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Losing Copyrights through Social Media

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The art world has a love/hate relationship with social media. On the one hand, there has never been a more efficient and inexpensive way to get creative works out to the public. Businesses can quickly push out imagery through tweets or Instagram posts to promote their brand. On the other hand, when uploading images to social media, the artist or copyright owner gives up control over their work. Is the risk worth it?

What are your Copyrights?

Before we can discuss the risks posed by posting to social media, we first must look at the rights artists are giving up. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. Those rights are automatic at the time of creation. Registration with the Copyright Office is not required. However, there are considerable benefits to registering creative works (See Planning for the Copyright Registration Process). These automatic rights can also be transferred to another person or business.  When a fine artist shows his or her work in a gallery, the artist gives the gallery the right to copy the work for promotional materials, the right to distribute those copies, and the right to display the work publicly, but only for a limited time. The scope of the transfer is detailed in the contract between the parties.  In social media, that contract is the Terms of Service (TOS) that every user agrees to when they join.

The Dreaded Terms of Service (TOS)

The breadth of rights transferred when agreeing to the TOS can vary substantially in each online platform. For example, real estate photographers should pay close attention to the TOS of their local Multiple Listing Service (MLS) since many take full copyright ownership of any photographs uploaded to the system. However, most social media platforms are not that aggressive, yet the rights transfer is still dramatic.  For this article, let’s use Instagram, one of the most popular image-based social media services, as a model.

The line in Instagram’s TOS that concerns copyright states:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.

One nice thing about the Instagram TOS, as well as one from its parent company Facebook, is that it does not use legal language.  It’s written so users can understand it without consulting a lawyer.  In the clause above, Instagram goes out of its way to not alarm the users stating up front that they are not taking ownership of the user’s content. Still, agreeing to the Instagram TOS gives Instagram significant rights as to how and where they may use uploaded images. If Instagram used your uploaded photos as part of their corporate advertising campaign, or to create a gallery show that promotes the company, they can do that and without compensating the creator. What Instagram cannot do is sell or transfer the full ownership of your image, since Instagram is merely a licensee, not the owner. However, Instagram also has the right to transfer its license to another person or company.

The Internet is a Sleeping Giant

Now that I have sufficiently scared you, let’s discuss the reality of the situation. While the TOS may seem onerous, it’s mostly designed to protect the company from mistaken or inadvertent uses.  It’s highly doubtful that Instagram would intentionally create a situation that would lead to a backlash amongst its users. Having an overzealous TOS doesn’t mean that Instagram will take advantage of its customers. The potential public relations nightmare would likely outweigh any benefit derived from using images without express permission. After all, it’s not as if the company can’t afford to pay for a license.

Just look at what happened to Instagram in 2012 when the company changed its TOS to allow sales of uploaded images. The criticism from privacy advocates, consumers, and the National Geographic Society resulted in the loss of a portion of Instagram’s user-base, which forced Instagram to drop the controversial TOS terms.

Unfortunately, while the threat of a customer backlash might keep Instagram in line, that can’t be said for the third party affiliates that have unfettered access to Instagram’s content.

The Olapic Problem

Most Social Media Platforms, including Instagram, allow third-party companies access to information through their APIs, which is a protocol that tells other software services how to access information within the social media platform. That content can be repurposed for use in other websites or mobile applications. Which material is made available differs for each platform. Some services, like Facebook, lock down most user content due to privacy concerns. Privacy is less applicable to images, though, so image-centric sites, like Instagram, maintain relatively open APIs. For example, in the Art Law Journal sidebar on the right, we show our Instagram feed. The software we use connects to Instagram through the API and feeds those images to our site. We choose to show our OrangeniusInc Instagram feed, but we could just as easily have created a feed based on a hashtag, which would show photos from other Instagram users. We can do this because Instagram users have agreed that Instagram can sublicense uploaded content, and we can receive the pictures because we have agreed to Instagram’s TOS, which lays out the rules for using the sublicense.

