Do you ever share your images on social media sites like Facebook or Instagram?
Over the past twenty years or so, as social media sites and image-hosting platforms have risen and fallen in popularity, the way in which we share images has also changed.
Sharing images as attachments in emails is one of the oldest approaches, and as many of us continue to use email as a means of communication, this has endured over the years as other methods have come and gone.
But today, at least for personal images, it’s far more common to attach these to a WhatsApp message, send them to Instagram, or create an album on a platform such as Facebook.
But from the perspective of the permissions and licenses, what actually changes when you post your images to Facebook, Instagram, Twitter and other sites? What rights do you retain and what do you relinquish? And what happens when you delete your content or your account?
Many users would be unhappy to find their images used without their knowledge, although very few people (if any at all) take the time to read through all the small print that may give these platforms the right to do so.
Do you keep the copyright to your images on Facebook, Twitter and other sites?
Copyright is a broad and somewhat complex subject to explore fully. Thankfully, most social media sites make things simple for the photographer or other user publishing their own content, stating quite clearly in their terms of service that copyright over any posted content stays with the copyright owner.
Copyright is granted at the moment the image in question is created. So, as soon as you press the shutter-release button on your camera, or the capture button on your phone, the copyright is yours, whether or not your name appears in the metadata in any way. There is no need to apply for this.
That said, those in the US can register images for copyright with the United States Copyright Office. This is a chargeable service, but one that would make it easier to prove ownership where infringement has occurred.
What you agree to when posting content
Most social media sites state something similar to each other in their terms of service with regards to the rights and permissions to content uploaded to their platforms. These tend to boil down to three things.
First, the action of posting the content does not change copyright ownership. Second, you grant the platform a non-exclusive right to use the content in a number of different ways, which, among other things, usually includes transferring that licence to another entity. Finally, you should be the owner of the intellectual property rights (copyrights, trademarks and so on) to the content you post.
There are small differences between what each site claims, however, which are detailed below.
The nub of Facebooks terms is quite simple: you should own the intellectual property to the content that you post but you grant the platform certain permissions when you post it.
It states “you grant us a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content.”
So, while you retain the copyright to the images themselves, you do give Facebook a lot of control over how it can then use it. Some of these terms, such as ‘host’ and ‘distribute,’ are fairly standard; clearly there is a need for Facebook to host and use your images if you’ve decided to share them on Facebook.
Other terms, such as ‘modify,’ sound understandable if you consider that Facebook needs to be able to deliver this content in various forms, depending on how it’s being consumed.
‘Create derivative works,’ however, may alarm some users, particularly as this is not a term used by many other networks. On the face of it, it appears as an extension of ‘modify,’ although quite where ‘modify’ ends and ‘create derivative works’ begins is not clear.
And who exactly does Facebook intend to ‘transfer’ or ‘sub-license’ this license to? Whatever Facebook may or may not do with your content, by using its service you automatically give it permission to do plenty with it.
When it comes to deleting your content, Facebook states that the license you grant it expires once your content is deleted from its systems. A number of small caveats, however, show that this isn’t necessarily at the same time as you delete this content from your account. Facebook states that it may continue to exist elsewhere if:
- “immediate deletion is not possible due to technical limitations (in which case, your content will be deleted within a maximum of 90 days from when you delete it)”
- “your content has been used by others in accordance with this licence and they have not deleted it (in which case, this licence will continue to apply until that content is deleted)”
- “where immediate deletion would restrict our ability to: investigate or identify illegal activity or breaches of our Terms and Policies (for example, to identify or investigate misuse of our Products or systems); comply with a legal obligation, such as the preservation of evidence; or comply with a request of a judicial or administrative authority, law enforcement or a government agency.”
So, if your content has been used by others in some way, or if Facebook suspects that you have broken its terms (or the law), it may remain in its systems.
Once again, the thrust of the terms is clear. It states in bold, and with a bullet point, that “we do not claim ownership of your content, but you grant us a license to use it.”
You grant the platform “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).”
Similar points to Facebook about content remaining on the system if it’s shared by others, as well as what happens if it suspects you’ve gone against their terms or the law, appear here too.
WhatsApp, which since 2014 has also been owned by Facebook, splits from the other services in this list in the sense that it’s more a messaging platform rather than a place to publicly share images with more than a handful of people.
Many people are aware that, unlike on many other sites, end-to-end encryption is also enabled as standard for all communications, although this relies on all parties involved using a version of the app released on 2 April 2016 or later.
Facebook’s ownership has, however, created some concern about the way in which content may be used across the two platforms – and the terms and conditions do address this. It states that “nothing you share on WhatsApp, including your messages, photos, and account information, will be shared onto Facebook or any of our other family of apps for others to see, and nothing you post on those apps will be shared on WhatsApp for others to see, unless you choose to do so.”
The license you grant to WhatsApp over your content, however, is pretty much the same as with Facebook and Instagram. “In order to operate and provide our Services, you grant WhatsApp a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, create derivative works of, display, and perform the information (including the content) that you upload, submit, store, send, or receive on or through our Services.”
WhatsApp states that this license is “for the limited purpose of operating and providing our Services.” It also carries more agreeable terms over the storage of that content, stating that it does “not retain your messages in the ordinary course of providing our Services to you. Once your messages (including your chats, photos, videos, voice messages, files, and share location information) are delivered, they are deleted from our servers.”
