Note that this is an older post I've posted on my older blog around software development earlier in April 2012. As I am about to switch off this older blog, I am re-posting this here with some updates as it is still a valid topic around photography.
Recently I've talked with a friend about the legal notice [de] with added costs against a Facebook user. A third user has posted an image of a rubber duck on that users timeline. However this image violated the copyright of a copyright owner. Yes, you've read correctly: In Germany you can be sued for a photo that someone else has posted on your Facebook timeline.
This triggered the question whether it should be allowed to sue unlicensed usages of only private usage context? Should it be allowed that private users are sued for downloading and posting a picture on their Facebook page?
At first I thought about that like a user and my immediate response was "no", fair, non-profit usages of images should be allowed and not be subject to legal actions.
However as I got more and more into photography and therefore became also part of the copyright owner side I dug deeper into the topic and soon found critical problems around this thinking.
As user, who just would like to show off a nice image, you follow the typical human path: You think egocentric - about what concerns you and you stop thinking beyond this border.
So you want to share a photo of mine that you like (I love that you like one of my pictures - really!) and would like to show it to your friends on Facebook. You just download it from the web wherever I've published one of my images and upload it to your Facebook timeline and add some nice comments like
You even did not forget to attribute me, maybe even with a link to my blog - very nice. So from your point of view you did everything you could think of, right? You publicly expressed your love for my photo and even made clear that it was not shot by you, but by myself. Indeed a very respectful way of sharing.
"Oh, look at that nice image taken by Carsten Schlipf"
Did you read Facebook's terms of service where you agreed that you are the copyright owner of the uploaded image file on Facebook? So you just claimed that it is your picture by uploading it to Facebook. Well, you may have not thought about that - shall I be angry about that?
No, and that is not what would make me angry. However we are crossing your ego focused border right now.
By uploading the image to Facebook you claimed to be the copyright owner of that file and by that you signed a legal agreement between you and Facebook. Facebook is in the legal position to rely on that contract and safe to assume that it deals with the copyright owner since you just testified that implicitly by uploading the image file. For Facebooks legal department I even do not exist in the legal sense at all as I am not involved in this contract and therefore Facebook is not liable for the copyright violation you just committed - you are!
And now we are where it gets really worrying for me as the real copyright owner - the Facebook terms of service.
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). (Facebook terms of service, April 26, 2011)
So you grant Facebook the following rights to my photographs:
Transferable: Facebook can transfer the usage license to any third party vendor. E.g. they are able to license my photograph to an image agency like Getty Images (as far as I know Facebook does not do that, but legally they could).
Sub-licensable: Getty Images can license (sell) my photo to others, worldwide! In other words: Others can make real cash using my work without giving me a dime.
And it's your responsibility since you claimed that you are the copyright owner right before upload. So I could be nice (and I will be nice and will abstain from hiring a lawyer as far as possible) and ask you to delete the image from your timeline or file a DMCA notice. But:
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. (Facebook terms of service, April 26, 2011)
Given my image may be good enough that it attracted your friends to re-share it on Facebook I have a much bigger problem. Simply asking you to remove the image from your timeline is no longer enough - I have to ask everyone (your friends, their friends, and so on) that shared the image on Facebook or file DMCA notices. In case I miss a single post or one user refuses to delete the image, Facebook still has my image. And I am unable to simply ask Facebook to put my image down. In order to do that I would need a court order, read: I am forced to sue you, although I do not want to, in order to defend my copyright, just because you've published my image file with nothing bad in mind.
Want an analogy from the analog world?
Your neighbor pledged his bank that your house you are living in (and in fact owned by you) is his house and grants all of his asserted ownership rights to the bank. The bank starts to rent the rooms of your house to others and makes big money with it. So do other neighbors and some neighbors even grant the ownership permissions to more than one bank. What will you do once you notice this? Will you play nice on your neighbors and just ask them to stop doing this?
Unthinkable? Well, that's what happened with my picture above - of course in a much smaller scale and in the real world you cannot simply claim property rights by selecting a check box.
Facebook however is just an example. There are numerous sites, where you can simply share an image with similar terms of service. For example Pinterest had even worse terms for a long time until they changed them. Twitpic has terms similar to those of Facebook, although much more concrete.
I am perfectly OK in case you publish my image on your very own blog or something similar as long as you make sure that I am properly attributed and it's a strictly non commercial usage (notice however that showing ads on your blog makes this a commercial usage already as this generates income). However as soon as the terms of service of a third party company gets involved, things can get complicated.
Thank you for reading and respecting my copyright. And no - I haven't switched to the dark side of the force. To make it clear: I am strictly against using legal notices with the primary goal of making cash. I am a strong supporter of first legal notices that must be free of charge in case of copyright violations in non-profit contexts. But please think twice before sharing an image you've found somewhere on the web. At the end it's you who might get into the bigger trouble and it's the creator who does not want to sue you, but may be forced to do so for several reasons.
Disclaimer: I am not a lawyer and I may be totally wrong with my legal views expressed above. Comments are appreciated.