Copyright, Licenses and Terms of Services

Consequences implied by a service's terms of service, when you upload an image file.

Copyright, Licenses and Terms of Services

The legal implications, when you upload an image to an internet service.

Imagine that a couple of weeks ago you've uploaded a photo to a social internet service. A nice photo that you are proud of and that you just want to show to your followers as usual. However right now you are browsing an art print shop and you see... your photo as the most popular print and on sale as canvas print for $499. Does this makes you upset? Do you want to call an Lawyer to sue these bastards? Now what, if I tell you that the shop could have done nothing wrong from a legal perspective and that they could be perfectly fine making big money with your work?

I am constantly amazed on the lack of knowledge of the terms of services of a internet service users are using. In case you didn't dare to read the terms of services yet and do not care what happens to your content that you are uploading to a site and in case you do not want to know what to look for in the terms of services and their implications, this article will be too boring for you. Feel free to continue uploading your content to any service as usual. But please do not start complaining like these crybabies that uploaded their images under a common CC license to Flickr without ever reading and understanding a license.

Before I begin let's clarify that I am not a lawyer and no expert in copyright law. Further more there isn't something like an international copyright law. These regulations differ from country to country. The points below are my own understanding of the status quo.

Further more I am referring to Facebook and its terms of service (ToS) as a role model example here. Facebook isn't the only black sheep on the net, but after reading this article you hopefully get some hints on what to look for in the jungle of a site's ToS.

Ready, for some boring stuff? OK, let's go.

Copyright

First: What is copyright? Wikipedia says:

Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator (e.g. the photographer of a photograph or the author of a book) to receive compensation for their intellectual effort.
http://en.wikipedia.org/wiki/Copyright
So whenever you take a photo you will be the copyright owner unless you take the photo under a contract that regulates the copyright ownership differently, which usually is the case when you are creating the work as a representative of a company (in this case the company will usually retain all copyrights of the work that has been created as part of the contract). But let's keep things simple and assume that you either take the photo for personal use in your leisure time or as part of a self-employed, professional assignment, in which cases you will be the copyright owner.

Now the copyright grants you and only you the exclusive right to use, sell and distribute your photo however you want, granted that there are no other legal restrictions depending on the photos content, but that's a different endless story.

Copyright is a relatively easy understandable part. In short the copyright allows you to do anything you want to do with the image. You can sell limited prints and no one is allowed to create illegal copies. But you can also give it away for free like uploading it on a free stock photography site.

Licenses

When you sell or distribute your photo you will want to bind the release of your picture to a license, similar to the EULA of software that you have to confirm before installing a program on your computer. For example if you hire a professional photographer for your wedding you will usually have to sign a contract that disallows you to create copies of the pictures you receive from the photographer. If you want more prints of a photo you have to order them through the photographer, who takes a surplus charge for this service.

When you share a picture on the internet on a site like Flickr, you are asked to select the license under which the viewers can use your picture. Is the viewer allowed to view it only for his personal pleasure? Or may the viewer download the image and use it for non-commercial usage or even for commercial usage? Before you select a license make sure that you understand the implications. If in doubt always select 'All rights reserved', which means that you retain the copyright and do not grant any other rights to others. As the recent controversy, when Flickr started to sell prints of CC licensed pictures, showed, many people are overstrained with understanding even explicit and well known standard types of licenses.

Terms of Service

OK, so the copyright allows you, the copyright owner, to grant a license for your photos to third parties. But that's not what I want to talk about. I would like to talk about the license you implicitly grant to the company that operates the service you are using to distribute your picture to the world. This service provider can be Flickr, Instagram, Pinterest, Facebook, Google,... and so on. Basically it's any site owner that offers the capability to upload one of your pictures and displays the picture to their users.

In the terms of services of such service providers they require you to grant a license to the photo you are uploading to the service provider by uploading the photo to the site. Legally the service providers are obligated to demand such a license as the need the permission to store your photo on their servers and deliver it to their viewers browsers and thus creating copies of your file. There is nothing wrong with that since the service providers would not be able to legally operate their services otherwise. However some service providers go a bit too far with the required rights to your property they demand through their ToS.

As already said I am using Facebook just as an example for any other service provider here. So let's take a closer look into their terms: Statement of Rights and Responsibilities. In particular we are interested in section 2 on shared content. I am citing the whole section to maintain the context before commenting on individual parts later.

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. In addition:
  1. 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.
  2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
  3. When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Use Policy and Platform Page.)
  4. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
  5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
https://www.facebook.com/legal/terms - as of November 15, 2013.

