The art world has a love/hate relationship with social media. On the one hand, there has never been a more efficient and inexpensive way to get creative works out to the public. Businesses can quickly push out imagery through tweets or Instagram posts to promote their brand. On the other hand, when uploading images to social media, the artist or copyright owner gives up control over their work. Is the risk worth it?
What are your Copyrights?
Before we can discuss the risks posed by posting to social media, we first must look at the rights artists are giving up. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. Those rights are automatic at the time of creation. Registration with the Copyright Office is not required. However, there are considerable benefits to registering creative works (See Planning for the Copyright Registration Process). These automatic rights can also be transferred to another person or business. When a fine artist shows his or her work in a gallery, the artist gives the gallery the right to copy the work for promotional materials, the right to distribute those copies, and the right to display the work publicly, but only for a limited time. The scope of the transfer is detailed in the contract between the parties. In social media, that contract is the Terms of Service (TOS) that every user agrees to when they join.
The Dreaded Terms of Service (TOS)
The breadth of rights transferred when agreeing to the TOS can vary substantially in each online platform. For example, real estate photographers should pay close attention to the TOS of their local Multiple Listing Service (MLS) since many take full copyright ownership of any photographs uploaded to the system. However, most social media platforms are not that aggressive, yet the rights transfer is still dramatic. For this article, let’s use Instagram, one of the most popular image-based social media services, as a model.
The line in Instagram’s TOS that concerns copyright states:
One nice thing about the Instagram TOS, as well as one from its parent company Facebook, is that it does not use legal language. It’s written so users can understand it without consulting a lawyer. In the clause above, Instagram goes out of its way to not alarm the users stating up front that they are not taking ownership of the user’s content. Still, agreeing to the Instagram TOS gives Instagram significant rights as to how and where they may use uploaded images. If Instagram used your uploaded photos as part of their corporate advertising campaign, or to create a gallery show that promotes the company, they can do that and without compensating the creator. What Instagram cannot do is sell or transfer the full ownership of your image, since Instagram is merely a licensee, not the owner. However, Instagram also has the right to transfer its license to another person or company.
The Internet is a Sleeping Giant
Now that I have sufficiently scared you, let’s discuss the reality of the situation. While the TOS may seem onerous, it’s mostly designed to protect the company from mistaken or inadvertent uses. It’s highly doubtful that Instagram would intentionally create a situation that would lead to a backlash amongst its users. Having an overzealous TOS doesn’t mean that Instagram will take advantage of its customers. The potential public relations nightmare would likely outweigh any benefit derived from using images without express permission. After all, it’s not as if the company can’t afford to pay for a license.
Just look at what happened to Instagram in 2012 when the company changed its TOS to allow sales of uploaded images. The criticism from privacy advocates, consumers, and the National Geographic Society resulted in the loss of a portion of Instagram’s user-base, which forced Instagram to drop the controversial TOS terms.
Unfortunately, while the threat of a customer backlash might keep Instagram in line, that can’t be said for the third party affiliates that have unfettered access to Instagram’s content.
The Olapic Problem
Most Social Media Platforms, including Instagram, allow third-party companies access to information through their APIs, which is a protocol that tells other software services how to access information within the social media platform. That content can be repurposed for use in other websites or mobile applications. Which material is made available differs for each platform. Some services, like Facebook, lock down most user content due to privacy concerns. Privacy is less applicable to images, though, so image-centric sites, like Instagram, maintain relatively open APIs. For example, in the Art Law Journal sidebar on the right, we show our Instagram feed. The software we use connects to Instagram through the API and feeds those images to our site. We choose to show our OrangeniusInc Instagram feed, but we could just as easily have created a feed based on a hashtag, which would show photos from other Instagram users. We can do this because Instagram users have agreed that Instagram can sublicense uploaded content, and we can receive the pictures because we have agreed to Instagram’s TOS, which lays out the rules for using the sublicense.
However, a new wave of companies, such as Olapic and Candid is emerging that collects, curates and pushes Instagram photos, or other social media images, to customers that have never agreed to Instagram’s TOS. And, these customers are using the images on their own websites to promote products or as part of advertising or promotional campaigns, not just as feeds.
