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Social Networking Sites: Sharing or Giving It Away?

Posted by Advocacy Liaison on May 29, 2015

Lisa Shaftel, National Advocacy Liaison

social media logosSocial networking websites are very popular. You probably use at least one already. There are LOTS of social networking sites. Some are interest-specific; some are geared towards sharing photos, artwork, videos, or music; and some are just general socializing. The more popular sites you may be familiar with include Facebook, Instagram, Pinterest, Flickr, LinkedIn, Tumblr, Google+, Vine, DeviantART, and Twitter, just to name a few.

Social networking sites and video sharing websites, such as YouTube, require users to register or create an account to participate/post, and in some cases to view user-members’ pages on the site. You’re asked to fill in an online form with some amount of personal information and then check the box that you agree to the terms and conditions (T&C) of the website. Of course, the T&C are never on the create account page… it’s a click away—and maybe another click on the T&C page to get to the nitty-gritty of some of those conditions. But, how many people actually dig into the T&C pages to find out what they’re agreeing to?

Beware of what happens with the copyrights to anything you submit or post on one of these websites. Dig deep and read the T&C carefully before you decide to post. Some sites claim unlimited non-exclusive license to use anything you post (although they don’t state that in such a straightforward way), and some claim full copyright ownership—an assignment of all copyrights—of anything you submit or post. Yes, anything you write, any images you post, any video, music, whatever. By checking the “I agree to all Terms and Conditions” statement on the account set-up page, you are agreeing to that license or rights transfer, even if you haven’t read it.

When you upload a file to the server of social networking or file-sharing sites, you are actually creating a duplicate file on their server. Since they technically now have a copy of your work, the website needs authorization from you—the copyright owner—to use that copy, including displaying it to others. They need to license usage from you so they can show it on their website.

Let’s look at the copyright and licensing terms of one social media website, and I’ll decipher what it means.

Facebook:

The Facebook copyright policy changes periodically. The “Date of Last Revision: January 30, 2015.” Statement of Rights and Responsibilities includes the copyright and licensing terms that you have agreed to by establishing a Facebook page. I’ve excerpted the terms that apply to copyright and highlighted them in red.


2. Sharing Your Content and Information

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. In addition:

  1. 1. 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.
     
  2. 2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
     
  3. 3. When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you.  We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information.  (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Policy and Platform Page.)
     
  4. 4. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
     
  5. 5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).

AND

17. Definitions

  1. 1. By “Facebook” or “Facebook Services” we mean the features and services we make available, including through (a) our website at www.facebook.com and any other Facebook branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins such as the Like button, the Share button and other similar offerings; and (d) other media, brands, products, services, software (such as a toolbar), devices, or networks now existing or later developed. Facebook reserves the right to designate, in its sole discretion, that certain of our brands, products, or services are governed by separate terms and not this SRR.
     
  2. 2. By “Platform” we mean a set of APIs and services (such as content) that enable others, including application developers and website operators, to retrieve data from Facebook or provide data to us.
     
  3. 3. By “information” we mean facts and other information about you, including actions taken by users and non-users who interact with Facebook.
     
  4. 4. By “content” we mean anything you or other users post, provide or share using Facebook Services.
     
  5. 5. By “data” or “user data” or “user’s data” we mean any data, including a user's content or information that you or third parties can retrieve from Facebook or provide to Facebook through Platform.
     
  6. 6. By “post” we mean post on Facebook or otherwise make available by using Facebook.
     
  7. 7. By “use” we mean use, run, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.
     
  8. 8. By “application” we mean any application or website that uses or accesses Platform, as well as anything else that receives or has received data from us.  If you no longer access Platform but have not deleted all data from us, the term application will apply until you delete the data.
     
  9. 9. By “Trademarks” we mean the list of trademarks provided here.

 

What it means

Facebook does not claim copyright ownership of any content posted by users. Whoever the rights holder of the content is still owns their work. If you post writing or images you created, you still own the copyright to your work. If you post written work or images created by other people, you don’t claim copyright to their work just because you posted it on your Facebook page. If you posted someone else’s work without their permission [display], you have infringed their work.

