Losing Control of your Copyrights on Social Media

January 13th, 2016

SocialMedia

This is a guest post by Joel Rothman of Schneider Rothman Intellectual Property Law Group, PLLC.

It seems innocent enough. Your interior designer client has posted one of your beautiful photographs of her latest installation to her Instagram account. The photo highlights your client’s design of an expansive living room with vaulted ceiling and massive stone fireplace.

Occupying the lower right corner of the frame is a demure crimson love seat by high-end furniture designer Donghia. The viewer almost does not notice the love seat, it is so unobtrusive. But, in a nod to its source, your designer client has “tagged” her Instagram post with #donghia.

A few months pass and you receive an excited call from your client. Her design has been chosen for an Architectural Digest feature! Of course, that is great news for you too! Soon the phone rings and an assistant art director from A.D. agrees to pay you a generous fee in exchange for an exclusive license for your photographs.

Life is good, you think. But wait, there’s more.

While you are waiting for your big check to arrive you receive a follow-up call from that assistant art director asking why your photos — the ones you agreed to license exclusively to A.D. — are plastered all over the homepage of Donghia’s website advertising their new loveseat designs?

Huh? You rush to the computer, type in Donghia.com and sure enough, there it is. Your photo. Infringement, right? Not so fast.

This scenario plays out every day over and over. Why? That little #donghia hashtag, the Instagram terms of service, and new internet content aggregators like Olapic.

Olapic? Yes, Olapic. The start-up company’s business is identifying brand-related social media content, copying it, and then republishing it on the brand’s website. If it sounds like copyright infringement, think again.

A recent New York Times article quotes a spokeswoman for Olapic as saying, “brands do not always need to ask for permission to use a photo on their websites because users can give implied consent by tagging a company in their posts.”

But how did this happen?

Your interior designer client has an Instagram account. As a result, your interior design client agreed to the terms of service for Instagram that say that Instagram automatically has a royalty-free perpetual license to any content your interior design client posts on Instagram for any purpose whatsoever.

Instagram, for its part, makes its content available to other companies, including Olapic. Olapic’s terms of service say:

By uploading User Content and posting User Content that you have tagged with Brand hashtags to social media platforms, you grant to the Brand, its third-party service providers who provide content management services including Olapic, and its retail partners (collectively, the “Licensed Parties”) the worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable right to use your uploaded or Brand-tagged User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on its webpages, social media pages operated by the Licensed Parties, promotional e-mails and advertisements, and in other marketing, promotional and advertising initiatives, in any media now or hereafter known.

In other words, according to Olapic, when your design client tagged your photo #donghia she gave Donghia a free license to use your photo for advertising without paying you a penny!

Plus, on top of all that, since both the Olapic and Instagram terms of service have indemnification provisions, if you tried to sue either one, they might bring your designer client into the lawsuit and demand that she indemnify them from your claims! Now that’s a kick in the pants!

One possible response is for photographers to include language in their license agreements prohibiting their clients from posting licensed photographs on social media. Whether that will work in practice is another story.

We may see the limits of the implied license tested in cases soon. This is still an emerging problem. Check back for further developments.

Share this

19 Responses to “Losing Control of your Copyrights on Social Media”

  • It sounds like Olapic is reaching way out to left field by stating that a hashtag is the same as a license. This is same thing as Ford claiming free use of my photos made today because the metadata has “Ford, Mustang” in the keywords.

    Social media sites, especially the most prominent ones, have in their Terms and Conditions that ANYTHING you post on their sites is available to them to use or resell without compensation, forever. Know before you post.

  • If the terms of your usage license to your client specify that no third parties may use the photos without your written consent, and you did not give such consent, then the kind of usage described above would be a copyright infringement, if I understand the US copyright law correctly. Personally, I think that usage license terms should limit Internet usage to specific websites, so that it is clear to the client that they need to get your approval if they want to use the photos anywhere else on the Web, at which point you might assist your client in avoiding any websites with egregious terms of use, though I believe it is still ultimately up to the client to make sure they are complying with the terms of your usage license to them. I realize that licensing to real estate agents may present some difficulties for some photographers, because of the particular nature of the clientele and the kind of usage they typically need, but this should not be the case with other types of clients, including interior designers.

    Perhaps Joel might suggest some usage terms that would help to emphasize to the client any restrictions on third party usage?

  • I think the biggest issue is the indemnification provisions in the contracts. Does an indemnification cause hold if you know or should reasonable know that a portion of the photos you collect can not be used due to copyrights? Isn’t that like buying a diamond ring in an alley for $50 and saying you didn’t know it was stolen?

