Sunday, July 1, 2012

Farewell to Facebook, at least for galleries and samples

Facebook LogoFacebook has been in the news lately, and for many, the news hasn't been good.

Privacy issues continue to be in the news, as Facebook continues to adjust and readjust user privacy settings, requiring users to constantly reassess Facebook privacy policies, settings' options, and how Facebook has changed user settings from prior user choices.

Lately Facebook not only added their own email service, but without consulting their users, unilaterally changed their users' default displayed contact email address to users' new email address, without so much as a simple notification of the change.

While it's true it's easy to change the default contact address back to the old one, I would ask why that should be necessary, why Facebook would decide to “tamper” with their users' contact address at all, and why Facebook didn't contact a single user, letting them know they made the change, and if not desired, how to revert back to their original address.

As a result of this chaos, I decided it was time to again review Facebook's “Statement of Rights and Responsibilities” which governs the contract between Facebook and its users.

For those Facebook account users who don't realize they have a legally binding contract with Facebook, let me assure you that you do, and you agreed to it, and its revisions when you “joined” Facebook.

In Part 2, Sharing Your Content and Information, Facebook states,
“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings,” but then they add the critical phrase, “In addition:”
It's that “In addition:” which catches users. That “In addition:” is critical.

The first “In addition:” is the critical one for photographers who wish to, or are already displaying their photographs on Facebook.

Part 2, subpart 1 states,
“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us 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.”
Facebook is saying that despite your ownership of your photographs and videos, by posting them on your Facebook page, or posting them elsewhere on Facebook via your membership:
  1. You are granting Facebook a royalty free, non-exclusive, right to use your photographs and videos worldwide at Facebook's discretion.
    1. Facebook can therefore use your photographs and videos for any purpose they desire, including commercial purposes, without compensation to you.
    2. Facebook can use your photographs and videos for commercial purposes, even if you used the content editorially, putting you in at least serious risk of having to defend a lawsuit, if you have no release to use the content commercially.
  2. That Facebook can transfer that license to any entity (person or company) as they see fit, and can charge their licensee for the privilege, with no compensation to you, whatsoever.
    1. The Facebook license transferee can therefore use your photographs and videos for any purpose they desire, including commercial purposes, without compensation to you.
    2. The Facebook license transferee can use your photographs and videos for commercial purposes, even if you used the content editorially, putting you in at least serious risk of having to defend a lawsuit, if you have no release to use the content commercially.
  3. That Facebook can grant unlimited sub-licenses to any entity or entities (persons or companies) as they see fit, and can charge their licensee for the privilege, with no compensation to you, whatsoever.
    1. The Facebook sub-licensee can therefore use your photographs and videos for any purpose they desire, including commercial purposes, without compensation to you.
    2. The Facebook sub-licensee can use your photographs and videos for commercial purposes, even if you used the content editorially, putting you in at least serious risk of having to defend a lawsuit, if you have no release to use the content commercially.
  4. Facebook defines “use” as, “… use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.”
    1. Therefore you are granting Facebook a license to use, copy, display, or distribute your materials, and your are granting Facebook licensees to do so, all without compensation to you.
    2. Moreover, you are granting Facebook a license to modify your work as they see fit, and create other derivative work(s) as they see fit, and permitting their licensees the same rights, all without compensation to you.
  5. Facebook defines “content” as, “anything you or other users post on Facebook …” Therefore, while it is not clear whether or not by posting a link to a photo or video gives Facebook a license to use that linked photo or video, in the opinion of many, Facebook would claim that right via their contract with you.
The license granted to Facebook ends when you delete your photos or videos, but it is not at all clear whether the transferred licenses or sub-licenses also end when you delete your content from Facebook.

In my opinion, this predatory “contract” Facebook users have with Facebook is nothing more than a rights grab to exploit photographers' and videographers' work for Facebook's financial gain, despite Facebook's protests that they are only trying to protect themselves from lawsuits by users claiming appropriation of photos and videos by Facebook due to the way their website and partners' websites work.

As a result of my review, within the next week, I shall be deleting my photos and videos from Facebook, to end Facebook's license to use them in any way, or give any rights to licensees or sub-licensees.

I strongly suggest to all photographers, including amateur photographers, and even vacationers, to consider the same, and be extremely careful about future photographic and video posting on Facebook.


Jim - Des Moines said...

I deleted my Facebook account last month. They are the most arrogant company on Earth.

Charlene - New York said...

Wow, I didn't know there was a contract and they could do that. I'm taking your advice. I'm going to open a Flickr account for my photos.

Liz - Fort Worth said...

I've been getting tired of the inane comments from friends on my Facebook page. This photo thing is the final straw. I'm going to dump my account tonight.

Thanks for the info Ned.

Harris - Boston said...

Just another reason to tell Facebook what they can do with themselves. When they totally reset my privacy settings last year, that was it for me. I didn't want to deal with them any longer.

Andrew - Winnipeg said...

I love Facebook and use it constantly, but this is a problem. I post photos all the time from my iPhone wherever I go so my friends know what's going on. Lately I've been posting my Canon Rebel photos on Facebook too. I got a great one last week of a sunset in Hawaii.

I don't want to give up Facebook, but I don't like that they think they own my photos. Maybe I'll only post iPhone photos. I don't know. How am I going to show my friends what I'm doing without Facebook?

Ned S. Levi said...

Andrew, you have to decide for yourself. You could always send a group email or text with photos to your friends.

Beth in Berkley said...

Andrew, how many friends do you have?

Andrew said...

Beth I'm up to 15,345 friends.

