Who owns the copyright to photos on Facebook?

[Incref]

Completely hypothetical, I’m just curious.

So let’s say you end up with some sort of notoriety and a magazine wants to put embarrassing pictures in their publication, they approach your Facebook friends and offer the reimburse them for access to your profile. They take pictures you have put up of yourself without your permission and publish them, what is your recourse? I’m guessing in any situation they need permission from the owner (though not the person in said photo) to use pictures, or is this a situation where Facebook owns what you have put up?

[ivn1188]

The photographer owns the photos, barring a contract that the photos were works for hire. Facebook doesn’t own the photos.

However, Facebook’s terms of service allow it to use the photos for Facebook purposes – you grant them a limited license. The exact reaches of the TOS are pretty murky. They’ve said they won’t sell photos, etc, but they could perhaps use them in ads or some such.

[anson2995]

The copyright belongs to whoever takes the picture. Facebook does not own the rights simply because you upload to their site.

[standingwave]

INAL but I found this on some lawyer’s blog…

Facebook thrives (in part) because of the content users post there. But did you know that posting content gives Facebook a license to do whatever they want with your content?

• 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 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.*

In plain English, this means you’re giving up copyright control of your material. If you upload a photo to Facebook, they can sell copies of it without paying you a cent. If you write lengthy notes (or import your blog posts!), Facebook can turn them into a book, sell a million copies, and pay you nothing. This deserves careful consideration!

Facebook Isn’t Private, and 7 Other Things You Should Know « Legal Andrew

[ivn1188]

@standingwave

INAL but I found this on some lawyer’s blog…

Facebook thrives (in part) because of the content users post there. But did you know that posting content gives Facebook a license to do whatever they want with your content?

• 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 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.*

In plain English, this means you’re giving up copyright control of your material. If you upload a photo to Facebook, they can sell copies of it without paying you a cent. If you write lengthy notes (or import your blog posts!), Facebook can turn them into a book, sell a million copies, and pay you nothing. This deserves careful consideration!

Facebook Isn’t Private, and 7 Other Things You Should Know « Legal Andrew

That’s a bit overstated. Like I said, it’s sort of murky what they can and can’t do. Especially given their statements that they can’t do things like that:
Cnet article with quotes from FB execs

Furthermore, if they did try to profit off of user content, their TOS is by no means an ironclad barrier to infringement, unjust enrichment, etc. etc.

[Reply]

@ivn1188

That’s a bit overstated. Like I said, it’s sort of murky what they can and can’t do. Especially given their statements that they can’t do things like that:
Cnet article with quotes from FB execs

Furthermore, if they did try to profit off of user content, their TOS is by no means an ironclad barrier to infringement, unjust enrichment, etc. etc.

I wouldn’t trust much of anything a FB exec had to say. They’ve had a lousy record of user respect, especially when it comes to privacy.

From the Facebook Terms of Service:

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.

You own it, but they can do whatever they want with it until and unless you and everyone you shared it with deletes it. Not only that, they can grant the same permissions to anyone they feel like.

If you don’t want people to have access to something, don’t post it.

Even if a magazine violated copyrights or whatever, unless you’re the government or incredibly wealth, there’s pretty much no way for you to prevent it from being published. Sure, you could sue them for infringement and/or libel afterward, but by then the damage would’ve been done.

[Reply]

Also, IANAL, but fair use may be a defense in certain cases (like if they’re parodying you) and if you’re notorious enough to be considered a “public figure”, libel protections may not apply to you in the same way.

[ivn1188]

@Reply

@ivn1188

That’s a bit overstated. Like I said, it’s sort of murky what they can and can’t do. Especially given their statements that they can’t do things like that:
Cnet article with quotes from FB execs

Furthermore, if they did try to profit off of user content, their TOS is by no means an ironclad barrier to infringement, unjust enrichment, etc. etc.

I wouldn’t trust much of anything a FB exec had to say. They’ve had a lousy record of user respect, especially when it comes to privacy.

From the Facebook Terms of Service:

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.

You own it, but they can do whatever they want with it until and unless you and everyone you shared it with deletes it. Not only that, they can grant the same permissions to anyone they feel like.

If you don’t want people to have access to something, don’t post it.

Even if a magazine violated copyrights or whatever, unless you’re the government or incredibly wealth, there’s pretty much no way for you to prevent it from being published. Sure, you could sue them for infringement and/or libel afterward, but by then the damage would’ve been done.

That’s completely untrue. You can get injunctions fairly easily without being rich or the government. Furthermore, the infringing party would owe damages. This idea that the little guy always loses is just wrong.

And again, their TOS are unilateral and equivalent to a click-thru license. It’s of questionable use in contract law. Furthermore, if Facebook says “our TOS says X”, they will have a hard time arguing a different position, especially since it was straight from the company’s mouthpiece.

Your advice about being paranoid is fine; but some scary language on their part isn’t really that binding.

