Know_Your_Rights_Social_Media

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Know_Your_Rights_Social_Media

KNOW

YOUR

RIGHTS

ON

SOCIAL

MEDIA

Legal Considerations and More

A M E R I C A N S O C I E T Y O F M E D I A P H O T O G R A P H E R S


legal considerations

As you decide whether to post images or video on a

social networking site, you’ll have to keep in mind the

great difference between legal rights and technological

capability. Although we strongly recommend that you

read the Terms of Service (TOS) for any site before you

post your work, we want to warn you that the terms are

only one consideration. Although they provide some

shape to the legal landscape of your rights and the

rights of the hosting company and other users, they

are also limited in their practical effect for at least

four reasons:

1. Most of the TOS include language that gives the

hosting company the right to make changes to its

TOS without notifying you.

2. Many of the TOS contain very broad language,

and it may be difficult to determine where the

hosting company’s rights end.

3. The TOS may not be clear enough about what

one user is allowed to do with another’s content.

4. Many, if not most, users do not read the TOS.

They simply click through. In those instances, the

practical question is more about what people are

able to do with the content than what they are

allowed to do with the content.

These four limitations on the TOS are for the average

user who generally wants to respect the copyrights of

others. Unfortunately, if someone doesn’t care about

infringing someone else’s copyright, then matters are

even more difficult. As a matter of technological capability

is concerned, an advanced user can copy anything that

you can see or hear online. Certain functionality can

make it easier or more difficult to make copies, but

it doesn’t really constitute copy protection.

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For example, the Photobucket service provides a default

setting where others can freely copy media that is posted

on the site. However, it gives you the option to uncheck

a box, implying that others won’t be allowed to copy

your photographs. However, the fine print on the site

includes the following:

Uncheck this box to disable right-click save functionality

on images and prevent anyone who views your albums

from saving copies of your images or videos.

Note: If your images can be seen in a web browser,

they can still be downloaded by advanced users.

This option discourages viewers from saving copies,

but it does not completely prevent it. Also, this option

only applies to images when they are viewed in your

Photobucket album. It is still possible to copy files

that you share or embed on other sites.

Therefore, if there are images and video that

you want to protect from copying at all costs, then

you shouldn’t be posting them online. Our best

practices recommendations are tied to your reasons

for posting images on social networking sites and

your comfort level regarding the risks of others

making unauthorized copies.

L E G A L C O N S I D E R A T I O N S A N D M O R E 1


common terms of service

Before offering our posting recommendations, it’s helpful

to review the basic contours of the TOS. These are general

areas of common ground, but you should review the

specifics of each site’s TOS before posting.

1. The companies acknowledge that they are not getting

a copyright interest in any of your photographs. (When

discussing photographs, unless noted, the same would

generally be true for any media).

Representative example from MySpace:

MySpace does not claim any ownership rights in the

text, files, images, photos, video, sounds, musical works,

works of authorship, applications, or any other materials

(collectively, “Content”) that you post on or through

the MySpace Services. After posting your Content to

the MySpace Services, you continue to retain any such

rights that you may have in your Content, subject to

the limited license herein.

2. However, the companies do get a royalty-free license

to use the images posted until you either remove the

content from the site or terminate your account.

3. Most, but not all, of the sites allow you to have some

control over who will be able to view your posted content.

For example, Photobucket makes posted content avail-

able to everyone — even nonmembers who are outside

the Photobucket services — unless you mark your content

as “private” and then it is available only through the

Photobucket services. Facebook allows you to be even

more restrictive. You can limit your audience to

only those fellow Facebook members you’ve allowed

to be labeled as “friends.”

4. Subject to any restrictions you may have chosen,

the Companies can distribute their services through

all media outlets.

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There is also some common ground with respect

to how the TOS discuss the rights of other users with

respect to the content that you post.

1. Users are prohibited from infringing the IP rights,

including copyrights, of others.

2. Users have a right to report copyright infringement

to the company and the company has the right to take

down infringing material and/or terminate the account

of the infringer. (Termination is usually reserved for

repeat infringers).

3. The procedure for reporting and acting on allegations

of copyright infringement is very similar across all com-

panies and seems to comply with the Digital Millennium

Copyright Act (“DMCA”). Several expressly state that they

do comply with the DMCA.

