If you are one of the many billions who frequents social media, then the chances are that at some point you have posted one (or more) of your photos online. It has become a way of life for many of us and one which some of us rely on to promote our abilities as amateur and professional photographers and moviemakers. It is a fast, effective and entertaining way to communicate with an eye wateringly colossal readership. Facebook, for example, recently reported that it has almost 1.9 billion active users. That’s 1.9 billion people who have the potential to access your timeline and its contents, including photos.
The legal bit
When you take a photo, you are the copyright owner of that photo. You do not need to do anything more for copyright to exist. You can attach the ‘©’ logo to your work if you so wish. As the owner of a photo, it is at your total discretion who then has permission to use it. If someone uses that photo without your permission you can pursue them for damages.
If you want to upload a photo onto Facebook you must first grant Facebook permission to display your work. Permission can come in many forms, and is granted here through agreeing to terms and conditions when you create an account. In legal terms, giving someone permission to do something on specific terms is called a ‘licence’. If you think about a driving licence, you are given permission to drive on the roads on the condition you adhere to the local road laws. A licence can be granted, revoked and should be monitored for compliance.
I haven’t given Facebook permission, have I?!
It is because so few of us actually read through terms and conditions that we are seemingly unaware of what we are giving up in return for use of the website. Clause 2.1 of Facebook’s terms and conditions sets out that by using the website you are giving Facebook a “non-exclusive, transferable, royalty free… worldwide…” licence to use any [media] content that you post. This means that you have no ability to control where your photos or videos can be used. If another user ‘shares’ your photo, even once your account is deleted, Facebook may have the right to use the photo. If you are a professional photographer or if you have a photo with potential commercial value, your pictures can therefore be exploited by Facebook. Facebook does not therefore own any of your photos, but does have your consent to use them – for free – in just about any way they please.
I use Facebook to publicise my work – what can I do?
We know that Facebook can be an extremely useful medium for interacting with potential customers and for gaining exposure. The licence which you grant Facebook to use your photos could be seen as an opportune example of publicity that can be beneficial to you and /or your business. If what you are concerned about is being credited as the photographer (for publicity or for recognition) then it is advisable to lay a watermark over the whole of the photo so that it cannot be ‘cropped’ out. If someone is interested in commercially exploiting your photo, they would then have to approach you for permission to get rid of the watermark for a premium. Similarly, if your profile is ‘Public’ then all internet users can potentially access your photos. It may therefore be worthwhile checking your profile settings to protect against this.
If you suspect that Facebook has been using your work in breach of the licence you have granted then you may be able to claim a remedy. Although Facebook may have permission to use your photos – other users do not. If another user has used or replicated your photo outside of Facebook then this should be challenged. If this is the case then do get in touch with one of our Corporate lawyers – who may be able to help.
Our ultimate advice would be that if you have a photo that has a commercial value or that you would like to replicate and sell, exercise some caution about uploading it onto a social media platform. If you can retain as much control as possible, you limit the likelihood of having to challenge anyone else using your Intellectual Property.
I upload photos for my own private use
Facebook has the ability to use your uploaded photos if they may wish. If you are intent on using Facebook as a platform for uploading multimedia, perhaps treat it as if you were sending it to a magazine editor. Some photos (if seen to be desirable to Facebook) could be used and broadcast to the rest of the internet. If you have any photos that you want to keep ‘your own’ then be cautious about uploading them. Platforms such as WhatsApp and iCloud enable you to share your photos with others for free but the privacy laws in place ensure that the target audience is restricted only to those you send them to.
Keep it savvy
The social media industry is booming, there is no doubt about it. It is arguably now the most rapid and far reaching form of communication; with the ability to stimulate support for a cause and ‘virilise’ a trend in a matter of minutes. Nowadays it is commonplace for photos on social media to hysterically trigger responses with millions of interactions in only a few hours. Very recently, Beyoncé announced to the world that she was pregnant with twins through the medium of Instagram. That iconic photo in her green vale has now received the most interactions of any photo online ever – with just shy of 10 million ‘likes’ at the time of writing. Unfortunately for Beyoncé, unless she had negotiated a modified set of terms and conditions to the rest of us, Instagram presumably has a licence to use that photo in the same way Facebook has the right to use our uploaded photos. For free!
We at Mayo Wynne Baxter want you to be armed with knowledge of your rights and to be protected online so that you know that it’s okay to question things when something seems awry. It is our ambition to inform you so that you can remedy a situation without the need for legal professionals. If however you ever do ever feel like you need some assurance, feel confident that your local experts are only a tweet away.