[Reply]

@ivn1188

That’s completely untrue. You can get injunctions fairly easily without being rich or the government. Furthermore, the infringing party would owe damages. This idea that the little guy always loses is just wrong.

How would the little guy even find out about the story before it’s published?

And again, their TOS are unilateral and equivalent to a click-thru license. It’s of questionable use in contract law. Furthermore, if Facebook says “our TOS says X”, they will have a hard time arguing a different position, especially since it was straight from the company’s mouthpiece.

Could you rephrase that? I don’t understand.

Your advice about being paranoid is fine; but some scary language on their part isn’t really that binding.

But company spokesperson propaganda is? Are you saying a quote by one person in an interview has more power than a company’s written Terms of Service?

[ivn1188]

@Reply

How would the little guy even find out about the story before it’s published?

He usually won’t. But say Facebook publishes the next great American novel, and little guy finds out. He sues, they lose, they have to stop publishing, they pay damages.

@Reply

Could you rephrase that? I don’t understand.
. . .
But company spokesperson propaganda is? Are you saying a quote by one person in an interview has more power than a company’s written Terms of Service?

The only way the terms of service are binding is if you agreed to them. For instance, I can’t walk up to you and say, “If you look at me, you owe me ten grand” and then expect that to be enforced.

The TOS on a website is the same thing. It is close to what’s called an adhesion contract, where you really have no choice in the matter and no chance to bargain with them. You can’t really call up facebook and negotiate the terms of service, and it’s not clear that clicking a little box is equivalent to you signing a contract, especially when you likely didn’t bother to read it.

The efficacy of click-thrus hasn’t really been tested in court, and the one time that I am aware of where it was addressed, the court did not find it too persuasive.

So what I am saying is that Facebook can claim you gave them all these rights, but it’s not clear that their terms of service are really going to be upheld by a court.

Secondly, yes, the words of the company can be just as binding, or more so, than the text of their TOS. The law doesn’t generally let people say one thing, especially in a very public forum, and then do something else in court. If the CEO says “Our terms of service mean X”, and then goes to the court and says “Uh, we meant something different”, the court isn’t going to take that very seriously, especially where there is doubt as to what the language means, because a public statement is better evidence of the company’s thoughts at the time they made the contract than the statement presented in court, where they obviously have motive to be dishonest.

Finally, the TOS for facebook only includes facebook-related uses; publishing a novel isn’t really that sort of use, especially for profit. The bit about other people having to delete your stuff is a CYA for facebook to protect them from lawsuits if you take something down, but someone else has used it.

[dougjay]

Your example may not be a good one (at least for the common person) because if you gain notoriety you might possibly be considered a public figure. This might change things legally in some jurisdictions.

For example, Casey Anthony’s Facebook (or was it Myspace?) photos were published by news organizations. You must consider “Fair Use” laws.

[Reply]

@ivn1188

He usually won’t. But say Facebook publishes the next great American novel, and little guy finds out. He sues, they lose, they have to stop publishing, they pay damages.

Which is pretty much what I said. It’s not that the little guy always loses, it’s that he’s usually relegated to after-the-fact damage control.

The only way the terms of service are binding is if you agreed to them. For instance, I can’t walk up to you and say, “If you look at me, you owe me ten grand” and then expect that to be enforced.

The TOS on a website is the same thing. It is close to what’s called an adhesion contract, where you really have no choice in the matter and no chance to bargain with them. You can’t really call up facebook and negotiate the terms of service, and it’s not clear that clicking a little box is equivalent to you signing a contract, especially when you likely didn’t bother to read it.

The efficacy of click-thrus hasn’t really been tested in court, and the one time that I am aware of where it was addressed, the court did not find it too persuasive.

So what I am saying is that Facebook can claim you gave them all these rights, but it’s not clear that their terms of service are really going to be upheld by a court.

Secondly, yes, the words of the company can be just as binding, or more so, than the text of their TOS. The law doesn’t generally let people say one thing, especially in a very public forum, and then do something else in court. If the CEO says “Our terms of service mean X”, and then goes to the court and says “Uh, we meant something different”, the court isn’t going to take that very seriously, especially where there is doubt as to what the language means, because a public statement is better evidence of the company’s thoughts at the time they made the contract than the statement presented in court, where they obviously have motive to be dishonest.

Do you have a cite for that? I’m just surprised. (ETA: About spokespersons being more important than ToSes)

Finally, the TOS for facebook only includes facebook-related uses; publishing a novel isn’t really that sort of use, especially for profit. The bit about other people having to delete your stuff is a CYA for facebook to protect them from lawsuits if you take something down, but someone else has used it.

Where does it say that?

And how is anything Facebook does not Facebook-related? If they publish a Facebook novel, does that count?

[needscoffee]

My brother-in-law’s Facebook profile photo began spontaneously appearing on his Pandora page. Facebook was the only place that photo had been submitted to.