For example, let’s look at how Olapic might use Instagram images to help its customers promote a product. The characters in this play are WeddingX – a wedding dress maker, Jenny the Bride; and Jeff the wedding photographer.
Olapic collects, and curates social media content that mentions its customer’s products so that its customers can show the content on its websites or mobile application. WeddingX is an Olapic customer so when Jenny posted a few of her wedding photos, with Jeff’s permission, to Instagram with the hashtag “Amazing Dress from #WeddingX,” Olapic collected the photos and posted them on WeddingX’s Olapic dashboard. The WeddingX product manager sees the photos and uses it as the main photo on the WeddingX website. About a year later, Jeff sees his photo on the site and contacts WeddingX, asking them to pay his standard licensing fee. WeddingX contacts Olapic who assures them that by using the Hashtag #WeddingX, Jeff gave Olapic an implied license to use the photo and suggests that Jeff read the Olapic TOS for more information.
Jeff is totally confused. He never agreed to Olapic’s TOS. Jeff only gave Jenny the right to post the photo to Instagram. So how can Olapic claim it has a license?
Well, when the photos were posted, Instagram received “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to use the pictures. And, Instagram provides a sublicense to any company, such as Olapic, that uses Instagram’s API. So, Olapic has a license to use Jeff’s photo.
But Is Olapic allowed to sublicense Jeff’s Photo to WeddingX. That’s where the implied license comes in.
An implied license is an unwritten license which permits a party to do something that would normally require permission from another party. So, if a real-estate photographer takes photos for a broker to sell a house, then the implication is that the agent can use the photos in brochures, on a website, on TV or on a billboard for the purposes of selling the house. The photographer cannot come back later and say that since the broker used the photo on TV, that requires and extra fee.
How dos that apply to Olapic? According to Olapic’s TOS:
By uploading User Content and posting User Content that you have tagged with Brand hashtags to social media platforms, you grant to the Brand, its third-party service providers who provide content management services including Olapic, and its retail partners (collectively, the “Licensed Parties”) the worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable right to use your uploaded or Brand-tagged User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on its web pages, social media pages operated by the Licensed Parties, promotional e-mails and advertisements, and in other marketing, promotional and advertising initiatives, in any media now or hereafter known.
“In other words, according to Olapic, when [Jenny] tagged [Jeff’s] photo . . . she gave [WeddingX]. . . a free license to use the photo for advertising without paying a penny! Plus, on top of all that, since both the Olapic and Instagram terms of service have indemnification provisions, if [Jeff] tried to sue either one, they might bring [Jenny] into the lawsuit and demand that she indemnify them from your claims! Now that’s a kick in the pants!”
Is the implied license a valid legal claim in this situation? Maybe, but the only way to find out is to sue Olapic and that is the real secret sauce for companies like Olapic. They know that the cost of a lawsuit is more money than Jeff would receive if he wins. It is just too risky, so Olapic wins by default.
Is Olapic all bad?
Not at all. Olapic does encourage its customers to get express licenses for particular uses and even provides a module that makes it easy for its customers to request licenses from the Instagram user. In fact, when companies make a license request, more than 80% of Instagram users agree. Unfortunately, many Olapic clients don’t make those licensing requests, which is why Olapic falls back on the implied license to cover themselves, regardless of how tenuous that defense might be.
The TOS and implied license issues are just some of the risks members of the art community must watch out for when using social media. Are those risks too high? That depends on too many factors to make any broad recommendations. Joel Rothman suggests:
“One possible response is for photographers to include language in their license agreements prohibiting their clients from posting licensed photographs on social media. Whether that will work in practice is another story.”
At the very least, the license agreement could prohibit the use of branded hashtags when posting images to social media, which would make it harder for companies like Olapic to find them. And of course, make yourself familiar with the TOS of your favorite social media sites so you can understand the risks involved.
Has anyone had trouble with their images on social media? Let us know in the comments section below.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.