Facebook: Friend or Foe?
Most of us who take photographs post some or all of them on Facebook. I know one lady who has dozens of Facebook photo albums and tens of thousands of photographs posted on that social media network alone. Facebook and other similar sites can be very useful when trying to share your photographic prowess with others. But, is there something you don’t know about Facebook that could actually hurt you in the long run?
Different Types of Photographers
Many of you are probably wondering how much Facebook’s photo policies could possibly affect your life. Well, the answer to that question depends greatly on how you use the site. The simple answer is that there are two very different types of photographers in the world, and the level of effect Facebook can have on you depends on what kind of photographer you are.
First Type: Casual Photographer
A casual photographer is one who generally doesn’t get paid much or anything to take photographs. This photographer simply loves recording the world in their own unique perspective. This is also the kind of photographer that tends to post thousands upon thousands of photographs on Facebook, like the lady that I mentioned. Since these photographers don’t usually expect to make any money from photographs, they can be fairly oblivious to the effects that online service contracts might have on them. But, these photographers may have much more to lose than they think.
Second Type: Professional Photographer
A professional photographer is one that uses photography as a source of income. Many of these photographers post photographs on Facebook as a means of advertising and increasing their commercial income. Understanding the risks and benefits of using Facebook for business advertising is incredibly important for this type of photographer.
What is a Terms and Services Agreement?
Terms and services agreements are contracts that state that one party will provide a certain service to another party based on very specific terms. The professional photographers among you are probably pretty familiar with these agreements, because many of you have clients and customers sign this kind of release on a regular basis. However, you casual photographers need to be just as informed about what these contracts do and how they work as do your professional counterparts. As consumers, we have all probably clicked an “Agree” icon or button on various computer products and online websites hundreds if not thousands of times. Every time we click those little notices we are subjecting ourselves to a contract, and most of us are totally unaware of what is in those contracts. Sometimes that can be a very dangerous idea.
What’s in Facebook’s Terms and Services Contract?
So, now that we know the basics of what terms and services agreements are, let’s look deeper into what is contained in Facebook’s contract, in particular, and let’s focus on just a couple of terms that have real importance to photographers. Let’s start by reading over a portion of one of the actual terms from Facebook’s terms of service.
“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 all that legal mumbo jumbo actually mean?
First and foremost, you should notice that the term specifically states that it applies to photos and videos and calls those things “IP content”. A lot of you may be under the impression that, when a person or company admits that you have intellectual property rights to a certain photo or video, your rights are protected. That is not entirely true.
If you reread the section of the term that starts “…you grant us…”, you will notice a pretty large invasion on your property rights relating to any photos or videos you post to Facebook. In fact, the permission you grant by posting those items gives Facebook a license (or right) to use those photos or videos in basically any way the company sees fit as long as it can be said to be “in connection with Facebook”.
Does that sound scary? It should, but it gets even worse. By granting that license you are not able to ever make Facebook pay if the site makes money by using your property.
But wait, it gets EVEN WORSE. There is a little line included in this term of the contract that makes it possible for Facebook to give that same permission to anyone else it chooses anywhere in the world!
Surely that’s all the bad stuff that could happen, right? Wrong. Read the very end of that term one more time. What is that it says? If your photos and/or videos have been shared on other pages, even deleting them from Facebook doesn’t cancel the permission you gave them to make money from your property?!
So, is there any shot at a silver lining in this crazy contract?
I’m glad you asked. There is actually a little phrase in there that can help save the day. The term included above has the phrase “…subject to your privacy and application settings…” in it. So, how does that help you? Like me you have probably seen little chain letter style posts on Facebook about securing your pages by adjusting your privacy settings. Most of those are just pranks, but they contain a kernel of truth. If you want to protect your intellectual property, especially photos and videos, one of the best things you can do is adjust your privacy settings making it harder to share your photos and videos without your permission and your control.
But what if I’m trying to send stuff out to advertise my photography business?
Well, here’s where you need to get a little more tricky. There is a principle in the law that deals with what we call adhesion contracts. I know those are big words that probably don’t mean anything to most of us; so, let’s break down the idea some. This kind of contract is one where a stronger or more wealthy party forces a weaker or less wealthy party to sign a contract as is without negotiating the terms to any reasonable degree. That is essentially all most of these terms and services agreements are.
So what does that mean for you? The law says that those kinds of contracts should be read by courts in the favor of the weaker party. Between you and Facebook, you are almost definitely the weaker party, unless you are Google or Apple or Bill Gates. So, let’s see if there is a term that we can take advantage of in order to protect your photos.
“This Statement makes up the entire agreement between the parties regarding Facebook, and supersedes any prior agreements.”
Look at this other term from the same agreement posted by Facebook. This might be your salvation. This states that when you agreed to this contract the terms listed on Facebook’s site were all the terms that applied to your agreement with Facebook. It also means that anything that was different in a prior agreement is no longer in effect. This contract supersedes all prior agreements making them worthless. BUT it doe nothing to address any future agreements or modifications.
So, how do you take advantage of that oversight by Facebook’s lawyers? Well, for starters, when you add your photos and videos to Facebook, always post them as you want them to appear first. Then, after they’ve been uploaded and posted, go back and edit the captions or add a comment to each that is essentially a modification to the contract you have with Facebook. In that caption or comment, make sure to state that it is a notice that you reserve ALL intellectual property rights associated with the photo or video. Make sure that you state that you do not authorize the photo or video for any commercial or advertising use and require royalties from any profits that come from use of your content without expressed permission.
Now, a little disclaimer, taking these steps does not guarantee that you will be completely protected against Facebook or other folks on Facebook that might try to take your photos or make money on them. The safest thing you can do as it relates to social media to protect your intellectual property is not post it on Facebook or Myspace or any other site that does not expressly grant you royalties for any use of your property. But, if you feel the need to use Facebook to advertise or share photos and videos with friends and loved ones, as I do, then the notice I have described above is a good step to take to give your property maximum protection.
Well, there you go, photographers! It’s a dog eat dog world out there, and the realm of photography is no exception. Facebook can be a useful tool to connect with others and network with fellow professionals. But you have to be on the lookout, or someone is likely to take advantage of you. Pay attention to the terms that might affect your rights to the property that you have worked so hard to create. If they are unfavorable, then find ways to protect yourself. And always limit your exposure to things that might put your rights at risk. Happy Facebooking, everyone!