What To Do Before Posting Your Photographs On Facebook (Or Anywhere Else)

Either this week or next, Facebook will make it official that it will follow its new terms of use — the legal stuff buried in a link at the bottom of the homepage entitled “Terms“.  Who cares?

If you are a writer, photographer, musician or other creative type, you are likely to have a Facebook page and you definitely should care.

But, you don’t need to be a writer or other artist to care.  What you post today may be worth something tomorrow — whether by design or dumb luck.  If you are reading this blog and are under the age of 106, you are likely to be on Facebook or some other social networking site.  Facebook alone claims to have 200 million users and there seem to be enough social networking sites to fill a Costco-sized grocery cart.

Still, many creative people are using the enormous popularity of social networking sites to tap an international audience in hopes of creating a buzz that will promote his or her creations.  It is not uncommon for photographers, for example, to post pictures such as this one — albeit much cooler — on their page to generate interest.  Of course, this is not unique to photographers.  Writers,musicians and others who develop creative material regularly post their creations on social networking sites.

Perhaps because there are so many people who have posted their creative works on Facebook, amini-revolt took place when Facebook announced that it was changing the terms of use.  As theConsumerist reported, bloggers discovered that Facebook had changed its terms to arguably grant itself significant new rights to the creative works that users posted.  The change led several artists such as photographer, Jim Goldstein of San Francisco, to announce that they were removing their work from Facebook.

Facebook did back off of its broad terms and agreed to allow the Facebook community to chose whether to adopt the old set of terms or a revised set of terms.  Last Friday, Facebook announced that the tenative results (presumably subject to an inspection for hanging chads) showed that its users voted to approve the revised set of terms that are somewhat less broad that the ones that set off the mini-revolt.  I expect that we will hear an official confirmation of the vote soon.

So is it now safe to post your creative work on social networks?  I count myself as one who takesFacebook CEO Mark Zuckerberg at his word when he says that there was no intent to make a mass grab at the intellectual property rights stemming from user generated content.  But, you still need to get the terms of use right else a court may listen sympathetically and then rule:  “So sorry, too bad.”

I am still puzzled by the expansive language that has been adopted.  One who posts anything on Facebook still gives Facebook a license to use the work for almost any purpose.  This is in stark contrast to terms on MySpaceXanga and Bebo for example that more narrowly restrict the purpose for which the social network receives a license to use posted content.  Even better, Twitter expressly states that it does not claim any intellectual property rights over the material provided to Twitter.

For now, I think that someone who posts work that he or she created on Facebook should be cautious.  I don’t think that there is anything sinister going on at Facebook, but the legal language still does not match its public statements.  The terms are better at several other social networking sites, but they are still fairly broad so read the terms of any social networking site before posting your work and check periodically to see that the terms have not changed.  Take these precautions before you post and avoid hearing the judge rule:  “So sorry, too bad!”

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About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
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