July 24, 2014

Using my photo? Did I inadvertently give rights away by posting it online? ^Reply

*C O P Y R I G H T*, *Copyright: Photos, *Licensing: Exclusivity, *Vanessa Kaster, *Website: Social Media, *Website: Terms of Use

It’s so easy and fun to share photographs online that folks often give away rights to their photographs without even realizing it. HOW DOES THIS HAPPEN? The terms, conditions and licenses that the photographer agrees to when posting a photograph to various social media and photo-sharing websites often grant other folks broad rights to use posted photographs. Keep in mind that every social media and photo-sharing website has different terms, conditions and licenses that are agreed to automatically simply by USING the website and POSTING photographs and other content. These terms, conditions and licenses are modified and updated frequently.

Here is an interesting and fairly haunting example: A photograph of a teenager was taken by her youth counselor and posted to his to Flickr account under a broad Creative Commons license that allowed others to use his work in any way, including for commercial purposes, if they credited the photographer. (See the inserted photo). A slightly edited version of the photograph ended up in an advertising campaign for Virgin Mobil Australia. A lawsuit followed.

THE TAKE AWAY: Read the terms, conditions and licenses that you are agreeing to when using and posting photographs and other content to social media and photo-sharing websites. Most popular social media and photo-sharing websites, including FACEBOOK, PINTEREST and TWITTER have fairly broad terms, conditions and licenses that change frequently. Websites post their terms, usually at the bottom of the webpage. These same terms that often give other folks broad rights to use posted content, also contain the steps to follow if your photographs or other content are being used without your permission on the site and you want to request that it be taken down.

This post was inspired by my friend Mel and a host of social media comments about a photograph that ended up on a series of KEEP CALM shirts.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: Articles about the Virgin Mobil example above from the Sydney Morning Herald and The New York Times; photo of a Virgin Mobil Ad; Flickr’s Creative Commons licenses at https://www.flickr.com/creativecommons/; other blog posts on photo copyright at https://iplegalfreebies.wordpress.com/category/copyright-photos; @iplegalfreebies and www.kasterlegal.com.

May 30, 2014

Imitating Others On Social Media ^Reply

*C O P Y R I G H T*, *T R A D E M A R K, *Trademark: Enforcing, *Vanessa Kaster, *Website: Privacy Policy, *Website: Social Media, *Website: Terms of Use

Social media sites generally frown upon users who imitate others and list impersonation as a no-no within their Terms Of Use and Privacy Policy. By using, joining or registering with a social media site, folks “agree to” and “accept” the terms and policies of the social media site. Note, that the terms and policies of a social media site (that you should, although, may have never read) apply merely by the simple act of using the site, joining or registering.

Imbedded within these terms and policies are several common elements that relate to impersonation and the treatment of imitators. Often, these are listed as things that a user is permitted to do and not do. “Shall not” language is commonly used in these lists (perhaps modeled off the Ten Commandments). Here are a few examples:

THOU SHALT NOT (as per terms and policies of various social media sites):

provide any false personal information on Facebook, or create an account for anyone other than yourself without permission [excerpt from Facebook’s Statement of Rights and Responsibilities]
create any account for anyone other than yourself without such person’s permission [excerpt from Foursquare’s Terms Of Use]
use a User Name that is the name of another person with the intent to impersonate that person [excerpt from Foursquare’s Terms Of Use]
post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law [excerpt from Facebook’s Statement of Rights and Responsibilities]
upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Submission, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
- you know is false, misleading, untruthful or inaccurate;
- impersonates any person or entity, including any employee or representative of Foursquare [excerpt from Foursquare’s Terms Of Use]

These are short, illustrative excerpts from the Terms and Policies currently posted on the Facebook and Foursquare sites. The Terms and Policies also include information on how to report imitators. Generally, a valid imitation claim will result in the imitator being removed from the site and possibly forfeiting other privileges and use of the site as well. While Terms and Policies are subject to change, discouraging imitation will likely remain standard protocol. Social media sites have a vested interest in discouraging imitators on their sites, because, this keeps their sites user friendly for original celebrity users.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

The Terms of Use and Privacy Policy for various social media sites can generally be found with a Google Search or are available on the social media site, often at the bottom on the login page.

