Copyright and fair use on the Internet is a tender topic right now, giving rise to heated debates, water-cooler exchanges, lawsuits and hearings, and the list goes on. In the meantime, in order to simultaneously protect the owners of the copyright and the web hosts and service providers, the DMCA was passed.
“What is the Digital Millennium Copyright Act?
The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to “circumvent” a technological measure protecting access to or copying of a copyrighted work. Another part gives web hosts and Internet service providers a “safe harbor” from copyright infringement claims if they implement certain notice and takedown procedures.” (http://www.chillingeffects.org/dmca512/faq.cgi#QID601)
That said if someone posts your image without your explicit permission, the web host must implement the “notice and takedown procedures.” Hypothetically, your image is removed and/or you are compensated and all’s well that ends well.
But what if you had agreed, without knowing it, to license your images to, for example, your social network sites?
You are. Every day.
If you read closely in the TERMS of your social networking sites, even apps like Hipstamatic or video platforms like YouTube, you’ll find that you have given them usage rights to your images that can be as generous as whenever, wherever, for the rest of time.
How do they get away with this?
For starters, most of us don’t read the Terms. Secondly, if we do read the terms we usually stop after a sentence much like this one “We (your social network or other) respect your copyright, acknowledge that you are the owner of your copyright and have in no way asked you to sign your copyright over to us.” For many of us, this seems to be equivocal to the understanding “don’t worry, you’re safe, stop reading here.”
But you’re not safe.
In the next line or in the ensuing text usually you’ll find something like this: BUT, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This example, with the especially disconcerting clause “now known or later developed,” happens to come from Twitter. Some sites, like Flickr, limit their wordwide, non-exclusive, royalty-free license “solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available.” In instances like the latter your consolation is that if they use your images without your consent or due compensation, like signage in Times Square, at least the image usage is in association with Flickr/Yahoo. Facebook grabs “an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (to)…use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works, and distribute” your images subject to your privacy and application settings. Unless you manually go in and change it, the default setting on your posts is “public” thereby giving Facebook license to use any images freely.
Worst case scenario?
Imagine the database of images these networking sites have amassed, then imagine that they decide to license them, like the next Getty or Corbis, and finally, imagine that you receive absolutely no compensation or even credit. It would all be perfectly legal after all you agreed to the terms when you uploaded your first photo.
Best case scenarios?
They’re not businessmen. You only uploaded very lo-res. They don’t have the necessary model releases. You watermarked the important images.
Do you upload to any of these sites/apps? Take a look at their TERMS.