2.1 Terms explained:

  • •  Non-exclusive means not only Facebook; you can still grant permission to others as well.
  • •  Transferable means Facebook can give your work to others.
  • •  Sub-licensable means Facebook can give others permission to use your content without asking you AND charge others a licensing fee to use your content.
  • •  Royalty-free means Facebook doesn’t have to pay you royalties when it or whomever they sub-license your content to uses your content and makes a profit from it.
  • •  Worldwide means everywhere.
  • •  IP content means all intellectual property; anything protected by copyright, trademark and patent.
  • •  This license ends when you delete your content from Facebook means that your permission to Facebook ends. However, any content of yours that Facebook has already sublicensed to others may continue to be used by them.

17.1 Term explained:
These are all the different entities that Facebook may share your content with.

17.7 Term explained:
These are all the things you have granted Facebook (and all the entities in 17.1) permission to do with your content, including your art and photos. You are granting them all permission to create derivative works from your art and photos without notifying you, without paying you, without crediting you. And you’re also granting them permission to sub-license those derivative works to third parties without any additional permission from you, without paying you, and without crediting you.

If you don’t want to allow Facebook to do these things with our content, your choice is to not have a Facebook account. You have agreed to allow Facebook to take anything you post –anything you write, any images, any video- and use it, give it or sell it to anyone else without asking your permission. That permission (license) with Facebook ends when you close your Facebook account and delete all of your content. However, the sub-license continues with anyone else Facebook has given or sold your content to. This is one of the ways Facebook makes money.

Facebook has a page about copyright, with a short FAQ regarding copyright issues and posting content on Facebook.

If you find your own copyrighted content, such as your art or photographs, posted by someone else on Facebook without your permission, you can request Facebook to remove it. Facebook has an online wizard that serves as a DMCA Take-Down Notice for infringing use of copyrighted content.

Public access does not mean “public domain.” Public domain is a legal term meaning that the term of copyright protection of the work (literary, artistic, photographic, music, motion picture, and computer software) has expired and there is no longer any copyright ownership of the work. Display on the internet does not mean that the image is not protected by copyright.

Richard Prince opened a new exhibit at the Gagosian Gallery in NYC in 2014 of prints he made from screen shots of other people’s photos on Instagram. Prince has been sued for copyright infringement many times before, most recently by photographer Patrick Cariou [Cariou v Prince]. Much debate and misinformation is going around online and on comment boards about whether or not Prince’s use of the Instagram photos is copyright infringement, whether posting a photo on Instagram relinquishes copyright ownership (it doesn’t), and whether the rights of the people who are the subjects of the photos have been violated.

Instagram Terms of Service are similar to Facebook. Scroll down to “RIGHTS” for copyright and publicity rights terms. The photographer still owns the copyright to any photos he/she posts on Instagram, even if someone else chooses to “share” (post) the photo.

Understand that copyright [intellectual property laws] and publicity rights [privacy rights laws] are entirely separate legal issues and rights. The person who takes a photograph owns the copyright to the photograph. The person in the photo doesn’t have any copyright claim to the photo (think about it; if the photo was a flower, the flower couldn't claim copyright). Copyright is Federal law. Publicity rights laws (privacy rights regarding one's image or likeness) are state laws and are different from state to state. Some states don’t have publicity rights laws.

Publicity rights laws concern our right to privacy and to control the use of our image, such as a photo of ourselves. Celebrities and politicians have different terms under publicity rights than the average person who doesn’t expect to be photographed and publicized. Photographers often have people sign “model release” forms granting the photographer permission to take their photo and publish it.

In the case of Richard Prince’s use of photos he found on Instagram, the person who took the photo owns the copyright to the photo. The person in the photos may or may not have publicity rights concerning where and how their image is displayed. The Instagram Terms of Service clearly states that the Instagram user is responsible for not violating the publicity/privacy rights of the people in photos the user chooses to post; Instagram has no legal liability.

