A Viral Marketplace: Social Medias’ Rights to Use Original Content of Others

The practice of sharing photos, videos, and ideas via social media outlets has become habitual, if not expected. The realm of social media has seen exponential growth in the number of companies and users alike in the last ten years. However, many (and probably most) users, eager to use the most recent and/or popular social networks, do not stop to read the terms of service of these social media services. These eager social media users do not realize that, in expeditiously agreeing to the terms of service of these networks, they are assigning the copyrights to their intellectual property and likenesses to these companies.

The Terms of Service of Social Media Networks Strip Users of Valuable Rights.

Under United States copyright law, the creator of a work such as a photograph, video, design, sculpture, painting, choreography, and so on generally retains an exclusive bundle of rights to reproduce, distribute, perform, and display the work. The creator has these rights unless he or she made the work pursuant to an agreement, or it was made in the course of the creator’s employment. As a result, generally any original photograph or video a user posts to a social network begins as the exclusive property of that user.

Many prominent social media companies, however, have included in their terms of use language retaining licenses to the content that users post. For example, the current Terms of Service or Use of Facebook, Instagram, and Snapchat all include language which grants royalty-free licenses to the content that users post. A portion of the current Snapchat Terms of Use are as follows:

“You retain all ownership rights in your User Content. However, by submitting User Content to Snapchat, you hereby grant us an irrevocable, nonexclusive, worldwide, perpetual, royalty-free, sublicensable, and transferable license to use, reproduce, modify, adapt, edit, publish, create derivative works from, distribute, perform, promote, exhibit, and display such User Content in any and all media or distribution methods, now known or later developed.” [1]

Similarly, Facebook retains a license in user content. Unlike Snapchat, however, the licenses terminate when the user deletes his or her account unless the licensed content also appears on another’s profile. The specific language is included below:

“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” [2]

Finally, Instagram—which was acquired by Facebook in 2012—also retains a license to users’ content in its present Terms of Use, stating:

“Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service . . . .” [3]

But, it should be noted that, like Snapchat, the licenses Instagram retains do not terminate in the event the user deletes his or her account.

The problem is, while the terms of service or use are readily available online to any user, the terms of service do very little to educate the average user of what the verbiage actually means. It would be absurd to think that a user must consult a copyright attorney every time he or she decides to open an account on a social network. Not surprisingly, in implementing these click-through terms of use, social networks have effectuated perhaps the largest continuing waiver of copyrights in history..


What Rights do Facebook, Snapchat, Instagram, and Other Similar Social Networks Have to Exploit User Content?

When the users enter into licensing agreements with social networks by agreeing to their terms of use, they waive their rights to control the content as they are entitled under copyright law. Upon a waiver of these rights, social networks can use and disseminate a user’s name, likeness, original photos, original videos, and so on for lawful purposes, such as for advertising, without the user’s consent.

For example, imagine that a user posts a picture on social media of a mother and her healthy infant child right after the child’s birth. Subsequently, the social media provider sublicenses the picture to a hospital advertising the adverse effects of alcohol use on infants during the gestation period. The picture then appears on a banner advertisement on search engines every time someone searches “fetal alcohol syndrome,” or something similar. Because the terms of service of major social media networks retains rights in what users post, the mother and the child would endure the implications that the mother was irresponsible and drank alcohol during gestation, and the child suffers from the associated complications. The mother and the child would have no recourse against this sublicense.

Some social network users have brought legal actions in attempts to curtail social networks’ use of their content for advertising purposes. For example, in Fraley v. Facebook, Inc., [4] the plaintiffs alleged that Facebook unlawfully misappropriated their names, photographs, likenesses, and identities for use in paid advertisements without obtaining the plaintiffs’ consent. In that case, the named plaintiff, for example, visited Rosetta Stone’s Facebook profile page and clicked the “Like” button in order to access a free software demonstration. Subsequently, her Facebook user name and profile picture, which bears her likeness, appeared on her Friends’ Facebook pages in a “Sponsored Story” advertisement consisting of the Rosetta Stone logo and the sentence, “Angel Frolicker likes Rosetta Stone.” The Northern District of California denied Facebook’s motion to dismiss [5], but the parties ultimately settled before trial.[6] Unfortunately, cases such as these are currently few and far between and do not represent an entirely feasible vehicle through which the average social network user can combat the use of his or her intellectual property—especially in light of the language involved in the terms of use or service.

It is imperative, therefore, that social network users address this problem with a two-part solution: education and restraint. In the event the language is unclear or the user has questions, a quick Google search may generate summaries of the terms in plain English as well as articles explaining the legal jargon. The more educated users are about their rights, the more they can protect their intellectual property and likenesses. Second, users should exercise restraint in the amount and types of content they post to social networking sites. It would be prudent for users to refrain from posting embarrassing or otherwise unbecoming content due to the fact that it immediately becomes licensed to social networks for their use.

Artists, sculptors, dancers, painters, photographers, and companies that create and author copyrightable material must be especially wary of posting photographs and videos on social networking sites. The fact that the creators of these works have exclusive rights to reproduce, distribute, perform, and display these works is the primary reason those works have monetary value. While posting copyrightable material on social networks indubitably provides for nearly an infinite amount of exposure to the public, the artists, sculptors, dancers, painters, photographers, and companies are giving up the rights to the monetary value of the works. Consequently, it is important for creators of copyrightable works to protect their rights. They must take time to understand the rights they have in their works, to consult legal counsel if necessary, and to exercise restraint when posting.

When social network users enter into licensing agreements with social media outlets through click-through terms of use or service, they waive their copyrights to the content that they post. Although some controversies result in lawsuits, cases are relatively rare and do not afford users with a reasonable means of protecting themselves. Therefore, all users must educate themselves—including hiring legal counsel—and practice restraint in order to protect their copyrights in their works.

[1]               Snapchat Terms of Use as of July 22, 2015.

[2]               Facebook Terms of Service as of July 22, 2015.

[3]               Instagram Terms of Use as of July 22, 2015.

[4]               Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011).

[5]               This is true for all of the plaintiffs’ claims except for an unjust enrichment claim as to which Facebook’s motion to dismiss was granted.

[6]           See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 941-44 (N.D. Cal. 2013) (approving settlement agreement).

Image Credit: hidesy/Shutterstock