February 14, 2013

Summary for Photographers of IP Legal Freebies: ^Reply

*C O P Y R I G H T*, *Cease & Desist Letter, *Copyright for $35/$55, *Copyright is Automatic, *Copyright: Infringement, *Copyright: Permissions, *Copyright: Photos, *Copyright: Website, *Photo Releases, *Photo: Infringers, *Vanessa Kaster, *Website: Social Media

Copyright protection starts automatically for original works –> http://wp.me/p10nNq-7H
Using the copyright © symbol –> http://wp.me/p10nNq-18
Copyright registration –> http://wp.me/p10nNq-13 & http://www.copyright.gov/
Copyright registration fee of $35 expected to increase –> http://wp.me/p10nNq-ke
What if a monkey picks up your camera and takes a self portrait? –> http://wp.me/p10nNq-b5
Photo releases –> http://wp.me/p10nNq-J
Tracking unauthorized use of photographs –> http://wp.me/p10nNq-as & http://www.google.com/imghp
Receiving a cease and desist letter –> http://wp.me/p10nNq-1B
Sending a cease and desist Letter (stop Monkeying around) –> http://wp.me/p10nNq-b5
What happens to pictures posted to Facebook? –> http://wp.me/p10nNq-ni
Get agreements signed –> http://wp.me/p10nNq-2g

And a few lagniappe topics:

Works in the public domain are free to use –> http://wp.me/p10nNq-ft
Copyright and transformative use –> http://wp.me/p10nNq-dv
Using someone else’s photos on your website, blog or promo materials –> http://wp.me/p10nNq-i9

This post is a valentine for my mom… who will be lecturing on this topic for other authors and photographers over the weekend.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

January 8, 2013

Viral Post Won’t Protect Copyright in US… Although Maybe in EU ²

*C O P Y R I G H T*, *Copyright: Originality, *Copyright: Permissions, *Vanessa Kaster, *Website: Privacy Policy, *Website: Social Media, *Website: Terms of Use

If you use Facebook, I’m sure you have seen the viral post proclaiming copyright in posted content. While the proclamation sounds rather official…. it doesn’t actually mean anything (if you are in the US)… nor does it preserve any of your rights (including copyright) that are modified, abdicated,or terminated by the Terms of Service and Privacy Policy of the Facebook website. What this means is that by using the Facebook website the conditions listed in the Terms of Service (which speak to broad control and use of posted content by Facebook for virtual eternity) are consented to.

The Viral Post (or a modified version of it):

I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, professional photos and videos, etc. For commercial use of the above my written consent is needed at all times! (Anyone reading this can copy this text and paste it on their Facebook Wall. This will place…them under protection of copyright laws).

In response to the viral post, Facebook has a statement on their website dispelling the rumor and directing folks to its Terms of Service which state (but are subject to change):

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: 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). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

How did the viral post get started? One explanation is youthful optimism. Another possibility (and very interesting possibility) is that the post was started in the EU where organized challenges to Facebook’s Privacy Policy and Terms are Services are being made for non-conformance with EU laws. The EU has different policies (from the US) regarding the use of data including photo archives and EU laws may require different consent mechanisms. (Since Facebook is a US company, it is likely that their Privacy Policy and Terms of Service are written in American legalese). While surfing through the website for Europe-v-Facebook.org (which is a group in the EU that is challenging Facebook’s Privacy Policy and has threatened litigation for non-compliance with EU law) I read this: “We were just informed that Facebook is soon proposing a new change to its privacy policy…. Facebook said so far that if 7,000 users demand the same changes they would have users give the chance to vote on them.” If this is true… it could be interesting… it could have started the viral post or one like it… and it could possibly change Facebook’s Privacy Policy and Terms of Service in the EU… and maybe other places too.

