One surprising statistic about Facebook is that every day, hundreds of millions of pictures are shared on the platform. While some photographers claim that uploading their photos under a creative commons license helps them gain exposure, many others have decided to forgo posting their pictures on Facebook altogether. The fact of the matter is that some important questions must be asked before deciding to share photos on Facebook. In particular, what are the dangers of uploading photos to Facebook? How can photographers protect themselves from image theft? We’ll take a closer look at everything you need to know before posting pictures on Facebook below.
- Overview of All Topics:
- Who owns the pictures I post on Facebook?
- What Do Photographers Need to Know When Posting Pictures on Facebook?
- Facebook Image Theft in Court
- What Should I Do If My Facebook Photo Gets Stolen?
- What Will EU Copyright Reform Mean for Photos on Facebook?
- Conclusion: Photographers Should Better Play It Safe
Who owns the pictures I post on Facebook?
While we’ve already mentioned that it’s common to hear of photographers who don’t post their pictures on Facebook, the reason behind it is actually quite interesting. While many photographers certainly refrain from sharing their work on Facebook to avoid image theft, there are also photographers who fear that, by posting their photos, they will be transferring ownership of their work to Facebook. Facebook doesn’t suddenly own your photos just because you’ve posted them to their platform. What is important to be aware of though, is which copyrights you grant to Facebook upon uploading your own work.
► Is this really the case though?
As we can see from point 3.3.1 of Facebook’s Terms of Use (as of April 2019) titled “Permission to use content you create and share”, Facebook doesn’t take ownership for pictures you post on their platform. Facebook specifically states that “You own the content you create and share on Facebook and the other Facebook products you use, and nothing in these terms takes away the rights you have to your own content. You are free to share your content with anyone else, wherever you want.”
The interesting part of this statement, however, is the last sentence, which states, “To provide our services, though, we need you to give us some legal permissions to use that content. Specifically, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content”
The legal validity of this clause in the General Terms and Conditions (GTC), however, is not fully understood. In the past, clauses like this have been declared invalid by the Berlin Court of Appeals after actions by consumer advocates. The reasoning behind their ruling is that sometimes Facebook’s clauses aren’t clear and understandable enough and thus violate transparency requirement.
Facebook Needs Some Copyrights
In reality, Facebook has a good reason for why they have decided to include their clause regarding uploaded photos. The reason is that, because of how copyrights work, only the photographer or author may duplicate their pictures and make them publicly available. If Facebook doesn’t want to violate a photographer’s copyrights, then they need a license, plain and simple.
Every time a picture is posted on Facebook, a copy of it is stored on Facebook’s global servers so that the photo can be retrieved everywhere at the same speed.
Without the license they mention in their Terms of Use, this act would be copyright infringement on Facebook’s part. In addition, images are also disseminated in previews and made publicly available by Facebook, which once again requires consent from the author.
What Does That Mean for Photographers?
Once you know this information, it becomes clear that Facebook isn’t out to enrich itself with your photos. In reality, their licensing practice primarily serves to ensure that Facebook’s functionality remains intact and photographers don’t completely waive their rights by posting photos on Facebook. Since the license granted to Facebook when a photo is posted on their platform is granted non-exclusively, the author can still reuse their pictures at any time and are still able to license images to others. By simply deleting the image, the use of it by Facebook as expressed in their Terms of Use is void.
If the image has already been re-shared by others, however, Facebook reserves the license further - even beyond the deletion of the original.
Now that we’ve established that Facebook needs the license granted in order to function at all, Facebook users must still weigh whether they can live with the Terms of Use in its current form. Ultimately, photographers decide themselves how they will distribute their photos.
What Do Photographers Need to Know When Posting Pictures on Facebook?
The use of social networks is commonplace in today’s digital era and the average user probably has little worried about legal consequences regarding copyright infringement when using these networks. Due to the nature and widespread use of social networks, it’s easy to forget the fact that Facebook is a public space.
► So, is it risky to post photos on Facebook?
The short answer is yes, due to the lack of control you have over your work, sharing your photos on Facebook definitely has risks. Many users think that they are only sharing photos with friends, but the number of these “friends” can get quite large and the ease with which work can be reshared to even larger audiences doesn’t nearly qualify as private use.
The dissemination of content that you don’t hold the rights to, within your circle of Facebook friends is not fundamentally legal. If you do decide to share photos of this nature, proceed with caution. As a general rule of thumb, your best bet is to never post photos that you have not shot yourself. Alternatively, if you’re sharing photos that you have shot yourself, beware that you run the risk of having no control over the distribution of your content. Even content restricted to “friends” can easily be made accessible to everyone on the internet. When others are involved, copyrights or personal rights can get violated quickly. If you have shared photos in the past, checking to see if they’ve been used without your permission is always an option. We’ve outlined how to do so in our ‘How to find stolen images‘ guide.