    To rephrase my original statement: Will an indemnification cause protect you when you are benefiting from a civil or criminal activity preformed by a third party? If that is the case, then the mob should put indemnification clauses in their hit contracts.

  • Ken, David and Neal,

    All great points.

    David, the easiest license modification would be to add in large red bold letters: POSTING MY PHOTOS ON SOCIAL MEDIA IS PROHIBITED! That gets the point across. Whether it will be remembered is another issue.

    For several years I have distributed a sample license agreement free to real estate photographers. You can dowload it here: http://www.sriplaw.com/wp-content/uploads/2014/01/RE-Photography-License.pdf The agreement contains the following license term:

    Your Rights permit you post our photographs on multiple listing services and make the Products available in your MLS listing for the Property. However, your Rights do not permit third-parties to copy, display or distribute our photographs for the purpose of providing services competitive with the Products you have purchased from us unless we give you our written permission.

    The second sentence addresses this problem in a general way. In the license the term “Products” means your photos. So if a third party uses your photos to compete with you that is prohibited. Competing with you would include giving away your photographs for free.

    I agree with Ken’s analysis that Olapic is overreaching. Implied license is tough to prove here. Plus, an argument can be made that Olapic is engaging in unfair competition with photographers by distributing their photographs and preventing them from earning licensing fees as a result.

    Neal, as far as indemnification is concerned, I agree that if Olapic is considered to be complicit then that could defeat their indemnification claim.

    Thanks again.

    Joel

  • Hello,

    Could putting copyright information on the photograph as watermark before posting it on Instagram help in this case?
    At least all usage would give marketing value to the photographer.

  • What i have done with real estate agents who might want to post my real estate photos to Facebook and other social media, is to require that they only use photos that have my copyright notice/website url watermark (for which purpose I provide a set of photos with this watermark), which I hope will discourage any unauthorized commercial reusage of the photos. Aside from other copyright issues, it is illegal to remove a copyright notice from an image and there is a stiff fine for doing so.

  • What’s not talked about in this article is, did the Interior Designer have the right to release the copyright? Just because somebody posts your picture on social media doesn’t mean you lose your copyright. Anybody can snag one of your pictures and repost it. Unless you signed off on your copyright, you still own it.

    Would this story be any different if anybody found this photograph, say in the MLS, then noticed the furniture, posted the picture on social media with the hashtag, and then simply said “What a cool picture of #donghia?” The relationship, contractual or otherwise, of the person reposting your picture has no bearing on your copyright.

    Now, if the photographer did release all rights to his Interior Designer, then he has no complaint and can consider this experience tuition.

  • Wow! What a mine field!
    I fear we will all have to put on our “BS” boots and walk through it.

  • If I told agents they weren’t allowed to post my photos to SM I’m certain I’d be out of business overnight.

    David Eichler’s method of delivering watermarked SM copies (copies since the MLS won’t accept watermarks) sounds like a good solution… But I can hear my brokers screaming about how complicated it is – honestly – half of them struggle with multiple Dropbox files, it’s pretty amazing.

  • I think David Eichler hits the nail on the head. You can have legal documents all you want and the courts may take a long time to figure out who is right. But in the meantime, you can discourage this behavior by having watermarks. it’s unlikely that Donghia would post a photo of their furniture on their website if it had yours and/or the designers watermark on it. it would look ugly and customers would wonder why this watermark exists on their marketing photos. I will push my clients to put watermarks on their photos to protect their investments, and thereby protect my copyright.

  • The real issue here is third party companies creating self-serving boilerplate language for their own business interest, of which is obtaining the resource at minimal or no cost, blatantly stripping others of their rights, to create their own commercial product. And then, of course, if contested, it is not their fault but those who initially provided it. That is what needs to be challenged.

    Zillow, Trulia and others do this all the time as they have very similar language. They receive the photos (and the Realtors written description – original creative content covered under the same copyright laws) that is fully within the license intent to market the home. There is no problem with that. The problem is that they create a whole new product using that material. Rather than letting leads flow back to the listing agent, as an individual views it, they sell the leads back. It is the original content that attracted the potential buyer, but the listing agent has to buy a leads package from them to receive any marketing data. If the listing agent doesn’t pay, then they sell it to your competitor who benefits from your marketing material. Perhaps the photographer (or DIY Realtor photography) and the Realtor for their creative prose should be receiving a licensing income stream from the new product that Trulia and others create. Sadly, most realtors don’t realize that their rights are being trampled or that they are effectively subsidizing their competitor.