However, a new wave of companies, such as Olapic and Candid is emerging that collects, curates and pushes Instagram photos, or other social media images, to customers that have never agreed to  Instagram’s TOS.  And, these customers are using the images on their own websites to promote products or as part of advertising or promotional campaigns, not just as feeds.

For example, let’s look at how Olapic might use Instagram images to help its customers promote a product. The characters in this play are WeddingX – a wedding dress maker, Jenny the Bride; and Jeff the wedding photographer.

Olapic collects, and curates social media content that mentions its customer’s products so that its customers can show the content on its websites or mobile application.  WeddingX is an Olapic customer so when Jenny posted a few of her wedding photos, with Jeff’s permission, to Instagram with the hashtag “Amazing Dress from #WeddingX,” Olapic collected the photos and posted them on WeddingX’s Olapic dashboard.  The WeddingX product manager sees the photos and uses it as the main photo on the WeddingX website. About a year later, Jeff sees his photo on the site and contacts WeddingX, asking them to pay his standard licensing fee. WeddingX contacts Olapic who assures them that by using the Hashtag #WeddingX, Jeff gave Olapic an implied license to use the photo and suggests that Jeff read the Olapic TOS for more information.

Jeff is totally confused. He never agreed to Olapic’s TOS.  Jeff only gave Jenny the right to post the photo to Instagram.  So how can Olapic claim it has a license?

Well, when the photos were posted, Instagram received “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to use the pictures. And, Instagram provides a sublicense to any company, such as Olapic, that uses Instagram’s API. So, Olapic has a license to use Jeff’s photo.

But Is Olapic allowed to sublicense Jeff’s Photo to WeddingX.  That’s where the implied license comes in.

Implied license

An implied license is an unwritten license which permits a party to do something that would normally require permission from another party.  So, if a real-estate photographer takes photos for a broker to sell a house, then the implication is that the agent can use the photos in brochures, on a website, on TV or on a billboard for the purposes of selling the house.  The photographer cannot come back later and say that since the broker used the photo on TV, that requires and extra fee.

How dos that apply to Olapic?  According to Olapic’s TOS:

By uploading User Content and posting User Content that you have tagged with Brand hashtags to social media platforms, you grant to the Brand, its third-party service providers who provide content management services including Olapic, and its retail partners (collectively, the “Licensed Parties”) the worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable right to use your uploaded or Brand-tagged User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on its web pages, social media pages operated by the Licensed Parties, promotional e-mails and advertisements, and in other marketing, promotional and advertising initiatives, in any media now or hereafter known.

As Joel Rothman of Schneider Rothman Intellectual Property Law puts it in his article Losing Control of Your Copyrights:

“In other words, according to Olapic, when [Jenny] tagged [Jeff’s] photo . . . she gave [WeddingX]. . . a free license to use the photo for advertising without paying a penny! Plus, on top of all that, since both the Olapic and Instagram terms of service have indemnification provisions, if [Jeff] tried to sue either one, they might bring [Jenny] into the lawsuit and demand that she indemnify them from your claims! Now that’s a kick in the pants!”

Is the implied license a valid legal claim in this situation?  Maybe, but the only way to find out is to sue Olapic and that is the real secret sauce for companies like Olapic.  They know that the cost of a lawsuit is more money than Jeff would receive if he wins.  It is just too risky, so Olapic wins by default.

Is Olapic all bad?

Not at all.  Olapic does encourage its customers to get express licenses for particular uses and even provides a module that makes it easy for its customers to request licenses from the Instagram user. In fact, when companies make a license request, more than 80% of Instagram users agree. Unfortunately, many Olapic clients don’t make those licensing requests, which is why Olapic falls back on the implied license to cover themselves, regardless of how tenuous that defense might be.

___

The TOS and implied license issues are just some of the risks members of the art community must watch out for when using social media.  Are those risks too high?  That depends on too many factors to make any broad recommendations. Joel Rothman suggests:

“One possible response is for photographers to include language in their license agreements prohibiting their clients from posting licensed photographs on social media. Whether that will work in practice is another story.”

