to go check up on my FB image settings!
Hi Matthew,
thanks for your comment and retweet. Lowres/watermarked pix are needed everywhere online to prevent illegal use of your images.
Problem is that FB can _legally_ use all images, so even low res ones. I think the chances are very small, but I just don’t want this to ever happen and don’t want even the possibility (plus the fact that I sell to stock agencies). So I have zero photos on Facebook 🙂
ps: also check your Facebook Ads settings as there you will give permission as well… But basically the main terms will always apply, so just prevent it and do not upload things that you care about.
I had heard about this and so don’t tend to load photos directly other than ones I really don’t care about, even then only on very rare occasions.
What I do use however is flickr, which I have linked to my fb account so it tells people I’ve updated my photostream and often puts a little thumbnail of the photo. Please could you tell me what this could mean in terms of what you’ve described above? Cheers
Hi Kerry,
thanks for your comment. Flickr itself is much more ethical than FB as they do not claim any licensing rights on your photos, so it is good to post photos there.
As far as posting links with thumbnails (what is what you are basically describing) I would think that this would not be any problem, as FB could never know if you are posting your own intellectual property or IP from someone else.
If you would upload the thumbnails to your photo album, they then would get all the rights for sure.
Again, I am a photographer, not a lawyer and do not know the legal background of the “in connection with FB” part of their terms means. But they lost me long before that with their sneaky terms… They clearly can’t be trusted, so I won’t.
hmmm, I just checked the rest of the terms, which includes:
“Special Provisions Applicable to Share Links
If you include our Share Link button on your website, the following additional terms apply to you:
We give you permission to use Facebook’s Share Link button so that users can post links or content from your website on Facebook.
–> You give us permission to use and allow others to use such links and content on Facebook. <--- So I guess, yes, they do claim rights of anything you share. And if fact anything from any website that has a 'share' or 'like' button! I guess I will take that off soon. Also the legal sections (dispute) etc will warrant a second part of this post. They basically take no responsibility for anything....
This is dissapointing if its true because I would really like to bypass this issue by using flicker myself. So this is regarding your last post:
yes, based on what they say in their policy, facebook can use any Share Links content that you post. BUT, I wonder if that really means you give them permission to take the photos you post on Flickr. They use the words “my website”. I would assume that means your own personal website owned by you, like a blogging site or something similar. Since flicker is not technically “your” website, I should hope that you could still Share Link flicker photos on facebook and be fine (but im not %100 sure…also not a lawyer).
As good as their lawyers may be, It seems weird that facebook would be able to take photos that you post from another large internet company like flickr just beacuse you post a Share Link. If those rules applied, wouldn’t that mean if I liked an article from the NY times website and shared it on facebook, facebook could use that content any way they wanted? That doesn’t seem reasonable. Am I on to something here or way off?
This just confirms my suspicion that Facebook is the spawn of the devil. It’s one thing for a company to have stringent terms and conditions. It’s quite another to be deliberately misleading in how you establish those terms or privacy settings.
If you were working with a car dealer who tried to smoke some contingencies past you, wouldn’t you walk out of the dealership?
As much as we should be alerted if the car dealer says, “Press hard when you sign; You’re making multiple copies,” the fact that the FB Terms are not at all clear is a clue that we should notice.
I’ve trimmed my FB profile and presence down to the bare bones due to my own concerns about privacy and licensing. But I wonder: Is that enough? The conundrum is that many photographers feel that FB is an effective venue for marketing their work, and yet they freely sign away their rights when they don’t read the Terms. Without an established presence on FB — however minimal — I do feel as though I’m missing some action.
Like Kerry and Tim, I’m wondering how the FB terms apply when posting a share link from Flickr or my blog. If I do that, do I, or do I not, sign away all rights to my images? If there were a clear answer to that, I’d take appropriate action TODAY.
I’ll stay tuned to this thread in the hope that an answer will come up. Thanks for this detailed and very important blog post.
Rob Hanson
© 2011 Rob Hanson Photography, All Rights Reserved
Hi Rob. Thanks again for your comments, I just added the 2nd part, please see it here:
http://blog.exposedplanet.com/why-sharing-photos-on-facebook-is-bad-for-you-part-2-why-the-share-and-like-buttons-are-bad-news/
I welcome your thoughts.
Rob & Tim, thanks for your comments. I am actually working on the 2nd part of the article right now. It should be up in a few hours, and I will comments again, so you get notified. It is not going to be a pleasant read…
I have removing our photos from Facebook on my to-do-lists for weeks now, but thanks to your information, it is the first thing I will be doing today. ‘Looking forward’ to the 2nd part of the article.
Laurien van den Hoven
Photothema Storytelling Photographt
Oh noooo, I’ve just read the article … and this is the classic missunderstanding of the FB terms!
“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.”
