Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter?

Well, it depends on what you mean as “own.”  Under copyright law, unless there is an agreement to the contrary or the photograph or video is shot as part of your job, a copyright to a photograph generally belongs to the creator.  As the copyright owner, you own the exclusive rights to display, copy, use, produce, distribute and perform your creation as you see fit and approve.  As the subject of the photograph, you have a right to publicity, which allows you to get paid for the commercial use of your name, likeness or voice.

But what happens when you decide to post that picture on the Internet — perhaps on Facebook or Twitter (using Twitpic), or some other social network or photo-sharing site?

You may be shocked to find out that once you post on these sites, that although you still “own” the photograph, you grant the social media sites a license to use your photograph anyway they see fit for free AND you grant them the right to let others use you picture as well! This means that not only can Twitter, Twitpic and Facebook make money from the photograph or video (otherwise, a copyright violation), but these sites are making commercial gain by licensing these images, which contains the likeness of the person in the photo or video (otherwise, a violation of their “rights of publicity”).

Facebook

Under Facebook’s current terms (which can change at anytime), by posting your pictures and videos, you grant Facebook “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any [IP] content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.  Beware of the words “transferable, sub-licensable, royalty-free, worldwide license.”  This means that Facebook can license your content to others for free without obtaining any other approval from you!  You should be aware that once your photos or videos are shared on Facebook, it could be impossible to delete them from Facebook, even if you delete the content or cancel your account (the content still remains on Facebook servers and they can keep backups)!  So, although you may be able to withdraw your consent to the use of photos on Facebook, you should also keep in mind that if you share your photos and videos with Facebook applications, those applications may have their own terms and conditions of how they use your creation!  You should read the fine print to make sure you are not agreeing to something that you don’t want to have happen.

Twitter

Twitter’s photo sharing service, Twitpic, just updated their terms of Service on May 10, 2011 (which, of course, can and will be updated at any time, from time to time).  By uploading content using Twitpic, you are giving “Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.”  You are also granting “Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.”

The terms go on to state that you also grant “each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.  The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.”

Twitpic/Twitter is probably more problematic than Facebook — They can sell your images and videos if they want!

First, there is no definition of “Service” on their site (they need to find a more detailed oriented internet attorney to draft their terms (Twitpic, call me)), so your photo could be used throughout the Internet.  More troubling is that your photos and videos may be reprinted and used in anything without your getting paid a dime – books, magazines, movies, TV shows, billboards — you get the picture!

Second, Twitter can create derivative works from your creations.  A derivative work is anything that is built upon your work (like adding your video to a TV show, putting your photo in a montage, etc.).

Third, even after you delete your photos from Twitpic, Twitter and Twitpic can still use your creations for a “reasonable” amount of time afterwards.  So what would be a reasonable amount of time to continue using your photo after you terminate the “license” if your photo or video is incorporated by Twitter or Twitpic in a larger work — perhaps forever if it would cost them money to remove!

Lastly, since Twitter/Twitpic can grant others to use your photos (and make money from it without paying you (remember the nasty word “œroyalty-free”)), even if you terminate your Twitter/Twitpic account, the rights they grant to others can never be terminated! Twitter has a deal with World Entertainment News Network permitting them to sell Twitpic content with no money to you!

Celebrities and celebrities-to-be, beware!  Your right to publicity (e.g. your right to get paid when others use your name, likeness, voice for commercial gain like product or sports endorsements) is stripped away each and every time you post on Twitter!  You or your intellectual property attorney should read the fine print before you post your photos or videos on Twitter or Facebook!

December 19, 2012 UPDATE

Instagram

Well Facebook was at it again (changing their terms of service for their latest acquisition, Instagram).  The proposed changes are to take place on January 16, 2013.  Basically, Instagram had a brilliant idea to generate money off the backs of their members.  The proposed terms of service explicitly state “To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.”

This means that Instagram can make money from advertisers that want to use your face or pictures of your loved ones on any advertising (TV, web, magazines, newspapers, etc.) and never pay you a penny!  Even worse, if you are under 18 (which means you don’t have the legal capacity to enter into a contract) you are making a contractual agreement that you have asked your parents permission to agree to the Instagram terms.  This not only is an egregious position (see discussion above about rights of publicity), but defies logic — Instagram acknowledges that minors can’t enter into a contract, but nevertheless for the under-18, force them to agree by (unenforceable) contract that they have permission anyway.  Go figure!  [Finally there is a reason to go back to the old 2-hour Kodak Carousel slide shows of aunt Sally's vacation.]

[December 21, 2012 UPDATE]

Instagram announced today that it was backing off of its proposed T&C’s to be able to sell content without paying the members.  But a closer look of their replacement terms of use are just as bad.  “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. . .”  This means that Instagram can still sublicense your photos to any company for a fee (without paying the member)!  And it gets worse.  For instance, let’s say a posted photo is of a celebrity.  Instagram then licenses that picture to an advertiser.  But then the advertiser gets sued by the celebrity for violation of their right of privacy (who in turn sues Instagram).  You the poster would have to indemnify Instagram because in section 4(iii) of the terms, “(iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.”  Bottom line – Instagram stil gets to sell your pictures without paying you and you can be liable in the event they have to return that money to the advertiser!

**This post is for informational purposes only, For legal advice contact a media/IP lawyer**
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47 Responses to “Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter?”

