Tuesday, June 23, 2015

Do Apple, Google or Facebook Own Your Photos?

We upload photos and other media to services such as Facebook and Google.  Photographers (and other content creators) have wondered if by doing so, we're giving those companies ownership over our photos and media.  In this post, I'd like to raise some issues and just give you some things to think about.  I'm going to let you know upfront that I unfortunately don't offer any solutions here, and I can't give legal advice (if you want an answer or solutions, that's what hiring a lawyer is for).

First, as crazy as it might sound, this seems to be a real issue.  Although I haven't seen a service that purports to take ownership away from you, there are services that do attempt to take practically all rights to your media.  Here is an example, from PicJoy, a new service competing with Google Photos (from their Terms of Service as of June 23, 2015):
"3. User Content License Grant By posting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Company's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels."
I am supposing that the enforceability of this contract depends on the laws of the applicable jurisdiction (that's one of the issues that only a lawyer can determine, and everyone's case is different).  However, if you take the agreement literally, the agreement purports to require you to give them practically every conceivable type of license to your work (including the right to sublicense it to others) and even the right to use your name and face, for their business.  Saying that the license is for their business sounds pretty much like any purpose they want to use it for.
Photo contests frequently have similar terms, so that by submitting an entry, you end up giving them a very broad license to do with your entry as they please.
What about other companies, particularly the ones we use for social media?  I pulled out samples that show differences between companies' terms.  Note that most of them require that you grant them a broad license.  However, one of the ways they can differ is the purpose for which the license is usable (they can differ in other ways such as duration).
Some companies expressly limit the purpose of the license that you grant them.  Here is a sample from Apple's iCloud Terms and Conditions (as of June 23, 2015):
"1. License from You. Except for material we may license to you, Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you. You agree that any Content submitted or posted by you shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. By submitting or posting such Content on areas of the Service that are accessible by the public or other users, you are representing that you are the owner of such material and/or have all necessary rights, licenses, and authorization to distribute it."
This kind of provision grants a broad license, but limits it by specifying that the license is solely for the purpose that you upload your media.  For example, if you uploaded your picture to iCloud, and Apple makes an electronic copy available when you share it with someone else, you wouldn't be able to sue Apple for infringing on your copyright.  On the other hand, if Apple uses your uploaded picture for an ad campaign, and you didn't submit the photo for their ad campaign, then it seems that would be outside of the license in this provision.  (I haven't read the rest of the agreement, and other provisions may negate or limit your remedies, or change the effect of that provision).
Some companies require that the license be for any purpose they want.  Here is a sample from Facebook's Statement of Rights and Responsibilities (as of June 23, 2015):
Facebook starts out by saying, "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."  That sounds good and some people might skip the rest of it after hearing those words of assurance.  However if you continue further, it says, "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)."  The provision doesn't say anything about the purpose that Facebook can use the license, so it is effectively for any purpose, if read and applied literally.  This provision seems similar to PicJoy's and is more draconian than the one in the iCloud terms.
Some companies have a provision that is somewhere in between.  Here is a sample from Google's Terms of Service (as of June 23, 2015):
"When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services."
This provision is broader than iCloud's although not as broad as Facebook's.  Google limits the use of your content to operate, promote or improve their Services, or to develop new ones.  For example, if you upload a family picture to Google Photos, this license (if enforceable), would allow Google to use your picture in an advertisement for Google Photos, because that would be a promotion of their Service.  Note, however, that the agreement defines Service broadly to mean their products or services.  As you know, Google makes new services all the time, which makes the license broader than it sounds.  In other words, if you upload a photo for Google Maps, it might be used to promote Google+ or Google Photos, or any other Google product or service.  If someday Google operates a stock photo service, you might end up being a contributor, whether you intended to or not.
This issue isn't limited to photos or videos.  It also affects other media, including text (so, yes, even bloggers should be concerned - yikes).

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