This is necessary for Facebook, that we ALL are able to share photos between eachother, so that your ex-friend, for example, cannot complain, if you have shared his photo in your profile, for example 🙂
This term is just for Facebook’s own security!
I really don’t like, if some persons cannot understand the sense of Facebook (and its terms) and panic like he and his article, that Jan mentioned above.
If you like to go very, very safe … like me 🙂 … then post only links, that come with thumbnails and all is o.k. 🙂
By the way, change your private settings, so that nobody can mark you at photos, that you do not share your photos at all here at Facebook. Even at my fanpage I only show links – nothing more. These photos (coming with the links) are NOT on the Facebook servers and they have – logically – no access to them and no right to do whatever with it 😉
”transferable” means from one account to another, the classic photo sharing as millions of FB users do every day. This fact needs this term of Facebook, so that nobody can proceed againt FB 🙂
That’s so easy and has nothing to do with selling!
Selling thumbnails?
🙂
So don’t panic and spread such a nonsense!
Thanks for your comment. That is a lot of smilies in one comment! I rather disagree with this being nonsense, thank you.
Of course FB also needs to protect itself against all those crazies who want a piece of the pie. But there is no reason to be able to sublicense and transfer your IP content worldwide royalty free.
This is not protecting them, just increasing their market value. And as I pointed out, these terms contradict the terms all stock photographers sign for with their stock company, putting them at legal risk. So where is the nonsense?
I will put up the 2nd part soon, with much more legal ‘nonsense’…
Fascinating article. I am not a professional or even a particularly good photographer, but doesn’t Facebook’s unbelievably low resolution of posted photographs inherently preclude their would-be commercial value?
I am, however, deeply concerned about ongoing corporate and governmental incursions into our privacy and intellectual property rights. The inter-web and the corporate giants who dominate it are the latest in a long line of interlopers who aim to whittle away our commercial and personal sovereignty.
I have payed close attention to privacy since the early eighties, but I find it increasingly difficult to engage the average netizen in a substantive discussion about the pressing issues of the day.
We snooze at our peril. Thanks for the wake up call.
mm.
Hi MM, thanks for your comments, I totally agree with the privacy issues.
By the way, also small thumbnails are being used, check out this article about a guy finding a picture of his wife in a singles ad, it was taken from Facebook.
Just because they “can” doesn’t mean they would ever try this. Selling to getty? Really? I agree with birgit in that these rules are made just simply so that sue-happy people don’t get mad when one of their friends(or if your profile is public, anyone) takes a photo you post and shares it.
In other words I guess I’m not painting facebook as the spawn of all things evil like you are, if they became the next microstock agency selling extremely small sized pictures of your kids and cats(too small for good quality physical prints) I’m sure there would be a huge public uproar, whether they’d win or not legally they’d still lose a ton of its user base.
Hi Mikeh, thanks for your input. I don’t think that FB is the spawn of all evil. If anything it is the people and lawyers that have created the claim culture that make a lot of these rights necessary for FB, while they should be common sense. Of course if you upload a picture, FB should be able to make a copy on their servers, how else would they be able to show you your own picture? But as nobody is responsible anymore and nobody can think without a lawyer, these terms have to be stricter and stricter. That’s what I explained in the “in defense of Facebook’ in part II of this article.
But don’t assume that any rights FB needs are those that photographers should be giving away. Everybody should check their own situation. But even f it were ok, I don’t like companies that change their term regularly and in the way FB does. How many people left FB when they did that? I think most people don’t know, don’t realize or don’t care.
A man found a small headshot of his wife (posted on FB) in a singles ad, thanks to FB. Many people uploaded pictures to Twitpic in good faith, but once Twitpic cashed in, all images were suddenly property of the new owner who can now sue you for using your own image. I rather prevent these kind of things than fix them after the fact, but of course everybody is free to think and do what they want and let’s be happy about that.
Thank you for sharing this information. It’s very useful. It is good to know what FB is doing in this area, so that I can pass the info along to others and make informed choices about what I do. I just took all of my own work off of my FB page.
Thanks for your comment Joy. Maybe I am wrong about some of my assumptions as I am not a lawyer and all terms are double-wrapped in legal cushioning, but for me it is unclear enough not to trust it. For others the small risks involved might not be a problem, but at least everybody can make up their own mind. Everybody should do what is best for them and for me it is best not to have my IP content shared on and possibly beyond FB.
1. I think the FB has not invented anything. All of the “photo sharing” depots have about the same deceptive rules. It is just the level of the ethics in this industry.
2. Just a few weeks ago a dedicated advocate of the abandoned Orphan Works Act became the head of the Copyright Office at The Library of Congress. It indicates that the nightmarish idea of obligatory registration of every piece of image and sound may surface in the new clothes soon.