However, in our view, many of the TOS could be more

explicit in stating what others can and (more importantly)

cannot do with the content posted by other users.

Photobucket and YouTube are admirably clear in this

regard. The Photobucket license provides a very broad

licensing of rights using concrete examples:

Photobucket and/or other Users may copy, print or display

publicly available Content outside of the Photobucket

Services, including without limitation, via the Site or third

party websites or applications (for example, services

allowing Users to order prints of Content or t-shirts and

similar items containing Content).

YouTube is equally clear in its more restrictive

licensing of rights:

Content on the Website is provided to you AS IS for

your information and personal use only and may not be

downloaded, copied, reproduced, distributed, transmit-

ted, broadcast, displayed, sold, licensed, or otherwise

exploited for any other purposes whatsoever without

the prior written consent of the respective owners.

The dramatic difference in the license rights granted by

Photobucket and YouTube underscores the fact that you

must read the TOS before posting your images.

L E G A L C O N S I D E R A T I O N S A N D M O R E 2


YouTube and Vimeo in Detail

Unlike some of the photo sharing sites on the Internet,

YouTube and Vimeo have admirably clear Terms of Service

(TOS) regarding what each of the companies is permitted

to do with your video and, perhaps more importantly,

what other users are permitted to do.

Both sites include language that seems very broad.

This YouTube language is similar to what is also included

on the Vimeo site:

For clarity, you retain all of your ownership rights in your

Content. However, by submitting Content to YouTube,

you hereby grant YouTube 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 YouTube’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. You also hereby 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.

However, both sites also make clear that these rights

are limited to the functionality necessary to provide their

services. Vimeo’s TOS has two sections. The first section

is called “Lawyer Speak” and is the official TOS. In the mar-

gin, they have “Vimeo Speak” which includes a summary

of the TOS in something that is closer to plain English.

Here is how “Vimeo Speak” describes the necessity

and limits of its broad language:

YOU MADE ‘EM, YOU KEEP ‘EM. YOU OWN

YOUR VIDEOS — ALWAYS.

In order for us to accept your videos and provide

the Vimeo services (all while following the law),

we need certain rights and licensesin and to your

videos, including:

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> Right to copy your video. Example: Vimeo content

is stored and passed through multiple servers, and

is served to multiple users on multiple machines

to allow our site to be up and running globally. Each

time we put your video on another server, we are

making a copy. This right lets us do that.

> Right to transmit, distribute and perform your video.

Example: to send your videos from server to server;

to show your videos to one or more Vimeo users

and to display your videos on vimeo.com (or other

websites), these are the rights we need.

> Right to create derivative works and modify your

video. Example: the Vimeo system works by transcoding

the video files you upload so that they may be stored

and served smoothly and properly each and every time.

When we transcode your video, we are modifying it and

making another version — or a “derivative” version. We

also may need to resize the video when displaying it

to users and are thereby ‘modifying’ it. These rights

let us do that.

> Right to incorporate your video into other works.

Example: the Vimeo site and player are also copyrighted

and protected intellectual property. We incorporate

your videos into the site and player. This right lets

us do that.

You also grant Vimeo the right to use a portion of any

video that has not been designated “private” for Vimeo

mashups or other promotional purposes such as our

Offline events or at conferences. Vimeo will not use

your videos for other commercial purposes without

your approval.

These rights and licenses are granted by you to us

for free, so we can provide you with our services.

When you remove your content from Vimeo, these

licenses to your videos terminate and we will no longer

show them.

By placing content on Vimeo, you also give Vimeo

users the right to view and use your content, as intended

through the normal functionality of the website.

L E G A L C O N S I D E R A T I O N S A N D M O R E 3


Once you get beyond the seemingly broad language, the

rights given in the TOS for both services are fairly curtailed.

Both providers limit their use to delivering your video

within the functionality of the service. (The one exception

is that both services also reserve the right to use your

video to promote the service.) Both sites also provide

that upon your removal of the content from their sites,

the license you have given them will be terminated and

they will, within a reasonable time, stop the delivery

and use of your content.

Both sites are also clear that other users of their

services have the right to watch your video content, but

do not have permission to copy, sell, or use the content

for commercial purposes outside of the service. The

one area where other users may benefit commercially

from your content is by embedding it on their websites.

