Some Scenarios

To give you an idea of how your images may or may not be used according to the TOS, let’s pretend we have a photographer, Melissa, who has posted a photograph of a cow on top of a lighthouse.

A. Can the hosting company create a coffee table book called Stranger than Fiction, which includes Melissa’s photograph?

Photobucket — yes. Twitter — maybe. All other sites — no.

In our opinion, Photobucket TOS (as quoted here) creates a license that is probably broad enough for this kind of use by the Company. If Melissa changes her mind and places restrictions on the photograph, then further distribution would be limited to the Photobucket services (which would probably make the coffee table book a bad idea).

Twitter does not have the same kind of explicit examples that Photobucket uses, but it does have very broad licensing language:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

As for the other sites, they all appear to state that the license given to the company is limited to the companies’ services and that Melissa would have the right to terminate that license at any time by removing the content or terminating her account. In my opinion, it would be hard to stretch the definition of their services to include the sale of a coffee table book.

B. Would a user, who owns a T-shirt company, be able to use Melissa’s photograph to create and sell a new T-shirt design?

  1. Photobucket — yes. Twitter — maybe. Same as in hypothetical A.
  2. Flickr and YouTube — no. Both sites specifically state that you cannot copy or use another’s content for commercial purposes.
  3. MySpace and Facebook — no, but not as clear. Both sites state that users may not infringe another’s copyrighted content. Unless there is express language (as with the Photobucket TOS), copyright law would not allow a user to copy a posted photograph and make a derivative work, like a T-shirt. However, the TOS are not clear enough. The type of infringement they discuss is primarily, if not exclusively, directed toward actions that take place on the site. For example, a user may not post Melissa’s photograph and claim it as his own. The lack of explicit language could create confusion as to what rights Melissa has granted to other users when she chooses to post an image for them to see.

C. Would a user, who thinks Melissa’s photograph is the funniest thing he’s ever seen, be allowed to launch an e-mail chain letter, which includes the photograph.

  1. Photobucket and Twitter — yes.
  2. Flickr and YouTube — maybe. I think that the negative implication of the language prohibiting the copying or distribution of content for commercial purposes, could give rise to an argument that Melissa has granted other users the license to copy and distribute her content for non-commercial purposes.
  3. MySpace and Facebook — still not clear. MySpace is the same analysis as above. Facebook might be even less clear because it seems to imply that once Melissa has chosen to share her photographs with certain people, they retain the right to keep it posted on their pages, thereby sharing it with others. Even though this might not grant them the right to send the photograph to others via e-mail, the TOS could be more clear.

In conclusion, it is important to map out your goals for social networking, understand your rights, and monitor conditions as you navigate the rapidly changing world of social media.