3.With the already abusive interpretations of the copyrights, fuzzy rules of the security, privacy and decency, deceptive “agreements” with the artwork sharing depots and hosting services, and reincarnated Orphan Work Act would put in the hand of the few corporations everything what the human created, is creating and will do it in the future.
(-)
Thanks aa, it will be interesting to see if the copyright law will change or not. and yes, FB is not the only one doing things wrong or at least strange. It is a new field and though many like to play on it, I rather like to avoid the mines hidden underneath it.
Those FB T&Cs had been hugely bothering me for the last few days and I’d already resolved not to add anymore of my work to FB and was considering whether I wanted to start deleting or not. Upon reading this, I have taken the plunge and deleted most of it that was on FB. This is tough bc like the commenter above it does seem that some FB presence is necessary for marketing purposes.
It also seems to me that FB’s claim to our photos is legally indefensible on several counts:
1. the lack of model releases, as you mention
2. FB has no way of knowing whether the person who uploaded the pictures is the legal copyright holder and thus in any legal position to grant the license FB is claiming; i.e. if the coyright holder has never uploaded the pics to FB (though perhaps a friend or client uploaded them), it appears the copyright holder would have grounds for a claim against FB if FB attempted to do anything with those photos
3. (this point is in response to a point you discuss in part 2): you can’t require something illegal in a contract; by claiming signatories waive their rights under CA law, FB attempts to set itself up as a greater legal authority than the state. I know that businesses routinely put these kinds of clauses in their contracts, but I don’t think they’re really enforceable; at least there are huge grounds for challenging them. It’s like requiring signatories to acknowledge that FB can act with impunity beyond the parameters of state law.
This whole issue is par for the course in the way in which FB constantly changes the T&Cs without notifying its users; every time it happens it’s the users who notify one another. That in itself is pretty legally challenge-able as people need to be notified and given an opportunity to opt out if they don’t want to agree to the new terms.
Thanks Photomadly. I agree that there are too many legal question marks. it seems that either 1) everything in the FB terms is legal or 2) not everything is legal. But with a company of this size, you can assume that the legal budget available can make illegal things appear quite legal. Many court cases (not involving FB) have ended not because the person started it wasn’t wrong, but because he simply did not have more financial breathing space to prove he was.
I think a lot can be said about FB needing a lot of these rights to do what they do, which is partly a result of this idiotic claiming culture we have built around us where lawyers make sure that nobody needs to act sensibly and responsible anymore.
But whether FB needs all these rights or not is not to be confused with whether this is good for photographers as well. I am sure some wedding photographers get some new business and they won’t care much; and chances are quite small that any image I sell RM would end up in the wrong hands on FB. But it still puts me in legal danger with my stock company and I rather be 100% sure than wait until I find out about the next T&C change.
Hi very nice article, I was wondering how it works if you have photos in a contest sight like Betterphoto.com, we have galleries and have our web sights listed on FB in the info section, when finalist and winners or even just want to post our daily entry and you paste your link to FB to the photo on Betterphotos sight, can they use it as well?
Thanks so much for writing this Blog, it is so sad that FB has to take from it users to make money for themselves and leaves us the Photographer with not being able to sell, I deleted my photos and will no longer upload anything
Hi Peaches, thanks for your comment. There is little chance that FB will actually use anything, but for a photographer it is still too much. I have no experience with Betterphoto and do not know their terms, but in principle FB can use anything from any site that offers links to FB. Ths is partly to protect themselves, but it covers much more rights than they need.
Hi,
I;m wondering if you can help me. If i take photographs of a person, lets called him “Fred”…. I upload my photos of Fred to FB. Fred then uses my photos as his profile pictures etc so if I try to delete the photos, Fred still has them. Fred also starts to use these photos on other sites. If I don’t want Fred to have the photos or share them on other sites, is there anything I can do? Are they still my copyright? or did I lose my copyright by uploaded to FB in the first place? and do I have a say how they are used?
any help will be much appreciated!!! thanks
Hi Eli, thanks for your comment. There are a few different issues here:
– You will never lose your copyright to the images, it comes with taking the photo and can only be transferred in writing (contract).
– ‘Fred’ is not allowed to use your images for anything unless you have given him permission 9or when you have used a Creative Commons usage license etc), even though he is in the pictures. You can ask FB to remove any photo (used as a profile picture etc without your permission), they have an online form for that and usually act quickly.
– However, unless Fred has signed a model release you are also not allowed to use the image yourself for any commercial purposes, so whether uploading to FB is allowed at all is a grey area.
– FB is allowed to do whatever they want, when ever they want as by uploading and agreeing to their terms you have given them an unlimited license to do so.
So you will always keep your copyright, FB has all possible licenses and usage rights (not copyright), whether they use them or not. Fred cannot use his ‘own’ image without your consent and you cannot use ‘his’ image for commercial usage without his consent!
Good luck 🙂