**** Update: the 2nd part of this post is up as well, please check it out here ****

I don’t spend much time on Facebook. It uses my precious time, I get tired of blocking more applications and updating my notification settings.

Most of all, I don’t like the privacy issues but for photographers there is something even worse.

This article will detail the terms you signed for, what could happen with your images and why you could be breaking the law by uploading your wedding pictures to Facebook or even by sharing pictures you are selling through stock Agencies like Getty.

I am not a lawyer and some of the following might be incorrect in a legal sense. But most of it is clear to anybody. Read and shiver:

Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind it as well as technical info for photographers!

Signing your rights and income away without knowing

While changing yet another notification setting (No more emails for anything!), I noticed this FB message:

A Note About Your Photos

There is a false rumor circulating that Facebook is changing who owns your private photos. You own all of the content and information you post on Facebook. Learn More

That’s reassuring, right? Wrong. “Learn more” linked to the FB terms page, which states something much different:

Sharing Your Content and Information 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.

That sounds good, right? Of course, you own all the content, they could not state otherwise, as in the case of intellectual property rights, a photo is yours the moment you take it. This includes the copyright.

And yes, you can tell FB NOT to use your photos for advertising purposes through their apps.

But wait, can you really? Here is what is next in the terms, a tiny ‘addition’:

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.

So what does this mean?

In short: Facebook can do everything it wants and can legally do with your photos, videos, stories and everything else you might be able to add. Everything? Yes, everything.

For example, the above covers:

– Facebook can sell your pictures and stories to anybody (‘transferable’)

– They do not need to pay you for this, while they can charge what ever they want (‘royalty free’)

– They can license your images to anybody else, who also can sell your images . (‘sub-licensable’)

. (‘sub-licensable’) – They can do this all over the world (‘Worldwide license’)

– Even if you have deleted your photos, if you have ever shared any of it (which I think you do by default), they can still do the above. Forever.

Oops.

So that cute photo of your baby? Yes, it could be sold by FB to a news agency doing a story about children. That nice sunset photo? It could be sold to Getty who can sub-license it and FB will get paid for every use of it (commercial use included). And guess what? They do not have to pay you anything, FB gets all income for it, you zero.

It mentions ‘in connection with’. What does that mean? I do not know. It could mean that this is true as well for any site where you signed in using your FB credentials, so even off FB you are not safe.

Model releases

FB likely knows a small catch: of course they state that you own your images, as a photographer by law has the copyrights to all his images, even if he signs the commercial rights away by adding them to Facebook.

But the people in the pictures also have rights! That is why in order to sell an image to Getty or Corbis or Alamy or any other stock agency, you need a so-called ‘Model-Release’ (and actually for a lot of places like houses you need a ‘property release’ as well).

This model release needs to be signed by the model(s) in the picture, even when they are not clearly recognizable, so also when shot from behind or even when just a hand is in the photo. Without the release the photographer can still make posters, write books, have expositions etc (to promote the artist) and even sell the image for editorial use (current news, background stories), but he cannot license it for commercial usage.

This is to protect the model for being ‘used’ to promote something (s)he might not agree with and in places (s)he might not want to be associated with. Otherwise that bedroom shot of your girlfriend could be used in banners advocating porn sites, your vegetarian baby could be used to promote beef-flavoured processed babyfood etc.

Facebook is not a stock agency. Yet.

If FB would be really the devil, they could have put the requirement for model releases in the terms as well. This is what stock agencies do: they want a legal stick to hit you with in case a model later claims that (s)he never gave permission to use the photo while you said so.

The model sues the company using the photo (the one that bought a license to use it on a jar of erotic jelly), the company sues the stock agency (the one selling the photo to the company with a license to use it for whatever they want) and the stock agency sues the photographer for supplying a photo without the required model release.

Hey, you did not read that FB terms page anyway, right? So why didn’t they require model releases? For starters, they would know that nobody would upload anything anymore and users would quickly move on to the next hype.

Secondly, they know that any decent judge would never let them get away with this (meaning selling images to stock agencies and blaming the photographer when something happens), even though they would have the legal rights to do so.

But guess what? The model release is not needed for your cute cat pictures, the sunsets, the landscapes, your bicycle shots and much more. All these images can be licensed without a model release and as you have given your rights away, FB can do this and does not have to pay you anything for it. Same for that inspirational prose, that funny quote of your grandma, your intimate thoughts. FB can make a book of it and sell it, no problem.

