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 “royalty-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!

**This post is for informational purposes only, For legal advice contact a media/IP lawyer**

Every few weeks, I get called by the media for an interview regarding a current news story.   On this particular day, I got a call from Catherine Holahan, a reporter with BusinessWeek.  Back in  2007, Jayant and Rajat Agarwalla created Scrabulous, the online Scrabble knockoff that became a smash on Facebook.  When Hasbro, which owns the North American rights to Scrabble, filed suit for intellectual property infringement, the brothers removed the game from Facebook after the social network received a takedown notice from Hasbro’s lawyers alleging that Scrabulous violated its copyright and, therefore, Facebook’s terms of service. The brothers then reinvented their game as Wordscraper.  But a board game is not only protected under trademark laws for its brand name of the game, but is also protected under copyright law with respect  to the expression of the game.

Would changing the name from Scrabulous to Wordscraper be enough to satisfy Hasbro? The change of the name could help them on the trademark side. The new name would have to be so that it is not confusingly similar to “Scrabble.”  The question would be, under copyright law, is the expression of the new game so substantially similar that it would still constitute copyright infringement?  I explained to the reporter that ideas are as free as the wind. Courts don’t enforce the protection of an idea, they will however, enforce the way the idea is carried out or expressed. For example, the creators of Superman can’t protect the idea of a super strong person who saves people from criminals. They can, however, enforce their rights if someone created a hero who wears a blue suit with a red cape and flies around saving people when not working at a major metropolitan newspaper. Generally, courts are looking at whether a plaintiff can prove substantial similarity and access to the copyrighted expression.  Read the full article, Scrabulous Now Wordscraper, Hasbro Still Suing, by Catherine Holahan, BusinessWeek.

**This post is for informational purposes only, For legal advice contact an internet attorney**