Who Owns Your Online Photos? Why the Fine Print Matters

Flickr made waves when it announced that it would be making prints of user’s photos and selling them–and most photographers likely wouldn’t receive a dime. It may be a legal move, but to those who use the photo sharing website it’s a slap in the face, and a call to rethink copyright, sharing, and fairness in the digital world.

Legally what Flickr is doing is entirely above board. By selling large prints of any work posted to their site under the Creative Commons license, they’re merely taking art that is intended for general use and selling it. When you post your photos to the site you’re initially given six variations of Creative Commons licensing you can select from. Some might allow the photographer to be compensated, but many don’t.

For many in the community this doesn’t matter; they were giving away their art anyway. But for some, like Jeffery Zeldman, this represents a shift in the culture of the site:

As a photographer, I now have to choose whether to prevent people from using my photos, or prevent Yahoo from selling them. I can’t have both.

I want people to use my photos. That’s why I take them. I want that usage to be unencumbered. That’s why I chose a Creative Commons license. Some of the publications and businesses that use my photos make no money at all. Others make a little something. I don’t care either way. That’s why I chose a Commercial Attribution license. The license makes my work available to all publications and products, whether commercial or non-commercial. Fine with me.

But Yahoo selling the stuff? Cheesy, desperate, and not at all fine with me. I pay for a Flickr Pro account, and am happy to do so. That’s how Yahoo is supposed to make money from my hobby.

It’s a tale as old as time, or at least as old as people have been uploading photos to the web. As more users join sites, owners modify or capitalize on terms of agreement that give them license to profit from them. Instagram and Facebook have recently come under fire for editing their privacy policies and claiming ownership over the materials posted to their sites.

Instagram found itself facing charges in court, when California Instagram users brought a class action lawsuit against the site. They claimed that the term that granted Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to use users’ content was unfair. Alan Pate blogged for IP Intelligence on the issues of the case when the Instagram decision was facing an appeal. Namely, that the users who were now complaining were complaining about rules that had always claimed to be open to change:

Whether the lawsuit stands a better chance in state court is unclear.  Many of the terms at issue are similar to those on other popular social media websites. Further, as Judge Alsup pointed out in his dismissal, the pre-January 19th terms included an explicit “change-of-terms” provision, putting users on notice that Instagram could change its policy at any time and that it was then users’ responsibility to deactivate if they did not agree with the changes.   Even if Instagram emerges successful in state court, the two lawsuits as well as the public scrutiny to which Instagram’s terms have been subjected emphasize how important it is for social media companies to have easy to understand and well-defined policies.  Just as important, social media companies must clearly communicate how those policies and any updates affect their users.   Consumers are more protective than ever over their user submitted content, and as Instagram is learning, may litigate to protect it.

Instagram, though they would ultimately win all of its court terms-of-service battles, ended up issuing clarifications and eventually rolling back some of its changes, in response to the users’ complaints.

Although many users worry that their photos would be sold off to random sources around the world, the real concern may be far greater than that, says Gerald Ferguson at BakerHostetler’s Data Privacy Monitor, who applauds Facebook’s candor in calling them “data use policies:”

The significant addition to this Policy is an entirely new provision that, for the first time, permits Facebook to engage in unlimited sharing of your personal information with “affiliates” with the following language:

Affiliates

We may share information we receive with businesses that are legally part of the same group of companies that Facebook is part of, or that become part of that group (often these companies are called affiliates). Likewise, our affiliates may share information with us as well. We and our affiliates may use shared information to help provide, understand, and improve our services and their own services.

Legally, an affiliate could include a company in which Facebook owns a minority interest.  Facebook has not announced any new acquisitions, and there is no reason to believe that one is planned for the immediate future. But it is certainly plausible that this Proposed Policy is intended to pave the way for: (i) taking an ownership interest in advertising agency and (ii) immediately commencing complete sharing Facebook data with that advertising agency.

Given how much Facebook knows about its users, such an agency could be much more effective than current online ad networks which serve advertisements based upon your behavior on the Internet (which they deduce through cookies placed on your browser by websites you’ve visited and advertisments you’ve clicked).

Again: legally, these sites are in the right. Users enter into the site and sign a terms of agreement, and there’s no status update that users can use to undo that. If they don’t like it they don’t have to continue using the site. But as consumers become more aware of the copyright terms they’re giving up what there might be an invitation for more discussion about how copyright and ownership laws work in the digital age.

[Should we include a note about how we use Flickr creative commons?]