The exception to this is that it will typically keep undelivered messages on its servers for up to 30 days if it cannot initially deliver them. “Your messages are stored on your own device. If a message cannot be delivered immediately (for example, if you are offline), we may keep it on our servers for up to 30 days as we try to deliver it. If a message is still undelivered after 30 days, we delete it. To improve performance and deliver media messages more efficiently, such as when many people are sharing a popular photo or video, we may retain that content on our servers for a longer period of time.”
As with Instagram, Tumblr makes it very clear that “you retain ownership you have of any intellectual property you post to Tumblr.”
As with Facebook’s portfolio of sites, you grant Tumblr “a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of, such Subscriber Content.”
That appears just as broad as the others, while the familiar line about the rights in the license being granted “for the limited purposes of allowing Tumblr to operate the Services in accordance with their functionality, improve and promote the Services, and develop new Services” also appears.
Interestingly, Tumblr elaborates on the ‘derivative works’ line that’s used by some other platforms. “The reference in this license to “creat[ing] derivative works” is not intended to give Tumblr a right to make substantive editorial changes or derivations, but does, for example, enable reblogging, which allows Tumblr Subscribers to redistribute Subscriber Content from one Tumblr blog to another in a manner that allows them to add their own text or other Content before or after your Subscriber Content.”
Tumblr also states that the license you grant it “continues even if you stop using the Services, primarily because of the social nature of Content shared through Tumblr’s Services – when you post something publicly, others may choose to comment on it, making your Content part of a social conversation that can’t later be erased without retroactively censoring the speech of others.” So, the license appears to be indefinite.
To its credit, Tumblr has placed the following point on a separate panel to make it particularly salient: “One thing you should consider before posting: When you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it.”
LinkedIn is particularly keen to highlight that you retain copyright to all posted content, going so far as including a video to make this point within the terms themselves – although the terms regarding licensing are largely the same as they are elsewhere. “You own all of the content, feedback, and personal information you provide to us, but you also grant us a non-exclusive license to it…”
“… a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, information and content that you provide through our Services and the services of others, without any further consent, notice and/or compensation to you or others.”
One thing that may raise an eyebrow in LinkedIn’s terms is the statement that you automatically grant a license not only to LinkedIn, but to its affiliates too. LinkedIn defines affiliates as “companies controlling, controlled by or under common control with us, including, for example, LinkedIn Ireland, LinkedIn Corporation, LinkedIn Singapore and Microsoft Corporation.”
The terms make it clear that the licence you grant expires once you remove the content, although the familiar caveat about this content remaining on the system if others have re-used it in some way, and “for the reasonable time it takes to remove from backup and other systems” remain.
LinkedIn also states that “while we may edit and make format changes to your content (such as translating it, modifying the size, layout or file type or removing metadata), we will not modify the meaning of your expression.”
Twitter has separate terms for users in the US to those outside the US, although the specific clauses that relate to content appear to be the same across all territories.
Although these terms clearly state that any content you post is yours and remains yours once it’s been shared on the platform, and has similar-sounding terms regarding the license you grant it to the other sites here, some passages stand out. It claims, for example, a “royalty-free licence (with a right to sub-licence) use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” content for “any and all media or distribution methods (now known or later developed).”
You also agree that “this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use.” It goes on to state that “this license authorizes us to make your Content available to the rest of the world and to let others do the same.”
These terms appear a little more aggressive than the others, although this appears to be at least in part in order to make Twitter work as its users expect it to.
Anyone who regularly sees tweets embedded in news articles or elsewhere may appreciate why Twitter wants this license to extend to publishing content on platforms other than Twitter’s own website and native apps.
Those familiar with how Twitter works will be aware of the need to allows other parties to share your content, and they will also no doubt be aware that the action of deleting a tweet will also delete it from anywhere else it’s been embedded – much like a SmartFrame.
“Any and all media or distribution methods (now known or later developed)” is not an unusual clause, but one that may cause alarm nonetheless. Twitter will no doubt argue this is necessary in order to future-proof its service.
The terms discussed here typically appear as part of long agreements that many users will never take the time to read. While some platforms have sought to make the main points around copyright and usage clear in one way or another, these agreements are, on the whole, written in vague and complex legalese that give the platforms the right to do pretty much anything they want with your images, expect own them or their copyright.
Of course, it’s unlikely that these platforms would exercise the full rights granted by these licenses, and some do underline that the license is necessary for them to be able to serve your content in the expected way. And the more alarming points, such as those claiming a right to transfer or sublicense your content, may only simply be there to provide enough legal cover in the event of an acquisition or merger, rather than anything more sinister.
Regardless, it’s important to remember that by using these platforms you automatically consent to them to doing more with your content than many people would be comfortable with, were they to fully understand what they’ve consented to. As Tumblr’s terms point out, the moment you publish something publicly online, you lose the ability to control where that content goes and what is done with it, regardless of what you did or did not agree to. Just the fact that the terms of many sites have the words ‘transferable’ and ‘sublicensable’ should be alarming enough, given that this allows other, unspecified partners to use and modify your content too.
All of this is a problem for both individual creatives whose livelihoods depend on their work and businesses with images and other assets to protect. But, particularly for creatives, being able to promote themselves and their work on social platforms is necessary if they’re to make a living from it.
Many consider the risks to be small enough to continue posting their images and other content on these platforms, while others will only do so in a way that compromises the quality of the work, be it by posting a low-resolution sample of the content or protecting it with a watermark, or something else. SmartFrame’s approach, which combines thumbnail pull-throughs of images hosted on its own platform with the ability to view and interact with the image away from the social media site being used, circumvents the issues discussed here.
The information in the terms of service stated here is correct as of 11 November 2019.