See also, http://europe-v-facebook.org/EN/en.html; http://news.cnet.com/8301-1023_3-57554497-93/viral-post-wont-copyright-your-facebook-updates/; http://www.facebook.com/legal/terms; http://newsroom.fb.com/Fact-Check; NY Times article: Law Students in Austria Challenge Facebook Policy on 12/5/12 and www.kasterlegal.com

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

November 15, 2012

Recording and posting concert clips: what’s legal… what’s not ⁶

*C O P Y R I G H T*, *Copyright: Fair Use, *Copyright: Infringement, *Copyright: Music, *Copyright: Permissions, *T R A D E M A R K, *Vanessa Kaster, *Website: Social Media

Just because it is easy to use your phone to record a clip at concert doesn’t give you the right to do very much with the recorded clip. There are multiple sets of legal rights at play in every concert performance which include:

Copyright in the music compositions and lyrics (often controlled by the publisher or sometimes the artist)
Copyright in the performance (often controlled by the label)
Trademarks of the band, club or venue
Band’s right of publicity
Contractual rights granting you the privilege to attend the performance (often on the ticket stub, or posted signs at the venue, or the terms and conditions of a website)
License granted by ASCAP or other rights manager to the club or venue for the performance.

Each of these rights gives the holder a monopoly to do certain things or exclude others from doing certain things. Excluding others (ie you with the recording device) can be taken seriously by all the rights holders. For example, club or venue owners can exclude others from recording on their premises. This means they can confiscate your phone until the end of the performance or ask you to leave if you are caught recording a clip of the concert.

Technically speaking, recording a clip of a concert for your own personal use is probably considered fair use. If you post the recoded clip to a website, chances are that one of the rights holders listed above will contact the website and request that the clip be taken down. If this happens, the clip will come down and you may forfeit your right to access or use the website where you posted the infringing clip.

Rights holders generally try to maintain a balance when it comes to enforcing their rights; since, they don’t want to alienate their fans and patrons. Although, given the history of how aggressively the music industry went after folks who were targeted for illegally downloading music… this could change.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: Other posts on music copyright at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/copyright-music-copyright/; Music Law 101: Legal Issues Surrounding the Recording and Posting of Concerts, by R. Friedberg; @iplegalfreebies and www.kasterlegal.com.

September 11, 2012

What happens to your photos once posted to Facebook? ^Reply

*C O P Y R I G H T*, *Copyright: Photos, *Photo Releases, *Vanessa Kaster, *Website: Privacy Policy, *Website: Social Media, *Website: Terms of Use

Facebook thrives because people want to connect and share photographs and other content. However, connecting and sharing content on Facebook means that Facebook makes the rules for how the content is shared, used, copied and made available to others. (Facebook also has the privilege of changing these terms of use at anytime and is known for making significant policy changes frequently. For the current Terms of Service see –>; http://www.facebook.com/legal/terms).

Here are three significant components of Facebook’s current policy concerning photographs that you post to Facebook (these are the terms as of today… and may change tomorrow):

…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). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. (Subject to how you set the privacy and application settings on your account).
When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
Facebook respects the intellectual property rights of others and is committed to helping third parties protect their rights. Our Statement of Rights and Responsibilities prohibits users from posting content that violates another party’s intellectual property rights. When we receive a valid notice of IP infringement, we promptly remove or disable access to the allegedly infringing content. We also terminate the accounts of repeat infringers in appropriate circumstances.

What can happen to your photographs when you post it to Facebook under these Terms? The short answer – ALMOST ANYTHING… especially if you have left the default settings on your Facebook page to allow public access to the content you post on Facebook. If however, someone else posts a photograph that you took and own the rights to… then you have a bit more muscle and can request that Facebook remove or disable access to the photograph by reporting a copyright infringement to Facebook.

To report a copyright infringement on Facebook go to –>; https://www.facebook.com/help/?faq=190268144407210 …you will see that there is an online form as well as a contact email [ip@fb.com] and mailing address.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

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