Craig March 7th, 2008
Since it was created in February 2004, Facebook has grown into one of the biggest sites on the web, with 64 million active users and an Alexa ranking of 7, accounting for 6% of global internet traffic. A staggering 14 million photos are uploaded daily to Facebook, making it the worlds largest photo sharing site in terms of daily uploads. This is more than twice as many daily uploads as the next largest photo sharing site. If you don’t already have a Facebook account, you more than likely know someone who does. So lets begin this post with a look at Facebook’s terms and conditions, and how they apply to you as a creator of content. I’m going to frame this mostly in terms of photography, but it applies equally to any other user-generated content, be it video, audio, text or something else.
 Proprietary Rights in Site Content; Limited License
 All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of the Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company’s prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site.
It starts off simple enough. It basically says that everything on Facebook is the property of the Facebook company, the users of Facebook and anyone who has licensed their work to Facebook. As such, content cannot be sold, modified and so forth, unless it’s content that you have created yourself. It’s when we read a bit further down the terms and conditions page that we find the following.
User Content Posted on the Site
 By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
Hands up all those who have uploaded photos, videos, blog posts etc to Facebook, and either haven’t read the above terms or don’t understand it. If you hadn’t previously read it, well now you have. And for those that don’t understand it, let’s take a look in closer detail.
It starts off by saying that any content a user posts is in fact content that the user has the rights to post. Fair enough, that’s standard practice and basically tells you that anything you upload is content created by you, or content that you own the copyright to.
It goes on to say you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part).
So what does this mean? Uploading any content to Facebook gives them the legal rights to the content, to use as they see fit. It applies globally, and Facebook can display it, change it and sublicense it. Sublicensing means that you give rights of production or marketing of products or services to a person or company that is not the primary holder of such rights. It continues
and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
By uploading your content to Facebook, you are also licensing them to distribute your content, either whole, in part or as a derivative work. A derivative work is a new piece of work that is based on pre-existingwork. An simple example would be a movie that is based on a book. The book is the original work, the movie the derivative. To qualify as a derivative work, it must be different enough from the original to be regarded as a “new work†or must contain a substantial amount of new material.
According to the US Copyright Office, only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. By uploading to Facebook, you are in fact granting them that right - they become the owner of the work in the form that it’s posted as. Any derivative works they may produce - and I haven’t heard of any cases where they have - belong solely to Facebook.
Let’s look at one more phrase.
for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof
And lets compare that with the terms and conditions at Flickr which state such Content on the Service solely for the purpose for which such Content was submitted or made available.
On Flickr, uploaded content can only be used in the form that it was uploaded and only for promotion of the site itself - in such places as the Flickr blog or Explore pages. And they always link any content they post there to the users Flickr page.
But content uploaded to Facebook gives them the right to use it for any purpose. It’s not just restricted to site promotion. They have the legal right to use it however they want. They could sell it to an advertising company, publish it in a book and so forth. Any and all proceeds they receive if they do this (and again, I don’t know any cases where they have), belong solely to Facebook. Not only would they not have to pass on any money to the creator, they wouldn’t even be required to inform the creator that the work was being used in this manner.
Facebook, applications and third party websites.
One of the features of Facebook that helps make it so popular is the use of applications created by third parties. Many of these applications make use of RSS feeds from the originating site to reference content so that it can be viewed on Facebook. An example would be the application that lets a user display photos from their Flickr stream.
The usual way of doing this would see the referenced/linked image displayed, but the image is served from the original server - either your own server or a site such as Flickr, Photobucket, Youtube etc. If you right-click on any of the pictures on my site and select properties, you’ll see under the location information that they are being served from Flickr. This is where I’ve uploaded the photos to, and where I wish them to be served from.
However Facebook operates a little differently. Facebook reads the RSS feed, then duplicates the image (or other content) and stores it on its own server. You can test this yourself by viewing the properties of any image displayed in an application on Facebook - you will see that the source of the image is the third party website but the location is one of Facebook’s servers.
By operating in this fashion, Facebook forces you to grant it the same rights as you would if you uploaded the content to their servers. In other words, they can change, modify and sell the work without requiring the consent of the creator. Sticking with the example of the Flickr application, a photo hosted on Flickr can only be used by Flickr to promote that site. Including an application that displays your Flickr photos on Facebook gives Facebook the rights to do anything they want with those photos that are displayed on Facebook.
In closing, let me once again point out that I haven’t found any cases where Facebook has used these rights commercially. And it’s likely that if that did happen they would lose a large number of users immediately. The loss of trust involved could possibly outweigh any benefit that Facebook might see. That said, it still should be disturbing to photographers, writers, artists, musicians etc that by allowing your content to be displayed on Facebook, you are essentially giving up all your rights to that content, for as long as it remains on Facebook.
Tags: copyright, Facebook, licensing, rights