Facebook does not seem to expect users to upload third-party content, as the updated Terms of Use mentioned above clearly state:
"You own the content you create and share on Facebook and the other Facebook products you use (...)."
By assigning responsibility to the user, Facebook appears to want to protect itself against copyright issues. In addition, Facebook reserves the right to respect third-party copyrights and other intellectual property rights and to remove all content and information if it violates the policy or guidelines. A user’s account can even be blocked if they repeatedly violate Facebooks guidelines.
Facebook Image Theft in Court
According to copyright law, if you share an image without the consent of the author, it’s considered image theft, which obliges you to pay compensation to the author.
The district court of Munich (Judgment of 27.9.2017, Docket.: 142 C 2945/17) has dealt with copyrights infringement on Facebook and has formed a very interesting verdict. The case dealt with a politician who had shared two pictures on his Facebook page that were uploaded by his colleague. The politician unfortunately had not inquired about whether or not his colleague had been authorized by the photographer who took the photos to post them.
The district court formed a verdict in favor of the photographer and decided that sharing on Facebook is also falls within the realm of copyright law. By sharing the images on one’s own Facebook profile, the owner of the profile makes the images perceptible to people who visitor their profile. This case thus set the precedent that if you share an image on your profile that doesn’t belong to you without consent from the author, you are infringing upon the author’s copyright. In the politician’s case, trying to place the blame on his colleague didn’t help his case either, despite his argument that he assumed that his colleague had permission to use the pictures.
What we learned from this instance was that pleading ignorance doesn’t protect against copyright infringement. By taking this stance, the European Court of Justice, as well as German courts, are placing the responsibility of checking whether or not an image can be posted solely on the shoulders of the person publishing them. If someone posts work that they don’t own and claims that they didn’t know any better, then this is considered an act of negligence, which is enough to justify a claim for compensation.
This verdict is a major victory for every creator, because until now, the legal conditions regarding the use of foreign images on social networks like Facebook was very opaque. With this court case, at least one aspect of this area has now been clarified and social network users should align with the law accordingly.
What Should I Do If My Facebook Photo Gets Stolen?
Assuming that you’ve already taken our advice about how to protect images and your picture still pops up somewhere you didn’t intent it to be, the first step is to ask the person who published it to delete it. When doing so, the best practice is to establish a clear deadline for the deletion. Another option is to contact the operator of the platform and report the infringement, with the goal of forcing the person who published the photo to delete it.
At Copytrack you can submit social media cases manually – but only if your image has been used commercially. You can find out more information about how this works here.
It should come as no surprise that image theft on social media is already very widespread. What’s important to keep in mind is that it’s only worth complaining about if you are a well-known professional photographer who has suffered financial loss as a result of the illegal use of your photos. If you fit this profile then you stand a good chance if the case goes to court. Amateur photographers on the other hand have a far less chance of success in court.
What Will EU Copyright Reform Mean for Photos on Facebook?
Internet platforms such as Google, YouTube and Facebook will be required to block content upon becoming aware that a copyright infringement has occurred. For writers, authors and musicians to keep the proceeds of their work, this content may no longer appear on the internet without the consent of the authors once the new Copyright Act goes into effect in 2021.
The EU copyright reform will therefore largely affect websites such as YouTube and Facebook. In the current and final version of the reform, non-commercial platforms such as Wikipedia and small businesses are exempt if they are under three years old or if they make less than €10 million in annual revenue.
The copyright directive is aiming at making large platforms responsible for prevent copyrighted work from being accessible on their pages. In the event of a violation on their platform, they can now be found directly liable; a stark contrast with the way the legal system previously worked in regard to online copyright law. Due to the massive amounts of data that are shared on the internet daily, this would only be plausible with the help of so-called upload filtering, which means blocking copyrighted texts, images or audio files at the moment that they are uploaded.
Critics fear that the directive signals the end of the free internet and heavily warn against this type of censorship. European Parliament has acknowledged the situation and stated that “the allegation that legitimate content might sometimes be filtered out may be justified,” and is preparing to allow appeals for users to defend themselves against unjustified deletions or blockages.
Another fear concerns the satirical and creative usage of texts, images and audio files – such as memes. However, in implementing the directive, participating countries are required to protect the free uploading of “parts of works for citation, criticism, reviews, cartoons, parodies or persiflage”.
Conclusion: Photographers Should Better Play It Safe
When publishing your work on Facebook, you must always bear in mind that there is always a possibility of your work being taken and used without your consent. If pictures are distributed via the “share” function, they can simply be saved and reuploaded. Due to recent court proceedings, it’s clear that Facebook reaches the threshold for public use, thus making necessary for users of the platform to adhere copyright law. The question then remains, should I agree to Facebook’s murky Terms of Use policies and post my pictures on Facebook, or forgo posting on the social media giant’s platform altogether?
Written by Dr. Daniela Mohr