At the very least, the license agreement could prohibit the use of branded hashtags when posting images to social media, which would make it harder for companies like Olapic to find them. And of course, make yourself familiar with the TOS of your favorite social media sites so you can understand the risks involved.

Has anyone had trouble with their images on social media? Let us know in the comments section below.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

11 Comments

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  • I’ve noticed social media marketing companies asking Instagram users to put a special hashtag on their photos as a means to grant permissions to use their photos for their clients campaigns. Is this legally binding? Doesn’t seem like a proper way to grant permissions since the hashtag can be removed.

  • By the way, are you aware that it is not only social media websites that have these sorts of terms? Some Web hosting companies have them as well. Godaddy’s terms look almost identical to those of Instagram/Facebook:

    “With Respect to User Content (Other Than User Submissions).

    If you have a website or other content hosted by GoDaddy, you shall retain all of your ownership or licensed rights in User Content.

    By posting or publishing User Content to this Site or through the Services, you authorize GoDaddy to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. You hereby grant GoDaddy a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and GoDaddy’s (and GoDaddy’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that GoDaddy may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, GoDaddy shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or GoDaddy’s (or GoDaddy’s affiliates’) business(es).”

  • Would also like to say this: It is the myth that anything online is copyright free that feeds a lot of the infringement, so I wish articles would make clear that ‘losing control’ is not ‘giving up copyrights.’

    • That is true. Losing control is not a copyright transfer. I have also tried to point out the fact that everything online is not free. The downside of the internet is that there is a lot of misinformation that gets regurgitated. Regarding copyright, I think it has a lot to do with damages, as I alluded to in the article. If there are minimal damages, say the image is on a blog article that generates no income, then the damages are no more than the license fee. That isn’t enough money to sue over. Add to that, the fair use analysis of which one of the four factors focuses on whether the new work has an effect on the market of the old work. The idea being that if the work is so different that it creates a new market, that favors a fair use determination, but it is only one of the factors. But those ideas get diluted and confused to where people actually think if they aren’t using an image to make money, then they can use it. The reality is, it’s probably true, just not legally true. On the other hand, if people registered their works then they would have recourse since legal fees are paid for and there is a minimum return of $750 up to $30k. Since legal fees are paid for, someone could sue over a small infringement. On the other side, you get the Getty’s of the world who use scare tactics to overcharge for images. At Orangenius, we have some ideas that we believe can help, but we need to build market share for them to work.

  • What sites should be saying in their TOS is that these rights are limited to the performance of the service the member signed up for. E.g., you post an image on a site and they have the right to display it per your privacy settings, and perhaps use it in some way to promote their service, to allow ‘share’ buttons to work, etc. But NOT to allow 3rd parties, which is awfully vague, to have some sort of equal license to do as THEY please with it. This is the thing that many artists object to, that the TOS is so broad and vague. Infringement is enough of a problem without the sites you join adding to it. No one wants to find their work being used as an ad or illustration and then the infringer says they “found it on (fill in the blank with any social media site or search engine!)” as if that’s a legal defense. Many artists have resorted to watermarks, and just refraining from posting their work as much, or on some sites, because idiots think that these images are free to use, just because an artist needs to use the internet to market themselves. You would not see someone take stuff off Walmart’s shelves and say, “Well it was just out there for everyone to see so it’s ok to take it!” If stores had to accept that and could not do anything about shoplifting, you would soon see stores putting more goods behind locks, so you’d have to have assistance for every item. Just because browsing all the pretty images online is fun, like window shopping, does not mean it’s all ‘free.’

  • Maybe I missed something in reading the above. You say that it seems likely that Instagram would not actually want to give the photos to other parties, and that their terms are only for their own protection, yet they are in fact giving Olapic the right to use the photos for commercial purposes, so here we seem to have an example of a social media company doing what you say they would not want to do: risk creating a customer backlash. Isn’t that what might happen if enough Instagram users realized that their photos are being used for commercial marketing purposes?