There is another perspective from the user community that believes that once you have shared your intellectual property on a social networking website, the community you shared it with has the right to continue to see or access it, and you, the author/creator/rights holder, shouldn’t be allowed to take it down, even after you’ve cancelled membership or account or page on a site. Some claim that giving up copyright ownership is the spirit of social networking. According to copyright law, you own the copyright to your work unless you sign an agreement stating once it’s posted you have given up your copyright forever and dedicated your work to the public domain.

What do you want? If you choose to show others something you’ve created, are you also giving it to the world for free, forever? As an artist or photographer, if you post your work on a social media website with non-exclusive licensing and sublicensing terms like Facebook or Instagram, you can never grant a client exclusive right to use of that image. Your image may turn up somewhere else at any time in the future as a result of the social media website’s licensing terms, including for a commercial use, and you’ll have no control over that. Read the Terms and Conditions on any website you post content to, and think twice before you post your images.

For further reading, here’s a terrific article on PBS.org by Kathy E. Gill, Who Really Owns Your Photos in Social Media? (Updated 2013 Edition)

 © 2015 Lisa Shaftel

Guild Protests Federal Agency’s Logo Design Contest

Posted by Rebecca Blake on May 21, 2015

SBIR/STTR logoThe Guild has sent a letter to the Small Business Administration protesting the federal agency’s crowd-sourced “Seed for the Future” logo design contest. The agency is soliciting a logo for their Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs, an “innovation effort focused on research-driven, innovative and cutting-edge small businesses.” In exchange for a logo which will be utilized in print, on various federal agency websites, and for conferences, events, television, and other media outlets, the agency is offering a $2,500 reward to the “winning” logo designer. The designer will also be recognized at the National SBIR Conference, in National Harbor, MD, but is expected to cover all travel costs. The contest rules stipulate that the designer will grant the agency a comprehensive, exclusive license to the logo.

The Guild’s letter points out the irony of the Small Business Administration promoting innovative small businesses, by underpaying small business owners (independent designers and illustrators) for speculative design work through crowdsourcing:

“Does the SBA believe that underpaying American artists for speculative design work through crowdsourcing is the acceptable means ‘…to build a strong national economy… one small business at a time?’”

Additionally, the proposed reward greatly undercuts the value of a logo design for an organization of this size, as is reflected in surveys published in the Guild’s Handbook of Pricing & Ethical Guidelines. Lastly, the contest rules require the crowdsourcing artists to take on liability for actions of a third party that may occur after the submission designs, effectively asking individual artists to indemnify a federal agency at their own cost.

Recognizing that federal agencies must be deeply budget conscious, the Guild proposes that the agency instead issue a Request for Proposal, including their overall budget, and follow accepted best practices in reviewing and selecting a designer. Perpetuating the unfair labor practice of speculative work and underpaying American artists through crowdsourcing is the height of irony, and undercuts the constituents – small business owners – the agency purports to serve.

The full text of the Guild’s letter can be read here.

Canada 150 Logo Revealed to Subdued Response from Graphic Designers

Posted by Rebecca Blake on May 01, 2015

Canada 150 logoAfter a controversial logo contest bitterly criticized by national design organizations, the Canadian government revealed its chosen 150 anniversary logo. The logo, a maple leaf created from a mosaic of multi-colored diamonds, is the creation of University of Waterloo design student Ariana Cuvin. According to the Department of Canadian Heritage website, Cuvin designed the logo to represent Canada’s 13 provinces, with colors and placement chosen to reflect the country’s history and diversity. The logo is reminiscent of the hugely popular centennial logo, created by designer Stuart Ash.

Response to the logo design has been muted; the Ottawa Citizen reported that most designers declined to critique the logo. There is a general consensus that the logo is an improvement over the original proposed designs, an assemblage of tired, overused imagery created in 2013 by Canada Heritage in-house designers and tested in focus groups for the astronomical fee of $40,000 CN. That earlier attempt drew the criticism of the Association of Registered Graphic Designers (RGD), who drafted a letter to complain that “Design is a process involving research, creativity, strategy and client participation. Without going through this process… any designs that are developed will fall short of what is possible.”

