But along with the reward of sharing your shots with a wider audience comes the risk that the host for the website you display images on may be able to use your photos in ways you don’t intend. Fortunately, you can take steps to protect your photos when posting them on the Internet.
Understand a site’s Terms of Service
Read through the TOS to determine if simply posting your content (a broad term that includes your photos) allows the site to take your copyright, or gives it a broad license to use your work for marketing or advertisements.
While trying to understand the fine print and official language of a lengthy TOS is not easy, you can quickly scan the page for certain key terms while muddling through the legalese. Specifically, search for words such as “copyright” or “license” and read those sections more carefully. Language such as “copyright transfer,” “irrevocable,” “sublicense,” or a section discussing the site’s ability to use the content for “unlimited purposes, including for advertising, marketing, or promotion” should cause apprehension.
For example, Facebook’s TOS were of concern last year. At the time, its Terms stated the following:
By posting User Content to any part of the Site, you automatically grant . . . to [Facebook] 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.
This meant that Facebook could use an image of your dog that you posted on its site for Facebook advertisements without asking or paying you. Facebook also could sell a shot you took during your vacation to other companies for their use without your permission or compensation. This type of arrangement is unacceptable for many photographers, especially when companies have paid a significant sum for such uses in the past. Instead, the web hosts are getting free use of your art, usually without your knowledge and control.
It’s also important to check back and periodically review the terms—sites usually reserve the right to change their TOS, often without giving you notice. Facebook at one point revised its terms to say the following:
The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content . . . Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration . . . .
Fortunately, Facebook eventually updated its Terms to a fair provision, so that the company can no longer use your photos for advertising purposes or sell your photos to others. The Terms now read:
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:
1. 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.
While social networking and online gallery sites need the right to sublicense and to display, copy, and distribute your images in order for the site to operate, such uses should be limited to or “in connection with” fulfilling the purposes of the site. Specifically, when you post your photo on Facebook, Facebook has to provide a copy of your photo to the company that hosts its website so that others can see your photo. Facebook also has to have the right to display and distribute your photo on your Facebook page so that your Facebook friends can see it. But these rights should be limited to Facebook’s services; otherwise, Facebook gets more rights to use your photos than it needs.
Be smart about photo contests
Another time photographers should exercise caution is when they enter a contest. Photo contests can be a great way to get recognition for your work (and even win some prizes in the process). Unfortunately, many companies use photos contests to collect images cheaply for marketing and advertising purposes.
What these contests do is commonly referred to as a “rights grab.” The sponsor designs the contest rules so that just by submitting an image—even if you don’t win the contest—you grant the sponsor the right to use your image for any purposes without paying you. Therefore, when you submit your beautiful sunset shot to one of these contests, it can end up in a huge advertising campaign and you don’t get a dime for it. Some contests add insult to injury by charging you for entering photos.
Read the rules or terms carefully before entering any contest so that you know what rights you are granting to the contest sponsors. The same language as identified above, such as “copyright transfer” or “unlimited license,” are clues that the contest sponsors are taking more rights than you may want to grant to them.
Because these rights grabs contests are rampant, the Pro-Imaging organization has prepared a list of rules that it believes are appropriate and fair for photo contests. You can review Pro-Imaging’s “Bill of Rights for Competitions” at pro-imaging.org. Pro-Imaging also maintains a list of photo competitions that meet its Bill of Rights standards and a list of those that don’t.
Online sharing sites and contests make it fun and easy to share your photos and to get recognition for your work. Just make sure that you don’t take uninformed risks that could ruin those rewards.
[Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, photoattorney.com. These and other legal tips for photographers are in Carolyn’s book, The Photographer’s Legal Guide, available on her website.]