Know this about Instagram, Twitter and Facebook

Posted: May 8, 2014 in Business, Education, Law, Terms Of Service
Tags: , , , , , ,

tos

 

Has this ever happened to you? You look online surfing the net leisurely and you spot a picture of yourself featured in an ad for selling a product or it could be used in a different manner. The point is the picture was used without your knowledge or consent so you should ask yourself how could this happen? I’m glad you asked

To speak freely about under circumstances when it just involves copyrights you as the “owner” have the exclusive rights to display, copy, use, produce, distribute and perform your creation as you see fit and approve. As the subject of the photograph you have to publicity so you can get paid for your name, likeness and voice. This applies unless you make and agreement that allows a third-party to rights to your image, likeness, name, voice etc. The internet though is a whole different story, full of grey areas and non-definitive terms that are made up as they go. Now, you still “own” the pictures you post up on your social media page, but once you post that video of yourself playing with the kids or picture of yourself posing with friends for a selfie that also grants your social media platform permission to you use you image anyway they see fit for free. Here’s the kicker you also grant permission for others to use your picture as well. This means places like twitter, twitpic and facebook can make money from your photo or video which under other circumstances would be a violation of copyrights but this is the internet and they can make commercial gain by licensing these images which contains the likeness of the person in the photo or video.

 

Instagram

Once Facebook owner Mark Zuckerberg purchased Instagram the terms of service was changed. Instagram was already making money off their members by, well I‘ll let them say it. “To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, 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. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.” I know this comes as a shock for some,but for the rest of you Instagram basically can take you picture and sell it to the highest bidder for commercials, other websites, tv, magazines, newspapers etc. And you won’t even get a email saying thank you for your time. What’s worse is if your under 18 by posting your pics up it’s just like saying you asked you parents permission to grant instagram access for your photo as well. They minor entered into a contract even though legally they are not allowed to enter into one. But hey the contract maybe unenforceble soooo that eases your mind right??

Now since Dec. 2012 Instagram made changes to the terms of service, but these changes are that much better for the member as the old ones were. Instagram does not claim ownership of any Content that you post on or through the Service. Instead,you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy. . .”  This means that Instagram can still sublicense your photos to any company for a fee (without paying the member)!  And it gets worse. “(iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.”  Bottom line – Instagram stil gets to sell your pictures without paying you and you can be liable in the event they have to return that money to the advertiser!  So let me break it down for you a celebrity sues instagram for using a photo of them for licensing an advertiser for the photo. The last section just said you have to reimburse instagram for expenses. 

If your settings are set to private then this only allows distribution through instagram and no outside service. You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third-party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.  What this means is you can get sued by posting other images you do not own no matter how much credit you give to the creator of the image.

Amanda from I am Baker found out the hard way what uploading simple pictures can do and the trouble is causes. Apparently photo were taken from her site and place onto another’s without her consent by the way and then one of the photos was uploaded to an instagram contest which got 24,000 hearts on instragram which is traffic that could have gone to the creator in this case is Amanda and since instagram are such great people they NEVER responded when Amanda tried to bring this to their attention and get the isse resolved sooooo pretty much nothing happened. Yaaaaaay!!!!! post away people.

Twitter-

Isn’t better,maybe even worse They updated their terms of service on May 10, 2011 which allows twitpic which is the photo sharing service for twitter to take uploaded content which gives them permission to do this by the way and distribute your content among twitpic and affiliates services. Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’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.” 

each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.  The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.”   

What the hell does this mean? Weeellll brace yourself Twitter doesn’t have a formal definition of “service” on their site so your photo can be used throughout the internet. To add onto that the video and photos can be reprinted and used without not only your consent, but also without you getting paid. That means you could see yourself on billboards, tv, magazines, books and movies and not see any money coming your way. Second Twitter can create derivative works from your content meaning they can take photo or video and add to something like a tv show or putting a photo in a montage.

Third let’s say you delete your content, that has little impact on twitter, twitpic to use your photo. For what is defined as a reasonable amount if time they reserve the right to your deleted works and use them as they so please. The issue here is what is a reasonable amount of time for some may not be for others and they can have access to your works forever if need be. That’s reasonable right?

Celebrities should contact their intellectual property attorney to go over the fine print to protect with issues like being taken advantage of with posting your videos and photos online. Your right to publicity for your voice, image and likeness for commercial gain for product or sports endorsements is taken away piece by piece when you post.

 

Facebook-

As you would have guessed from the last paragraph about instagram that was purchased by Facebook they have a similar terms of service that allows them the right to your postings and your video content through a non-exclusive, transferable, sub-licensable, royalty free, worldwide license to any IP content posted on or connected to Facebook. The IP license ends when the account is deleted, but may remain if your content has been shared and they other party has not deleted it. So once again Facebook can use your content without your approval, recognition and without paying you. Your photos and videos will remain even you cancel your account, because Facebook still keeps the content on their servers and they may have backup systems, and back systems to back up the backup and so on and so on. You are able to withdraw your consent to use the photos on Facebook, but using Facebook applications may have their own terms of service as well you should be aware of.

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