To post or not to post? That is the question.
This was going to be a comment in reply to Damian in our “comments” area, but we decided it really warrants its own article. Basically, the question is, “Just what rights do you give up in those social media Terms of Service (TOS) agreements”?
To be fair and in an ideal world, social media sites generally do need your permission to have your image on their servers and to have subcontractors possess those images so they can be seen on their network(s). Great. Then why not ask for just those rights? Instead, the social media site’s lawyers do what we call an “over reach”. Their lawyers – and they have lots of them – advise their clients to get many more rights than their clients reasonably would need. There is no “down side” to giving or taking, such advice.
Typically, social media sites do not state that the rights they are getting are only for specified purposes. They write the terms to their “agreements” in such a way, that they obtain for themselves the right to use your images as they see fit, for any purpose, INCLUDING selling those rights to third parties without your knowledge, consent and certainly without you getting any money.
We would have no problem if the rights they wanted where broad enough to cover their needs to service their sites. That’s easy enough to write, in plain English understandable by all. But we know from their actions (like stripping out metadata) that they see your images as content they can leverage. In other words, sell, use or license them for real money and not pay you a cent. So a majority of social media sites, take a bucket full of your rights so they can make money on what you have created and produced.
Think that’s far fetched? Look at the Huffington Post business model. Arianna Huffington made many millions of dollars by selling her site which was built and “kept fresh” by bloggers and photographers providing free content daily. Although Ms. Huffington made tens of millions of dollars, the photographers and journalists upon whose work she cashed in, received zero, zip, nada. Instagram or Facebook’s valuations, IPOs etc. are in the millions/billions dollar ranges. What they are selling are shares of stock in a company whose inventory and assets was/is provided to them free of charge.
So if I, as a homeowner living near a stadium, offered “free parking” on game days, with the open stipulation that I could use any parked car for my personal use and people actually parked their cars there, why wouldn’t I use those cars for my trips to the market or beyond? (Rolls Royces preferred by the way). Customers were told the rules and agreed to them. Saves me a car payment, gas, and insurance. Great deal for me. And hey, you got some free parking, didn’tja?
In the end, do we tell people to not post anything? Jack knows that such would be foolish and like spitting into the wind to tell photographers that. Where you are in your career helps to determine how you want to use social media.. Jack as an established photographer with many years in the industry doesn’t need to promote his work on social sites at this point in his career. A photographer in the beginning or middle of his/her career, or for a photographer who photographs high school seniors and social media is where their clients live, then social media might be a critical marketing tool. For best results, social media should be used wisely.
When Jack posts anything (but he’s more likely to put it on his website and then link to it rather than upload to a social site), his number one rule is to have everything registered before it’s on any social site. With the very rare exception of personal happy snaps, where time might be a factor and the images are something he wants to share, for whatever silly reason. But as Ed can tell you from the cases he gets, even happy snaps on the Internet have been appropriated (stolen) for commercial advertising. Successful advertising can and often does, use mediocre or even lousy, photography.
We are not intentionally being almost as vague as the social sites TOSs themselves. Rather Jack’s best advice is be cautious, really read the TOSs, especially regarding the licensing of rights. Be cautious, and be willing to say “no” sometimes. But always, always, register all your images. If Ed the lawyer had his way, no photographer would ever post anything ever unless it is has been registered – no exceptions.
#1 by Daniel Ernst on October 7, 2013 - 7:56 pm
You advise us to “always register your images” before posting them. Is registering them within three months AFTER publication just as good (legally)?
I have been working with someone at the US Copyright Office to properly register a collection of all my posted photos within the preceding three months on a quarterly basis.
#2 by Jack and Ed on October 7, 2013 - 8:13 pm
You’re correct, you do have a three month (not 90 day) window for published images and you’re fully protected. Registering published images can be a little bit harder, sometimes, and there is a limit on the number the Copyright will accept, but it’s definitely an excellent workflow if that’s the way you work. As long as you regularly register within that 3 month window.
To me, it’s just easier and faster to register before publication. I don’t have to edit, guess which images, or do much else. I don’t worry if I did or didn’t register an image that I’m using for an element in another image.
For me and my workflow, I prefer registering every image as unpublished.
If uploading images before registration and then registering the published images within the 3 month window works better for you in your workflow, than it’s just as good.
Either way, the most important issue is just having your images registered.
Let us know if you learn anything new or interesting from the Copyright Office.
Jack
#3 by Damian Vines on October 7, 2013 - 8:27 pm
Great insights and perspective thank you! I’ll be waiting with bated breath for any legal challenge that comes from Facebook’s use of IP uploaded by a user. It’s one thing to agree to a TOS and I feel it’s another thing for that agreement, or terms therein, to held up in a court of law should an argument arise. Can a company (anyone?) ask you to sign a TOS to give them the right to do anything they wish? At which point is the agreed upon terms unlawful or unjust and not binding? What if your car parking lot TOS had a small sentence in there that gave you the right to come to their house anytime after they agreed to your TOS, and “borrow” their car then? Legal? I’m assuming you’re going to say yes, I suppose I’m just voicing my concern and thinking out-loud to create a discussion.
I agree that everyone should be registering their images (I’m trying to get better 🙂 However, if what you’re saying is true, that Facebook does indeed have the right to sell or sublicensee my images them whether they’re registered or not (in this case) wouldn’t mater, right? What if I upload an image that I don’t have the right to upload? Meaning it’s not my IP, I’m not the copyright holder and therefore can’t grant license via the TOS? How can Facebook license or sell an image that isn’t mine, and the original creator did not agree to Facebook’s TOS? Facebook’s image coffers are inundated with images that are not the property of the original uploader. I see a field day with Facebook trying to track down whether or not the IP in question is actually licensable via the TOS. This is paramount to me parking someone else’s car in your parking lot and the original owner (who didn’t sign your TOS) claims grand theft auto when you drive it to the store.
I can see this topic getting out of hand, and costing me hundreds of dollars in legal advice fees, hahah. I really appreciate what you guys do here I love your book!
One more point.. so it’s generally understood that linking to a photo in a Facebook post that resides on another site/server and not uploading directly to Facebook will not give them the rights under the TOS? So we can link to our own websites and not fall victim so to speak?
Thanks as always!
#4 by Matt Timmons on October 8, 2013 - 1:26 am
Is the idea I had about watermarking one’s images before uploading to social media a bad idea? I understand not every teenager with a camera phone will do this, but for the semi-pros with good photos who want to increase their social network reach but not allow their images to be easily stolen, this seems like an easy solution.
Also, I’ve noticed the really pro-fashion photographers that I know don’t seem to be the slightest bit worried about the various social networks’ TOS. These photographers constantly upload top-level photos with pro models- all unmarked. Is this because they have powerful management and the clients who purchase photos via social networks don’t want to engage in that level of risk regarding using these images? Even though the TOS clearly defines all photos are subject to 3rd party usage?
#5 by Patrice Jervis on October 8, 2013 - 12:03 pm
I think I now understand why Miss Julieanne kost the Ps./Lr. evangelist facebook images are post altogether as 1 image
I am learning!
#6 by John Whitesel on May 23, 2014 - 4:44 am
Am I allowed to post sample photos or even entire photo shoots on my website, or do I need a signed model release first?