Actually you ‘shared’ your rights with them, as you can still license your images and stories yourself as well, just as you also need a model release in order to use pictures of people commercially.

The grey area

Strangely enough you can give permission to Facebook to use your pictures for FB ads. That means somebody could see your face under a commercial advertisement, like you endorse not only the product, but the ad as well. You signed this away by signing up, unless you change the settings under ‘ads’ again. But if you allow this, FB apparently can also use images you posted of your friends, even if they never ‘liked’ a certain product or page, just because they showed up in the stream of somebody who did (you).

This is strange as FB never requires you the mentioned model releases, so theoretically they can use your friends to spam others, without a model release. The model could protest and maybe even sue, and it seems that FB would be at fault.

Rights managed and royalty free: your stock photography business could be in danger if you upload to FB

Photographers will know that there are 2 main ways to sell stock images. In short:

Rights Managed means that every use of an image is noted and controlled, that is why these images usually cost more and the photographer earns more. This prevents the use of a nice image to be used by competing companies and even provides extra income for the photographer when the same client decides to use the image again for a brochure or other additional use. This is a Good Thing. Royalty free means that the client pays once and can do whatever they want to do for it. Cheaper for the client, but they have the risk that their competitors use the exact same image.

As Facebook does not know about the past use of your images, they can only sell it as royalty free. So why would you care? Because it works both ways:

If you ever have uploaded a picture to Facebook, you will never be legally able to offer this image as a Right-Managed stock image to any stock agency. Think about that. As you cannot know what FB has done with your image, you will be breaching contract with your stock agency if they accept it as a RM image.

And automatically:

If your images are represented as Right Managed photos by a stock agency, you will be breaching contract by uploading them to Facebook.

You are not just promoting yourself as a photographer (which is allowed), but you are also giving FB the rights to sell your images, which is illegal as you already sold the images exclusively.

There could be FB ads with your images, while your stock agency sells the same image RM to a competitor for a large amount of money. Guess what happens when a client find this out?

Copyright, ownership vs user rights. Why Facebook’s wording is sneaky.

You might be giving away rights you did not even have…

If you hired a wedding photographer and (s)he made some great pictures, you might think you own the pictures. Wrong. Unless you specifically made a note in the contract (and most sensible photographers won’t let you), you own the prints you got even if you got a CD with images as well.

What’s the difference?

You are not even allowed to make more prints without a written approval and all good printing houses will ask you for this. As mentioned above: the photographer always owns the copyright to the images he shot, even if you are in them. It is easy for FB to state this as they have no choice, it would make all the terms invalid if they claimed ownership.

What you are certainly not allowed to do is to sell your expensive wedding or professional baby images to a stock agency. And guess what? If you upload them to FB, you do not just do that, but you are giving them away to a company that can do even more than a stock agency.

You are likely breaching your contract and breaking the law by uploading your wedding pictures on Facebook. A photographer in a bad mood (and there are more and more of these), has the right to sue you and claim damages as you broke the contract.

Same is true for sharing any image you do not own the copyrights of by the way, i.e. every image you did not take yourself, you do not own.

So now what?

FB loses the rights the moment you delete your content. That is the quickest solution. Actually, the quickest is not to upload anything at all. You can easily host a blog on your own or even get a free one at WordPress.com or similar places. Just make sure to check the small print if you want to keep any control of what happens with your pictures.

If you own a photography business, stay away from any website with such ridiculous terms with regards to intellectual property. If you care about your photography and about the ones in it (your family and friends), don’t share it on Facebook as you are sharing more than you might care for.

There is no such thing as a free lunch nor a free social website. Facebook needs your submissions and your actions so they can help advertisers sell stuff they think you need. The more material you supply, the more billions will be mentioned in the next financial article about FB.

Yes, they are worth a lot, because they get all these free gifts all the time: your photos and stories, including the rights to sell and make money of them.

Facebook is not a stock agency, yet. But the moment they want to, they can push many stock companies right out of the way as they have all this material and the approval from you to market it. Don’t believe that this just won’t happen because FB is ‘just a social website’. They are not: they are a multi-billion-dollar business and out to make money.

That is ok, that is what businesses do. What is not ok is that they hide behind hard to find or understand terms you sign for.

When they go public, their shareholders are going to demand even more money and the clever ones will get out rich, before it gets messy. Because it will.

Get your pictures out now.

**** Update: the 2nd part of this post is up as well, please check it out here ****

Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind it as well as technical info for photographers!

Tags: Facebook, Internet, legal, sharing, Stock, Stock business