This allows visitors to third party websites to watch your

video there instead of watching it while at Vimeo or

YouTube. Therefore, if your content is driving people to

someone else’s website, they might benefit commercially

from that activity. (Note that YouTube prohibits users

from aggregating embedded YouTube videos for the

purpose of selling advertising on a blog or website.)

To summarize, the TOS for both sites are relatively clear

and complete, and probably don’t contain a license of

rights that would surprise you. Nevertheless the problem

is, once again, the difference between legal rights and

technological capability. Although neither site allows

users to copy and redistribute copyrighted content,

both sites are full of copyrighted material that has been

copied and is being redistributed. Lengthy sections of

movies and TV shows are readily available, repurposing

of copyrighted material (aka derivative works) are

commonplace, and its easy to find a complete version

of just about any song you want to hear with a variety

of accompanying video content.

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What’s that all about?

There are three reasons for the disparity between what

is supposed to happen versus what actually happens.

1. The first is that even though neither YouTube

nor Vimeo want to make it easy for you to copy

the videos you see, there are many ways of

doing just that. There are a multitude of free software

applications available, which will capture video clips

that users are able to view online. So, the technical ability

to copy and keep posted video content is available to

everyone. Although normally only advanced users jump

through the necessary hoops to bypass copy protection,

the people who are familiar with editing and uploading

video might already be the type of users who are able

to make copies at will.

2. The second is that YouTube and Vimeo believe

they are protected by the safe harbor provisions

of the Digital Millennium Copyright Act. In short, the

Act states that YouTube and Vimeo need not police their

site to see if copyright violations are occurring. Instead,

they are not liable if they follow a set procedure for allow-

ing people to file claims of copyright infringement and

then respond to valid claims by taking down the infringing

content. Although some of the big media companies have

systems in place to detect their copyrighted content

and quickly get the content removed from the sites, the

average user won’t have the necessary resources to

find copyright violations.

3. The third is that many copyright holders don’t

mind the technical infringement. They want to get

their content spread far and wide for promotional pur-

poses. That is why a band might not want to distribute

songs for free over the internet, but won’t mind if a fan

posts a video of a live performance of the same song.

Because of the prevalence of copyrighted material

appearing at YouTube and Vimeo, users may assume

that they have a right to use what has been publicly

“broadcast” through YouTube or Vimeo. After all, not

many people are in the habit of reading TOS.

L E G A L C O N S I D E R A T I O N S A N D M O R E 4


est practices for

posting images and video

1. Decide why you are considering posting your

images or video on a social networking site. Do you

want a sample of your work to reach the largest possible

audience for free? Are you trying to advertise your most

prized photographs in the hope of selling prints?

Would you mind if people made unauthorized copies?

Would you mind if they repurposed and reused your

video content?

2. After determining why you want to post your images

or videos, read the Terms of Service (TOS) for the site.

Make sure you have a good understanding of what the

company and other users are legally permitted to do with

your media. Also, remember that most sites reserve the

right to make changes to their TOS, so you want to revisit

the TOS as appropriate. Look at other policies, such as

the Privacy Policy and the Community Guidelines (which

covers permissible and prohibited types of content)

to see if they are relevant.

3. Browse through the site to get an idea of its

functionality. Are there settings you can choose which

will provide you with some control over who sees your

images? Are there settings you can choose which provide

roadblocks to the easy copying of your original images

or videos? View work posted by other photographers

and see if it is possible to copy the photos and at what

quality. Find out if there are ways to track who is seeing

or copying or reposting your posted digital media. For

example, Vimeo and YouTube are constantly tweaking

and updating their services, so keeping current with

their offerings may be helpful. You might also consider

premium packages, such as Vimeo Plus, which involve

additional tools or services for a fee. These tools can

help you evaluate the effectiveness of posting your

work on these sites.

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4. After reading the TOS and understanding the

functionality of a site, including any attempts to provide

copy protection, decide whether you have chosen

the right social networking site. Every site handles

these issues differently, sometimes markedly so. If

you aren’t sure about it, consider other sites before

making your networking selection.

5. Once you decide that you want to post your digital

media, we recommend embedding each image

with copyright, contact, and other information.