So let's take a closer look:

You own all of the content and information you post on Facebook [...]

Sounds good, but basically this just tells you that you are the copyright owner. Facebook will not be able to change this fact anyway so this is worth nothing.

[...] 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 [...]

OK, now it get's interesting. What do those words mean?

  • Non-exclusive: The license you grant to Facebook is not limited to between you and Facebook. Actually good for you. This allows you to further license your content to others besides the license you grant to Facebook.
  • Transferable: Facebook reserves the right to transfer the same license you grant to Facebook by uploading you image to any third party as well.
  • Sub-Licensable: Now this is the worst part: Facebook reserves the right to license your photo to third parties under different licenses. Basically this means that Facebook reserves the right to do whatever they want with your picture. Imagine this: Facebook could license your picture to an image agency like Getty Images and even could sell it under their own, altered license to these agencies making big money with your picture. Or Facebook can spin off a fine-art print shop and sell your picture there. Or Facebook could use your picture for their ads. And what will you get for that?
  • Royality-free: Answer to the previous question: Nothing! As a standalone term this sounds as a no-brainer as no one expects to get money from Facebook by uploading pictures, but in context with the other words this is a bomb.

Well, in case this would happen you could simply delete your picture, right? Wrong!

[...] 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 once at least one user has shared your picture and as long as any user that ever shared your picture does not delete your photo, the license is irrevocable (!).

To be fair: Some of these terms are required for standard operation, as Facebook needs to distribute your photos electronically to other Facebook users. However the lack of restrictions on the vast amount of rights Facebook grants themselves is really scary. This is the main reason, why I do not upload any photos (unless those occasionaly cellphone shots I am not proud of) to Facebook anymore.

Let's compare this with the terms of Google:

[...] When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. [...]
http://www.google.com/intl/en/policies/terms/regional.html - as of April 30, 2014
Notice the lack of the words 'non-exclusive', 'transferable', 'sub-licensable' and 'royality free'? Even more Google explicitly limits that license to the sole purpose of operating their services, an limitation that I sadly miss in Facebook's ToS.

Am I a conspiracy theorist believing that Facebook will start selling your photos in the near future? No, even though I am not a Facebook fan I just believe that their terms are just a way over the top. However fact is that legally they seem to be legit to make money from your pictures without compensating you. And then remember that Facebook is already commercially exploiting your photos by using your photos in their ads

Finally please don't forget that I am referring to Facebook just as a popular role model for many other current and future services on the net.

Recommendations

So what should you do?

  • Read the ToS of any service, wherever you plan to upload your photos, very carefully. Especially scan the part that deals with the implicit license you grant to the service owners by uploading content.
  • Not only scan for the keywords I highlighted above from Facebook's ToS, but also check whether the site's ToS explicitly limits the service owners rights to sole service operation similar to what Google is stating in their ToS.
  • In case you do not agree with the ToS of a site regarding the license you have to grant them when uploading photos, do not upload photos there. You might regret it later, but then it may be too late. If you want to make your images accessible to your followers on such services, check whether you can simply post links to your photo that has been uploaded elsewhere like your own photo blog or a site with better terms like Google+. For example this works pretty well for Facebook.

Bonus

Recently I received a comment on Google+ that someone liked my photo and has shared it. But the post on Google+ did not indicate any shares, so I asked him, where he shared it and his answer was "on Facebook". So I checked out his Facebook profile and discovered that he downloaded my picture from Google+ and uploaded it to his account on Facebook. He was a nice guy and posted a link to my profile on Google+, but what he didn't take into account was that he created several legal problems with this thoughtless share.

From Facebook's ToS:

[...] You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law. [...]

That's a very important term for Facebook as they must ensure that the picture is uploaded by a legal copyright owner. Why? Because they need to make legally sure that the user that uploads the photo has the legal right, i.e. the user is the copyright owner, to grant them the required license. As the guy that uploaded my photo to Facebook is legally bound to this term since he accepted the ToS himself, Facebook safely can act on the photo according to their license, since it was that guy, who made false statements. However the content he uploaded is still my photo and I haven't granted the license to Facebook. I wrote about this serious problem in more dept in another article.


As already said. I am not a lawyer and some of the statements made in this article may be incorrect. In case you discover anything wrong I would be happy to get your feedback in the comments below.


UPDATE (2015-05-12): You might find this article on Petapixel very interesting. A Facebook sales representative herself seems to have an even more extreme position than I thought in this blog post: Facebook Rep Claims Uploaded Photos Become the Company’s Property. Although Facebook officially distanced from this view this shows how such unclear terms can cause confusion.