Facebook Claims License to User Photos

Posted on 3/3/2008 by Julia Dudnik Stern | Printable Version | Comments (0)

Facebook, a popular social-network site, remains in the middle of a prolonged controversy arising from the its terms and conditions of use. Last November, users protested Facebook's liberal sharing of personal data. Now the anger has spread to images.

After the stabbing death of a Toronto teenager in January, several Canadian newspapers and TV stations obtained her photos from Facebook and ran them. Facebook, not the photographer, was credited as the source of the image. Photographers were not compensated for the use of images.

Facebook's terms of use, which must be accepted before using the site for networking, arguably account for such an eventuality. It states that users "automatically grant... 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, commercial, advertising, or otherwise, 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."

Predictably, the legal issue here is whether use in news media can be considered "in connection with the Site." University of Ottawa professor and Internet law expert Michael Geist does not think so, since the news article covered a person's death and was in no way related to Facebook or the services it provides.

Nor does reprinting images fall under Canada's fair trading exception, which is similar to the U.S. concept of fair use. According to The Copyright Act, use does not infringe on the copyright-owner's rights, if the owner is mentioned. Though credited as the source, Facebook does not own the images, which were published without their owners' consent.

The case also highlights that some members of the media have gross misconceptions of the legalities of image use. The city editor of The Globe and Mail, one of the Canadian papers that ran images from Facebook, told British Journal of Photography: "As far as we're concerned, those photos are in the public domain if they're posted on Facebook." If the distinction between "publicly accessible" and "public domain" is not entirely understood by journalists, what can be expected of the general public?

The pending case of Virgin Mobile's use of images from Flickr in an Australian ad campaign brings up similar issues. While this case revolves around the privacy rights of the photos' subjects, the larger question for publishers is whether or not an action is ethical simply because it is possible.

While the legal systems of several countries are attempting to sort out the copyright and privacy issues created by social networks, some publishers are taking the initiative to create internal image-use policies. In February, BBC adopted new guidelines, which state that "the ease of availability of a picture does not remove our responsibility to assess the sensitivities in using it. Simply because material may have been put into the public domain may not always give the media the right to exploit its existence."

Copyright © 2008 Julia Dudnik Stern. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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