Are You Sharing Or Relinquishing Your Rights On Social Media?
By Ryan Hong
Considering the meteoric growth of social media websites like Facebook, which had 1.44 billion active users in the first quarter of 2015[1], the ecosystem of individuals and businesses that should be cognizant of the legal consequences of uploading copyrighted works is expanding. Terms of service for Facebook, Twitter, and Instagram grant the social networks broad rights over user content. Below are excerpts from each site’s terms of service.
Facebook: “You own all of the content and information you post on Facebook…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.”[2]
Twitter: “By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”[3]
Instagram: “Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”).”[4]
The all-encompassing licenses users (often unwittingly) consent to when signing up for an account arguably make the distinction between owner and licensee use little more than a technicality. Facebook reassures users that “you retain the copyright to your content,”[5] but it is unclear to what degree the copyright owner’s rights are broader than the social media platform with respect to that owner’s content. Unfortunately for users who post their works, the sites are entitled to do the same things with that content that the user could do under 17 U.S. Code § 106, which lists exclusive rights in copyrighted works.
This may be problematic for users who are keen on privacy or who rely on copyright law as a safeguard against lost profits (e.g. photographers). Even if the licenses are never fully exercised, users are apt to take issue with the sheer possibility that a website may exploit uploaded content. The only way to prevent Facebook from using one’s content is to delete it (or delete one’s account) and ensure that everyone who has shared it has deleted it as well, which may be a challenge given how integral photo sharing is to Facebook.
There are few, if any, publicized cases of major social networks actually using user content for commercial purposes like advertisements. However, the three major sites listed above all retain a right to sub-license content. The story of what happened to an Ohio family’s Christmas card in 2009, while never posted on Twitter, is a good example of what sub-licensing may look like.[6] The family was shocked when a family friend traveling in Prague spotted their faces on a billboard for a grocery store. After the photo was posted to a blog by the photographer, a Czech grocery store simply took the image (without permission) and used it to advertise their speedy delivery services. This case underscores the point that had the image been posted on Twitter, under its terms and conditions, the social media platform would have been perfectly within its rights to sub-license the photo to the store.
Unlicensed use by other users or websites is what has tended to cause the most litigation in social media thus far. Luckily for Facebook, Twitter, and Instagram, the Digital Millennium Copyright Act[7] (DMCA) protects the sites from liability for copyright infringement if their users infringe others’ copyrights via their respective site (i.e., by posting copyrighted content), provided that the sites promptly remove the infringing material. Users, who are not shielded from liability by the DMCA, should tread carefully when posting photos they did not personally take. One photographer filed suit against Sarah Palin and her political action committee after she posted his photo of firefighters raising a flag on 9/11 to her Facebook page and website.[8] As of last April, the parties were still at an impasse in settlement negotiations.[9] Users should also be aware that content posted by a copyright holder does not enter the public domain by virtue of being shared on a social media site.
While sites like Twitter are generally free to do as they please with posted content, users are not. Photographer Daniel Morel was awarded $1.22 million after Getty Images and an international news agency used eight of his photos of the 2010 Haiti earthquake.[10] The court rejected the agency’s argument that it could use the images under Twitter’s terms of service without Morel’s permission. Had Twitter sub-licensed the photos to the agency, Morel’s claim likely would not have survived a motion for summary judgment. The case is one of many that highlight the new legal pitfalls that exist for both businesses and individual users, despite the deceptively informal setting of a tweet, a Facebook post, or an upload to Instagram.
Ryan Hong is a partner in Michelman & Robinson, LLP’s (M&R’s) Advertising & Digital Media Group. He can be reached at rhong@mrllp.com. M&R is a national law firm with offices in Los Angeles, Orange County, San Francisco, Sacramento and New York. For more information, please visit www.mrllp.com.
This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.
[1] http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/
[2] https://www.facebook.com/terms.php
[3] https://twitter.com/tos?lang=en
[4] https://help.instagram.com/478745558852511
[5] https://www.facebook.com/help/193430577370347
[6] http://www.theguardian.com/media/2009/jun/11/smith-family-photo-czech-advertisement
[7] 17 U.S. Code § 512
[8] http://politicalticker.blogs.cnn.com/2013/09/14/palin-sued-over-911-photo-use/
[9] http://www.northjersey.com/news/lawsuit-stalls-in-sarah-palin-s-use-of-the-record-s-iconic-9-11-photo-1.1314340
[10] http://lens.blogs.nytimes.com/2013/11/23/haitian-photographer-wins-major-u-s-copyright-victory/?_r=0