  • Surely if a client of ours has no legal right to grant further rights to a third party then that third party wouldn’t have a leg to stand on. Sure they could threaten to sue whoever used the donghia hashtag for violating their terms but that would result in a ton of bad press, especially with social media being what it is. I can see this being a pain for photographers when it happens but surely there’s not a court in the land that would side with Ts&Cs such as Olapic’s?

  • @Matt – Read the terms of use for social networks like Facebook and Instagram (click on the photo for this post to see the terms of use for Instagram). It says:

    “… By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services… ”

    Very similar to Olapic’s. My understanding is that litigation on this subject is already underway… who knows how long it will take to sort out.

  • As a photographer who also does fine art, and is putting the finishing touches on a new web site to promote that work, this issue makes me wonder if these same tactics apply to someone who shares a copyrighted fine art image of mine on a social media sight like Instagram, using a hashtag with their own name? I doubt it if Olapic would pic it up, because it wouldn’t involve brands, but seems to me, after reading their terms of service, that Instagram and the rest have the same rights to sell and market that work too.

  • @Dave said, “…copies since the MLS won’t accept watermarks …”

    Most MLS’s, including mine in Northern Illinois – Chicago, DO accept watermarks. All the pro photographers in my area add copyright watermarks on the photos posted in the MLS. They do not accept anything that identifies the broker in the image, including the For Sale sign.

  • @Larry Gray – you’re right, Realtor.com, Zillow, Trulia and other similar sites do use the work of others to make their product work. However, it doesn’t have to work that way. I compete directly against those site, and on a local basis provide better advertising. I don’t have to steal the works of other or sell leads back to the agents to make money. Nor does it require the photographers to give away copyrights to the images. Yes, you do need a license that allows for duplication, modification and general use of the photos. However, those requirement can easily be spelled out, limited to used directly for the site and fall well short of what amounts to signing away the copyrights.

    What is even worse is that many MLS boards will sell the listings and the photos to third parties, which in turn sell the use of the photos to other parties. Some of those sites are pay for use sites. The only content they have are the photos and the listing information.

  • @Michael Allen You’ve got it good then, and David’s solution might work for you. But most of the MLS on the West Coast including mine, the multi-state NWMLS don’t accept watermarks. In fact our NWMLS adds their own(!)

    I’m not so sure the MLS, at least up here, is the enemy on this anyway: 78% of ‘retail real estate traffic’ flows through Zillow in the Pacific Northwest – that’s OR, WA, ID (and, btw, they don’t accept watermarks either). Why would someone post a 72 resolution 680px image from the MLS when (without a broker’s license) they could just ‘grab’ one off Zillow, Realtor.com or numerous other sites with 3X the size and resolution?

    In the context of REAL ESTATE MARKETING (in caps so Scott doesn’t have to read that twice again) I have to wonder where the line is between making it too complicated and difficult to sell a broker an image, and where the outfit he/she works at just hires an in-house photographer for much, m-u-c-h less grief. In fact: I know of just an agency in WA that’s currently considering that – and, they are the highest transaction volume office in WA State – they are trend setters.

  • The toughest part of all of this is that our customers want to use social media sites to advertise the homes they have for sale and there isn’t a way for them to post images without accepting these overreaching T&C’s. If we go after FB or another site, they will throw our customers under the bus by pointing out the indemnification clauses the agreed to when they joined.

    The MLS’s around me all disallow watermarks on images, but none of them seem to enforce this rule as I see them frequently. Agents are also not supposed to post photos of their signs, logos, business cards, etc and they often do. I don’t know if these agents get warnings or the photos are deleted as I am not a member of the local REA and I don’t often revisit listings.

    I’m trying to get the agents I work with that post images on social media sites to just post one with a link back to their own site where they have posted the rest of the gallery. It’s tough as most agents don’t seem to have any web site skills (or marketing skills for that matter). They also think they are getting good results from places like FB but since they haven’t updated their proper web site in a couple of years, there is no way to know that. My best customer has a site that only seems to work properly with IE on Windows. It’s completely unusable with an Android phone. Sigh.

  • As few have mentioned in the comments above, perhaps by adding a small watermark on each of your photos, it would probably solve this issue.
    Also, there is a line of code you can enter on your website source code, to prevent them from “right-clicking” and saving the image.

Comments RSS

Leave a Reply