    • Sorry for the confusion. What I was trying to say is that companies like Instagram are providing the API’s free to extend their feeds and content, but they aren’t necessarily trying to sell the content. The API’s provide a service that is very useful. For example, without API’s we could only see Instagram material on Instagram apps. The open API is a good thing, in my opinion. Api’s allow other companies to extend the platform’s usefullness. So on our site, we have our Instagram feed and Twitter feed, which are both accessed through APIs. However, we are cognizant that any Instagram material ahould be shown in th context of a social media feed, so we clearly indicate that it is an Instagram feed. Other sites might not do that or use photos as single images, out of context with no mention of Instagram, for the purposes of using those images to sell their products without giving any credit or liccesning to th creator or to Instagram. To be fair to Instagram, they cannot police the API users let alone other parties that are customers of those companies. However, it would be nice if Instagram changed their TOS to address the issues, which could make it easier for copyright holders to take action against companies that are using the images in ways that Instagram had not intended. To make that happen, enough users would need to complain about it.

  • Thank you for posting this.

    If Jenny had not had “WeddingX” as part of the text, would the situation be different?
    In other words, “WeddingX” seeing the dress without reference and using it. Just curious as an artist / image maker and not a photographer per se.

    • In this scenario, the tag is how Olapic finds the images it sends to its clients. Without the tag, it would be hard to know that the dress was a WeddingX dress. I have not tried Olapic so I don’t know the extent of the tools they provide, but it could be possible to use a system like this to search on related hashtags, like #wedding, and let WeddingX wade through the images. But that would be time-consuming and might also be difficult to know whether a particular dress was a WeddingX dress. For some types of companies, it might be easier. If you are a travel company, you just need travel photos. You could look for #Costa Rica for your Costa Rica web page or look for the #vacation for general images. I am sure I could probably build a travel site with beautiful compelling imagery all being fed to the site from Instagram, and never pay for a single one. My concern is that making claims around “implied licenses” fosters infringing uses. Olapic could take a higher road and require that their customers request and receive licenses when using images in certain contexts. Of course, Olapic couldn’t make it all perfect, there will always be misuse, but stricter Terms of Use would go a long way to reducing possible infringements.

  • API doesn’t usually give an app developer free reign on user content. For example section 11 of the Instagram API states:

    //Comply with any requirements or restrictions imposed on usage of Instagram user photos and videos (“User Content”) by their respective owners. You are solely responsible for making use of User Content in compliance with owners’ requirements or restrictions.//

    Most API terms have similar clauses. If photos are marked All Rights Reserved or have other notices in place, a developer violates the IP owner rights by pulling that content. If I’m not mistaken, Flipboard and some other apps were or are being sued for taking copyrighted content through an API without the rightsholders permission.

    • Admittedly, there are a lot of nuances that I couldn’t discuss in this article, but in general, using the API can’t give the user any more rights than those given to Instagram. I am not sure All Rights Reserved matters much though, since copyright is automatic and one could say rights are already reserved, except, the owner signed some away with the TOS.

      However, Instagram does add some limitations in the API, as you mention. https://www.instagram.com/about/legal/terms/api/ But the provisions have some leeway as far as interpretation, especially given the concept of the implied license. For instance, it also says” If you store or cache User Content, keep it up to date. For example, if a user marks a photo as “private”, you must reflect that change by removing the content as soon as reasonably possible.” So, if Jenny removes the Hashtag, does that remove the implied license and then shouldn’t the image be removed from the WeddingX site? Maybe, maybe not but I would bet most companies would say “not” otherwise, it could be a logistical nightmare for site developers due to possible images deletions on their sites.

      The API also says “Remove within 24 hours any User Content or other information that the owner asks you to remove.” Or “Obtain a person’s consent before including their User Content in any ad.” Is a product page an ad? You could argue both ways. Ultimately though, the real issue is that while there is a level of watchfulness and pressure that can be put on the social media site to keep it in line with user expectations, we have no idea who might be using the API nor who those API users might have as their customers. That makes it difficult to police the use of user content, and for some people, the risk might be too great to warrant uploading certain images.

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