Facebook and Photographers. Do you know your rights?

By Lucy Pallett-Jones (Ham Photography)
November 15, 2012 from Blog,Photography

Computer on the Beach by Kai P.

Facebook has non-exclusive rights to all content you publish on the website. The social network is able to use your images in any way they wish, for however long they please – and there’s not much to be done about it.

It may not seem like such a biggie at the moment. If you’re a beginning photographer, you might wonder the chances that Facebook would use your images publically anyway.

But everyone starts somewhere; Sam Worthington was living in his car when he was cast in Avatar. So in ten years time, when your photographs are critically acclaimed and the Guggenheim is knocking at your door, Facebook will still have the rights to use any image you ever published on the site. They will be able to create billion-dollar advertising campaigns using your photographs – and you won’t see a dime:

“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.” (Facebook Terms and Conditions)

So what is really going on when you publish your photography to Facebook?

Zuckerberg has rights to your photography

When you post content on Facebook, you are publishing it. You are giving Facebook the rights to use it however they like:

  • “Transferable” and “sub-licensable”: Facebook can give third-parties rights to your content.
  • “Royalty-free”: Facebook has the right to use your copyrighted work without paying you license fees or royalties – no matter how much they make from its use.
  • “Worldwide”: Facebook can use your photography anywhere, any time.

In their Terms and Conditions definitions, Facebook states:

“By “use” we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.” (Facebook Terms and Conditions)

You still own the content

Facebook does not have exclusive rights to your content. It is still under your own copyright (which is created as soon as you release the trigger on your camera). You can produce, modify, display and distribute your content anytime, anywhere in the world. Essentially, you still own your photograph. You just won’t make any money from it if Facebook decides to use or sublicense it.

Deleting the content will terminate the license…sometimes

When you delete your image, the license granted to Facebook terminates. However, if your photography has been shared, and is not deleted, the license will still exist. And even if you delete the image, or de-activate your account/page, all content will exist in Facebook’s historical files:

“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).” (Facebook Terms and Conditions)

Facebook can modify and sublicense your content

Facebook can grant a licence of your work to a third-party, and they can do so without obtaining your approval. They are also able to modify your work when they use it – think digital manipulation or marketing design for an advertisement.

Remember, Facebook’s definition of “use” includes “create derivative works of.”

Some third-party applications have rights too

Some third-party Facebook applications can use, store and transfer your content and information, and content your friends have shared with you.

“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.” (Facebook Terms and Conditions)

In summary, always check the fine print of an application on Facebook before you use it.

At the end of the day, Facebook enables photographers to share their work with one billion users – for free. It’s a fantastic platform for networking, promotion and client-generation, and it’s growing every day. Despite the concerns with their terms and conditions, Facebook is a great website for photographers to spread the word about their work. So if you’re going to stick with Facebook, despite their free, worldwide, sub-licensable rights to your photography, you may want to consider:

  1. Not publishing your images on your Facebook page, or only publishing a few. Consider uploading low-resolution images.
  2. Watermarking your images. Australian graphic designer Elle Jones says a large, low opacity watermark embedded across your image is the best solution to the problem. Corner-placed watermarks often look great, but can be easily cropped or edited out of the photo.
  3. Always reading the fine print. If you are concerned about the use of your images by Facebook applications, this is a must.

Alternatively, you can steer clear of Facebook and publish your images on a private portfolio.

To read Facebook’s terms and condistions in full, follow this link.

  • http://www.chromaticdramatic.com/ Chromatic Dramatic

    I think you need to explore the works “Transferable”, and “sub-licenseable”, as there is another less nefarious interpretation to the T&C’s… namely inorder to host and display your images, Facebook needs to be able to show them “worldwide”, and will do it without paying you “royalties” and if someone whats to share them in their photo stream they need to be “transferable” or “sub-license” them.

    In the above example the transfer and sub-license are a bit of a stretch, but you get the idea…

  • colorblindxs2

    Protection is my rescue

  • Frank Farrell39

    Well, very interesting I must admit but I cant see my images making a fortune somehow, interesting to know though!

  • HamPhotography

    Hopefully this is all that Facebook will do with most people’s images! For many people – especially those who aren’t artists/photographers/writers – you’re right, the T&Cs won’t apply in such problematic ways.

    Unfortunately, sub-licensable means that Facebook CAN give another company or person rights of marketing, advertising and production of the content. Even if they don’t, and just host and display as you’ve noted, they still can sub-licence. In legal terms, “transferable” means that the content can be legitimately passed from Facebook to another holder.

    There have been a few times where this may have occurred – this is a lot of 99% likely speculation. A good example is Cynthia Lee’s Facebook pictures appearing in the MailOnline with a Facebook copyright notice in the corners (you can see the article here http://www.dailymail.co.uk/news/article-2091989/Cynthia-Lee-having-throat-slit-picture-posted-Facebook-days-killed-herself.html). Whether Facebook sold the images is up in the air – but they most certainly sub-licenced or transferred them to the Mail Online.

    Perhaps an article about legal terms for photographers is a good idea – including transferrable, sub-licensable, copyright, etc. so that Terms and Conditions and contracts are clear for every person working in the industry.

  • http://www.chromaticdramatic.com/ Chromatic Dramatic

    Putting a Copyright logo on the image is clearly in breach of their terms and conditions (I say that without having read anything further than what was in this article). The copyright still remains with the creator of the pic. There is nothing in their T&C’s saying the Copyright passes to Facebook. Regardless, as a news item, there would be grounds for fair use of the images anyway.

    But you are right, a proper article (written by someone with the appropriate qualifications) would be good.

  • HamPhotography

    I think you’d find the discussions a lot of bloggers have posted about the Cynthia Lee case and other Facebook sub-licensing/transferring really interesting! A lot of people have the same concerns you’ve raised. The Facebook T&Cs grey area has gained a lot of online attention since 2009 (and probably before that – I haven’t looked too much into their old T&Cs before they changed them).

  • http://www.facebook.com/profile.php?id=1283453508 Davide Greene

    Wonder if it is not directly posted to Facebook but a link to the picture ( with Thumbnail ) that is posted on a blog or Tumblr for example?

  • Nicholas Chang

    This doesn’t surprise me. Just look at some of the blog sites who make their money posting up meme after meme.

  • Paul Ronco

    My understanding is that placing a watermark, copyright logo or otherwise, on your image isn’t in breach of Facebook’s Terms and Conditions because Facebook doesn’t tell you what you can or can’t do with your content and a copyright logo can’t negate your User Agreement. Essentially the logo becomes nothing more than a design element, and Facebook could still use the image. But, a watermark on the photo makes the photo worthless to Facebook unless they wanted to try to reverse-engineer the logo with software, which they could theoretically do under the derivative works clause. As for the copyright not passing to Facebook, it does. If Facebook can do whatever they want with the image without paying you royalties, that is copyright by definition. But, it’s not an exclusive ownership. Both you and Facebook can do with the photo whatever you want. They can’t tell you what you can do with it and you can’t tell them what they can do with it.

  • Miss_Dahlia

    How do you add a watermark to a photo? Also, does anyone know of a general definition of what ‘IP content’ means? I’ve looked and all I can find is the definition of an IP address which is not what I was looking for.

  • Suraj

    Internet Packet content