Ned S. Levi said...

Andrew, if you want to protect your photos from Facebook, put them in a gallery somewhere else and merely tell your "friends." where they can find them.

Beth said...

So they really aren't "friends."

Jon - Chicago said...

Why can't Facebook treat their users fairly and still make a buck?

Cynthia said...

Facebook isn't going to make money from my photos, but on principle, I'm dumping them.

Jerry said...

I love using Facebook. I'm not changing away from them for such a minor thing. They don't want my photos.

Walter said...

Ned, thanks. I just removed all my photographs from Facebook. I see you use Smugmug for your photos. Do you think they do a good job?

Dot - LA said...

Is Facebook really that bad? Ned have they actually taken any of your photos? If not why are you so hard on them. Why do you think they're out to make money on your work or other photographers.

This is the first time I can't agree with you.

I think they're just protecting themselves. I don't think it's a big deal or are trying to make money from their users.

Ned S. Levi said...

Dot, thanks for being a reader. I have no problem with anyone disagreeing with me, but I don't think you've looked at the facts.

If Facebook was merely trying to protect themselves, they would have certainly said that each user was granting Facebook a license for the photos and videos. That way they could be protected as photos were moved, copied, rearranged, etc, or thumbnails made by their software.

But Facebook went a lot further. The said that their license was transferable. Okay, if they were to sell the company, that would protect the sale some say, and while I disagree about that point, because I don't believe transferability is necessary, I'll skip that.

Then you get to the granting of unlimited sub-licenses. There is nothing about protection which need this. There is no reason they need to give themselves the power to sub-license.

It gets worse. They grant to themselves the right to distribute user photos off site to anyone they wish. They surely don't need that to protect themselves. And what's with permitting the creation of derivative work(s) from user photos. That one can only be construed as a way of making money from user photos and videos. There is nothing about that part of the contract that is for protection. It's only important for exploitation.

There is no doubt that in my mind that Facebook cannot claim these provisions are only for their protection.

To date, I have no evidence that Facebook has taken or used my photos posted on Facebook, but that doesn't mean it isn't happening or might happen. In fact, it could have happened, but I haven't tracked it down yet.

The provisions of their contract make it plain that they've set themselves up to be able to use and profit from the work of others without compensation.

I stand by my article.

Dot said...

I guess I didn't understand you article when I read it. You've convinced me after rereading the article.

Steven - SF said...

I had no idea Facebook put anything like that in their contract with us. They've stolen the value of our photos and videos. We may still own them, but the rights they've claimed for themselves have rendered the value of the photos and videos to zero.

I'm removing my photos this week.

Thanks for the well-written and well thought out article.

Vic - Duluth said...

I had no idea about this. Thanks Ned. I just finished deleting my photos from Facebook. I opened an account at Flickr and posted them there.

Jeff L said...

When I first found out about this, I decided to keep my photos on FB and keep an eye on it, and that still holds.

Right now, my opinion is that the contract was written by lawyers trying to indemnify against anything that could come up in the future, not an intentional rights grab. That doesn't mean it can't be used as such.

Unfortunately, FB is still the best venue for getting certain photographs out to certain sets of people without making them click on a separate link all the time - otherwise I would stick to SmugMug.

I'd like to see more pressure put on FB to give specific policies rather that insanely broad terms, but there doesn't seem to be enough interest.

Ned S. Levi said...

Jeff, thanks for your readership. Whether or not Facebook intends to use any photographers' photographs, amateur or professional, for their own benefit, they have established their right to not only do so, but have also established their right to sell and permit the use, of their users' photographs, to an unlimited number of individuals and businesses, and to be able to use the photographs anyway they see fit. All of this is without the possibility of any compensation to the Facebook user, who is the copyright holder.

According to attorneys who specialize in copyright law, Facebook's Statement of Rights and Responsibilities takes away a photographer's ability to control their copyright, and the rights thereof under US Copyright Law, and the Digital Millennium Copyright Act, and therefore severely devalues the worth of any photograph uploaded to Facebook.

Personally, I am unwilling to allow Facebook to devalue my photographs' worth, or be vulnerable to literally having my photographs' used without me proactively assigning their right to be used, or by me selling them.

It is certainly up to each person to use Facebook as they see fit. As a journalist, it is up to me, to help them make an informed choice of action.

As to pressuring Facebook to change their policy, I don't see that happening as long as Facebook users continue to multiply and use the service, and assume the Facebook/user relationship will be both benign and secure.

To me, Facebook's actions speak volumes, and I have therefore removed my photos, have never put on the site anything about me that I felt wasn't suitable for worldwide consumption, and set my privacy settings to err on the side of very high privacy.

Janice - Pittsburgh said...

Ned, I'm not removing my photos for now, but I'm not a very good photographer, and Facebook lets me allow my family, which is all over the globe, see what I'm up to.

I am very glad you wrote this article (and your others) and thank you for keeping us up to date about important photography issues.

Please keep it going.

Pixie Glore said...

Maybe instead of just delegating our content and walking away, we should do some collective bargaining and hire a copyright lawyer to battle this. If we all posted it and got people to send in $5 or $10, maybe we could just stand a chance at a better contract.

Ned S. Levi said...

PG, there is nothing to go to battle about with Facebook. They are completely within their legal rights to set the terms of use for their service.

Our choice as photographers is do we want to use their site or not, under the rules set.

Photographers are a very small segment of all Facebook users, so I doubt that we have very much power against them, to get them to renegotiate the rules. Most people post snapshots and just don't care if someone takes their photos, mostly because it would be rare if someone did take them.

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