Mai-Trang Dang’s “Expect More Copyright Issues For Photo-Sharing Sites” Published in Law360

Washington, DC – April 25, 2013 – Mai-Trang Dang’s article titled “Expect More Copyright Issues For Photo-Sharing Sites” has been published in Media & Entertainment Law360 and IP Law360.

A copy of the article is reproduced here:

Expect More Copyright Issues For Photo-Sharing Sites

Law360, New York (April 25, 2013, 12:16 PM ET) — A survey of the terms of use from 10 popular services that share photographs show potential for legal issues resulting from how those services treat copyrighted material uploaded by users. Behance, Pinterest, Instagram, iCloud, TwitPic, Twitter, Google, Facebook, Flickr and 500px claim broad, worldwide, royalty-free licenses to anything users upload to the services. Some retain their licenses to content even after users have terminated their accounts. And two allow advertising “in connection with” or “in conjunction with” user uploaded content.

On a Monday last December, the photo-sharing service Instagram found itself the object of immediate and overwhelming ire after it announced changes to its terms of use. In the original blog post linking to the new version of the privacy policy and terms of service, it told users “[n]othing has changed about your photos’ ownership or who can see them.” Users disagreed and unleashed online outrage. The uproar resulted from, in part, this section of the new terms: “You agree that a business or other entity may pay us to display your user name, likeness, photos (along with any associated metadata) and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.”

In other words, the new terms could have allowed advertisers to pay Instagram for the use of user content without express permission or compensation. By the following Thursday night, the company issued a mea culpa blog post linked to updated new terms that did not include the above language, all while clarifying that “Instagram has no intention of selling your photos, and we never did.” The anger subsided and Instagram lives on, even though it may face a class action suit over the ruckus. See Funesv. Instagram, Case No. 12-6482 (N.D. Cal. filed Dec. 21, 2012).

Although Instagram’s updated terms have not wreaked havoc like the previous (aborted) ones, they do contain language permitting Instagram to place “advertising and promotions on the [Instagram] Service or on, about, or in conjunction with your Content,” ostensibly because “[s]ome of the Service is supported by advertising revenue.” Instagram, Terms of Use (effective Jan. 19, 2013).

A low grumbling about Instagram’s terms persists, but mainstream news has moved on, even though the newer language could lead to some of the same legal issues. And other services, such as Twitter, contain similar language allowing those services (and third parties) to place advertising “in connection with” user content. See, e.g., Twitter, Terms of Service (last visited April 15, 2013).

Much of the controversy focused on possible copyright infringements through Instagram’s potential use of users’ photos in advertisements, but potential legal trouble also lies in the use of peoples’ likenesses without releases, governed not by federal copyright statutes, but by state law. Without express permission, commercial use of a photo containing an individual’s likeness potentially violates his or her rights of privacy and publicity. See, e.g., N.Y. Civ. Rights Law, Article 5, §§ 50, 51 (2010); 42 Pa. Cons. Stat. § 8316(e) (2002); Cal. Civ. Code § 3344 (1995). Some states even make violation of the right to publicity a criminal act. See, e.g., Va. Code Ann. § 18.2-216.1(1977).

Should photographers worry about the terms to which they have agreed when they upload content to sites like Instagram, Flickr and Pinterest? A survey of the terms of use from 10 social networking services suggests they might. On the positive side, none of the terms surveyed claimed actual ownership of copyright to user content. Most include assurances to the contrary, such as this from Twitter’s terms of service: “You retain your rights to any Content you submit, post or display on or through the Services.”

But across the board, users who upload content to Behance, Pinterest, Instagram, iCloud, TwitPic, Twitter, Google, Facebook, Flickr and 500px grant to those services royalty-free usage licenses without geographical limit. On all services surveyed except Facebook and Instagram, the license includes the rights to reproduce and modify the content. And Behance, Pinterest, Twitpic, Google and Flickr explicitly declare the right to incorporate the content into other works or to create derivative works from them. Which services claim a right to transfer the license to other entities? Pinterest, Instagram, TwitPic, Facebook and 500px do. At the very least, Pinterest, TwitPic, Google, iCloud and 500px limit their licensed activities to the purpose of running their services.

While Facebook does not explicitly claim the right to reproduce and modify user content, its application programming interface exposes user-uploaded photos to limitless commercial usage, at least technologically speaking. A new service launched at the end of March called Photos At My Door can turn any viewable photo on Facebook into customized mousepads, phone cases, key chains and more. Aside from the obvious potential for creepiness, copyright and privacy issues may soon result from this commercial service.

Some users may eventually throw up their arms and stop using sharing services like these, assuming that they have opted out upon termination of their accounts. They would be somewhat wrong, however, in the case of half of these services. Behance, Pinterest and Facebook retain terminated user’s content that has been shared or stored by other users. Google explicitly states that its license to user content “continues even if you stop using our Services (for example, for a business listing you have added to Google Maps).” And Instagram allows itself a “commercially reasonable time” to retain user content for “backup, archival, and/or audit purposes.”

The results from surveying terms of service from 10 popular content-sharing services suggest that further legal issues will surface from how those services treat copyrighted material. Instagram may have gotten some unlucky scrutiny last December for trying to adopt explicit licensing rights that other services may presume they already have.

–By Mai-Trang Dang, Mei & Mark LLP

Mai-Trang Dang is an attorney at Mei & Mark LLP’s Washington, D.C. office. A former Federal Circuit law clerk, she is a professional nature and portrait photographer who practices media and entertainment law, including handling copyright, trademark, privacy, right of publicity, and fair use matters.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.