  1. [...] Orginalteksten, skrevet av en amerikansk advokat, kan du lese her: http://www.nyccounsel.com/business-blogs-websites/who-owns-photos-and-videos-posted-on-facebook-or-t… [...]

  2. [...] Orginalteksten, skrevet av en amerikansk advokat, kan du lese her: http://www.nyccounsel.com/business-blogs-websites/who-owns-photos-and-videos-posted-on-facebook-or-t… [...]

  3. Information on posting to Facebook and Instagram from a law office:
    In a nutshell, YES as the creator of a work… http://t.co/xeIRBFpR

  4. For en juridisk forklaring om eierskap til egne bilder på #some, se http://t.co/9YrVN4h5 @mhagelia

  5. RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter? http://t.co/wJWu4fsy

  6. RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter? http://t.co/nwZgIeDN

  7. RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter? http://t.co/mOGjIdqp

  8. Ursus Volans says:

    Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter? http://t.co/b2Dgh57G

  9. DForbes says:

    You post it, they can sell it w/o compensate or notify you. Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/Cn0aGXj4

  10. miss placed says:

    FYI @twitter has same terms of service as Instagram for use of user posted photos. http://t.co/4W5FNY8a

  11. Tybie Lipetz says:

    Lots of pple deleting their Instagram but still post on Twitter + Facebook? You gave ur rights away to those pics too. http://t.co/fCWHe8xf

  12. The WOO says:

    Twitter and facebook can use my photos. Like @Instagram ?
    http://t.co/t6wFegWh

  13. Perla says:

    RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/4bYKczAY

  14. the_mihalich says:

    @the_meshera Проблемы юзеров фейсбук не волнуют. Кстати ты про это в курсе http://t.co/QwKllRkn ?

  15. eduo says:

    @seohimanshu Or Facebook's, or Twitter's, or Twitpic's: http://t.co/irr4y72v /@aleyda

  16. If you think #instagram is bad read this:http://t.co/HiR78dvj
    Twitter has the same clause.

  17. RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/JdDr6LfL

  18. RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/8oH67Oku

  19. I don't know if this means anything but as I don't think it could hurt.

    In response to the new Facebook… http://t.co/RfuFlCj8

  20. Debbie Garay says:

    In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal… http://t.co/ggXMQqI7

  21. TechNetec says:

    @rg0rd http://t.co/DuuA6zFO sorry you can’t

  22. Patrick Fish says:

    You own the photograph you post on social media sites but by posting you grant them a free license to use it or sell it http://t.co/kCOBZ9rU

  23. @spinesurgeon @tamilravi ரொம்ப கஷ்டம். ஆளவிடுங்க. நான் குடுத்தது இதுதான்.http://t.co/EyhNl70S அதுல டிவிட்டர் பத்தி பேசி யிருக்காங்கோ..

  24. @spinesurgeon @tamilravi http://t.co/EyhNl70S முடிந்தால் பார்க்கவும். & some of them ToS have changed.

  25. I knew #facebook zucked! So does #twitpic.
    Total lack of respect to #creatives by companies that shld set right example http://t.co/SE3yX7sl

  26. Jaap says:

    I knew #facebook zucked! So does #twitpic.
    Total lack of respect to #creatives by companies that shld set right example http://t.co/SE3yX7sl

  27. digenger says:

    This is why I do not post too many pics of mine on facebook, and now I won't do so much on twitter and instagram http://t.co/iKWLZo5I

  28. This is why I do not post too many pics of mine on facebook, and now I won't do so much on twitter and instagram http://t.co/iKWLZo5I

  29. Who owns your stuff on twitter and Facebook? http://t.co/GYdGy6Dt

  30. Who owns your stuff on twitter and Facebook? http://t.co/GYdGy6Dt

  31. Nick Kirby says:

    Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/eCtSyS3L

  32. Weirdo says:

    Don't just give away your creative vision! read this if you want to know the truth about your pictures. Yikes! http://t.co/v6E60Axx

  33. Steven Meyer says:

    Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/B0T0IgIQ

  34. LACOUPE says:

    copyright of your images on twitter or facebook. http://t.co/BbDbB8M5 #copyright #images #twitter

  35. Angie S. says:

    Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/ClqTmAQ7 << Your question best answered by a law office, @l88lra >>

  36. Angie S. says:

    RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/ClqTmAQ7

  37. Who owns your photos on Facebook? http://t.co/CnrCLTI6 #copyright #Facebook #Twitter #notyou

  38. Hey #Instagramers, now that Facebook owns #Instagram, do your photos fall under FB's terms of service? Better read up – http://t.co/SlBMrrcZ

  39. Skip Lindell says:

    RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/9JR6kheQ This answered a few questions i had lately.

  40. Tim Pryor says:

    RT @CraigDelsack: Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/mfGZ3iF0 This makes for a really interesting read!

  41. Who Owns Photos and Videos Posted on Facebook or Twitter? http://t.co/M1k6D9uP – a must read..think twice about posting those facebook pics

  42. enlighten j says:

    New Twitter TOS fine print: they claim to retroactively OWN your content posted to it, including photos and videos. http://tiny.cc/lxx4o

  43. Joisha says:

    New Twitter TOS fine print: they claim to retroactively OWN your content posted to it, including photos and videos. http://tiny.cc/lxx4o

  44. New Twitter TOS fine print: they claim to retroactively OWN your content posted to it, including photos and videos. http://tiny.cc/lxx4o

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