Photographers vs. Facebook — Terms of Use

Whenever a photographer mentions Facebook in the company of other photographers, there is bound to be at least one photographer who gets up in arms about the licensing and terms of use. Facebook isn’t ignoring the complaints about its Terms of Use — in fact, the staff at Facebook have put out two blog posts this month: “On Facebook People Own and Control Their Information” and “Update on Terms“.   They’ve even created a group where you can help shape the future of Facebook: Facebook Bill of Rights + Responsibilities.

So, if you’ve been shying away from Facebook because you simply don’t know enough about how your images are affected by the Terms of Use… now’s the perfect time to become enlightened.  Yes, I’m on Facebook.  And yes, I post my images on Facebook.  You need to make that decision for yourself (disclaimer: I’m not giving actual legal advice, I’m just sharing my opinion — consult your lawyer if you want the final word on any of these legal interpretations!).

First, let’s examine the Facebook Terms of Use Section, “User Content Posted on the Site” (emphasis mine):

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

This paragraph is the one that many photographers and artists dislike — it basically grants Facebook an umbrella-all-encompassing license.  Here’s the thing.  Facebook states that you retain full ownership of all your content; and that when you remove your user content, that all-encompassing license expires. Facebook is pretty upfront about their reason for this wording.  Without such broad permissions, how would they be allowed to publish this information on your Facebook profile?

Here’s an excerpt from one of the blog posts I mentioned:

Our philosophy is that people own their information and control who they share it with. When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this license, we couldn’t help people share that information.

Facebook really just wants to be able to promote user profiles, user pages, and encourage the development of community ties within the Facebook community.  If they weren’t able to display your profile image in connection with your profile, think how much more difficult it would be to interact with old schoolmates and people whose names you’ve half-forgotten.

What about the blurb that mentions commercial and advertising usage?  The commercial or advertising usage of user content, from what I’ve seen, is really within Facebook itself.  I’ve never signed up to advertise on Facebook — but one of my friends saw an ad featuring my images.  Yes, my user content.  But guess what?  It was an ad that linked to my Facebook “Page” — so no harm, no foul, in my opinion.

And just in case you’re worried about Facebook taking copyright seriously; there’s even a “Copyright Complaints” section.

We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the Facebook website or service any materials that violate another party’s intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement as described in our Facebook Copyright Policy, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent. Please see our Facebook Copyright Policy for more information on how to report infringement of your copyright.

Please keep in mind that there is no fail safe “copy protection” method.  If you’re going to publish your images on the web, eventually someone will try to steal (or “borrow”) them.  There are tons of tricks for keeping your images “safe” — but in the end, those methods really just keep the honest… well, honest.  There is a way around every method I can think of.  So, instead of focusing all your energy on keeping those people from stealing your work, why not spend that effort educating your clients?  If you take the time to properly educate your clients — they will respect what you do, and they will spread the word.

Remember Aesop’s fable with the sun and the wind?  No matter how hard the wind howled, the traveler only held his coat more tightly.  But the sun’s gentle heat was enough to convince the traveler to remove his coat.  Gentle words (and gentle education) are far more effective than harsh threats.

So, there you have it.  I’d love to get some dialogue going about this; remember, the more feedback Facebook gets about their Terms of Use, the more likely it is that changes will be made.