Unfortunately Canada Heritage’s response to the proposed designs was the announcement of the logo design contest, targeted to Canadian design students. As we reported in January, Canadian design organizations were outraged, and launched a “My Time Has Value” campaign to point out the hypocrisy of asking for spec work from students. While the campaign did not persuade Canada Heritage from continuing with the logo contest, the small selection of logo submissions – only 300 total – indicates that the protest resonated with students.

Cuvin herself has little to say about the controversy, other than she knew what she was agreeing to, and didn’t feel exploited. However, remarks she made to the Toronto Star — “It does kind of suck for a professional, this big project being given to a student… There’s a client, they chose what they liked, and it happened to be my design.” — indicate that she may not fully comprehend the concerns voiced by protestors. The design organizations are using the outcome as an opportunity to educate. Both RGD and the Graphic Designers of Canada have issued an open letters inviting designers to writer their local representatives about the value of design.

Copyright Office Publishes Fair Use Index

Posted by Rebecca Blake on April 30, 2015

Copyright Office logoIn response to widely recognized confusion regarding the doctrine of fair use, the Copyright Office has published the Fair Use Index. The index publishes cases searchable by jurisdiction and category, including type of work, such as Painting/Drawing/Graphic, etc., and use, such as Parody/Satire, News reporting, etc. Selecting search features pulls a grid of cases, with year, court, jurisdiction, category, and outcome listed. The case names link to a PDF with details of the case, including an outline of the background, and a breakdown of the highest court ruling on the case.

The index is a valuable resource for artists and academics hoping to get a better grasp of how the fair use doctrine has been applied.  For example, searching under Painting/Drawing/Graphic pulls up a wide range of cases covering all sorts of graphic use, such as Bouchat v. Balt Ravens (logo infringement), Cariou v. Prince (appropriation of photography – see the Guild’s amicus brief on this case), and Setzer v. Green Day (illustration infringement).

The index was developed support in of the 2013 Joint Strategic Plan on Intellectual Property Enforcement, the proposal released by Victoria Espinel, the White House’s former Intellectual Property Enforcement Coordinator. The Office intends to keep adding key rulings to the database.

Apple Sued by Artist for Trade Dress Infringement

Posted by Rebecca Blake on April 20, 2015

It’s a case that puts a twist on the familiar David vs Goliath, artist-suing-major-corporation-for-copyright-infringement story. As has been widely reported, Miami-based Brazilian pop artist Romero Britto is suing Apple, Inc. and the designers known as Craig & Karl for trade dress infringement and unfair competition. At issue is a brightly patterned piece of artwork created by Craig & Karl, and featured prominently on Apple’s “Start Something New” webpage, as well as in Apple stores. The “Start Something New” campaign features works created by well-known artists using Apple products; the offering by Craig & Karl is purported to have been made on an iPad Air 2 with iOS apps.

Romero’s lawsuit is unusual, in that he’s not making the common charge of copyright infringement. An excellent article by Steve Schlackman in Art Law Journal points out that the offending image does not appear to be derived from an existing Britto work. Instead, Britto is claiming infringement of trade dress, the distinctive visual appearance of a product or packaging (such as Britto’s use of brightly colored geometric patterns and heavy black outlines). According to Schlackman, to prevail Britto must establish both that his work is distinctive, and that consumers are likely to be confuse the Craig & Karl work with his.

According to the complaint filed by Britto, such confusion has already occurred; Britto’s business partners and collectors confused the Craig & Karl artwork with his. According to the Miami Herald, Britto’s own lawyer, Robert Zarco, first saw the artwork at an Apple store in China and assumed it was Britto’s. However, Britto appears to have a steep slope to climb in proving infringement; bright patterns and thick outlines have been utilized by numerous artists (Keith Haring and Walter De Morais come to mind). As Schlackman states, the true test of whether Britto’s work merits trade dress protection may occur should he ever submit it to the United States Patent and Trademark Office.

Below: Screenshots from the Britto’s gallery (top) and the Apple “Start Something New” webpage.

Romero Britto screenshotApple Start Something New screenshot

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