This can be done in Photoshop. However, you should

know that some sites, such as Facebook and MySpace

strip that information as a result of the software they

use to manipulate and post files. You might also

want to consider adding an identifying watermark

to your images or include identifying information at

the beginning or end of your videos. If one of the

reasons you are posting images is to use the site as

a marketing tool, then providing an identification that

stays with your work is critical. Others might have the

right to repost images or have the ability to copy

and share your work on other sites or distribute via

e-mail. If the image goes viral, you want your name

attached to it.

6. If you don’t want people to have copies of high

quality images, you can also consider posting only

small, low resolution versions of your work.

7. If you become aware of misuse of your images

or videos, contact the site and begin the procedure

described in the site’s copyright violation policy.

If warranted, take legal action.

L E G A L C O N S I D E R A T I O N S A N D M O R E 5


Some Scenarios

To give you an idea of how your images may or may

not be used according to the TOS, let’s pretend we have

a photographer, Melissa, who has posted a photograph

of a cow on top of a lighthouse.

Can the hosting company create a coffee

table book called Stranger than Fiction,

which includes Melissa’s photograph?

1. Photobucket: yes. Twitter: maybe.

All other sites: no.

In our opinion, Photobucket TOS (as quoted here)

creates a license that is probably broad enough for

this kind of use by the Company. If Melissa changes

her mind and places restrictions on the photograph,

then further distribution would be limited to the

Photobucket services (which would probably make

the coffee table book a bad idea).

Twitter does not have the same kind of explicit

examples that Photobucket uses, but it does have

very broad licensing language:

By submitting, posting or displaying Content on

or through the Services, you grant us a worldwide,

non-exclusive, royalty-free license (with the right to

sublicense) to use, copy, reproduce, process, adapt,

modify, publish, transmit, display and distribute

such Content in any and all media or distribution

methods (now known or later developed).

This license is you authorizing us to make your

Tweets available to the rest of the world and to let

others do the same.

As for the other sites, they all appear to state that

the license given to the company is limited to the

companies’ services and that Melissa would have the

right to terminate that license at any time by removing

the content or terminating her account. In my opinion,

it would be hard to stretch the definition of their

services to include the sale of a coffee table book.

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Would a user, who owns a t-shirt company,

be able to use Melissa’s photograph to

create and sell a new t-shirt design?

1. Photobucket: yes. Twitter: maybe.

Same as in hypothetical A.

2. Flickr and YouTube: no.

Both sites specifically state that you cannot copy

or use another’s content for commercial purposes.

3. MySpace and Facebook: no, but not as clear.

Both sites state that users may not infringe another’s

copyrighted content. Unless there is express language

(as with the Photobucket TOS), copyright law would

not allow a user to copy a posted photograph and

make a derivative work, like a t-shirt. However, the

TOS are not clear enough. The type of infringement

they discuss is primarily, if not exclusively, directed

toward actions that take place on the site. For example,

a user may not post Melissa’s photograph and claim it

as his own. The lack of explicit language could create

confusion as to what rights Melissa has granted

to other users when she chooses to post an image

for them to see.

L E G A L C O N S I D E R A T I O N S A N D M O R E 6


Would a user, who thinks Melissa’s photograph

is the funniest thing he’s ever seen, be allowed

to launch an e-mail chain letter, which includes

the photograph.

1. Photobucket and Twitter: yes.

2. Flickr and YouTube: maybe.

I think that the negative implication of the language

prohibiting the copying or distribution of content

for commercial purposes, could give rise to an

argument that Melissa has granted other users the

license to copy and distribute her content for non-

commercial purposes.

3. MySpace and Facebook: still not clear.

MySpace is the same analysis as above. Facebook might

be even less clear because it seems to imply that once

Melissa has chosen to share her photographs with certain

people, they retain the right to keep it posted on their

pages, thereby sharing it with others. Even though this

might not grant them the right to send the photograph

to others via e-mail, the TOS could be more clear.

In conclusion, it is important to map out your goals for

social networking, understand your rights, and monitor

conditions as you navigate the rapidly changing world

of social media.

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acknowledgments

Legal Considerations

Christopher J. Reese, Esq.

Common Terms of Service

Christopher J. Reese, Esq.

Best Practices for Posting Images and Video

Christopher J. Reese, Esq.

Some Scenarios

Christopher J. Reese, Esq.

L E G A L C O N S I D E R A T I O N S A N D M O R E 7

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