SOCIAL MEDIA RIGHTS

If you’re a professional photographer, social media is vital to your operation. Not only do you probably advertise heavily on Facebook, Instagram, or Twitter, but your clients in many cases hire you specifically so that they can post pictures you take on their own social media. Many wedding clients will buy a hardcover wedding album, but almost every wedding client will at least post their pictures on Facebook. When it comes to posting your proprietary images on social media, there are three issues to discuss. The first is how to prevent that sort of theft before it even happens, with your own contracts. The second is how to react when your images are posted on social media in a way you don’t like. And the third is what rights those social media platforms themselves have over your images when you or your client posts them.

 Let’s start with a basic scenario. You are hired by a client to photograph their wedding. The client posts the pictures in a large Facebook wedding group, with no watermark and no proper credit to you. Thousands of potential customers are seeing your beautifully crafted and carefully edited image and commenting wildly about how good it is, but none of them have the first clue who you are.

 So, the first issue: how do we prevent this from happening in the first place, or at least put you into a strong position to react once it has happened? The answer is fairly simple, and something that most photographers already have in their contracts: an extremely limited usage rights provision. When you state in your contracts how the client may use the images, you should state very clearly that a) you own the copyright, b) the client may use the image only for personal purposes and never commercial purposes, c) the client may not alter the image, and most importantly, d) the image must always include proper credit. Your contract can also include a liquidated damages provision that states in the event of a breach, the client will owe you a certain amount of money. And thus, when you see that your client has posted the image to a huge Facebook group, you can simply contact them, tell them that such an uncredited posting is a violation of your contract, and unless they go back to their post and edit it to give you proper credit, you will sue them and be entitled to at least the liquidated damages, and potentially also your attorneys’ fees. This will hopefully set a fire under your client to edit the post swiftly.

 But let’s say the client moves out of the country or becomes judgment-proof. You can attempt to contact the moderators of the group, and maybe (probably, in the real world) they will edit the post to give you proper credit. But the sake of argument, what if they refuse? You can still get the pic at least taken down, by sending a DMCA takedown notice.

 Most photographers will be aware of the DMCA, the Digital Millennium Copyright Act, or at least aware of DMCA takedown notices. But if you are unfamiliar, in essence the DMCA allows large content posting platforms, like Facebook or Instagram, to escape liability when their users post infringing content - but only so long as they follow the DMCA rules. And the DMCA requires platforms to immediately take down potentially infringing content if they receive a notice stating clearly that this content is infringing, until the matter is legally resolved. Thus, if you send Facebook itself a DMCA takedown notice stating that you own the copyright to this image, then the image will be taken down. This doesn’t really solve your problem, unfortunately; you were getting a lot of attention if not the proper credit, but now you’re not getting any attention at all. But at least by taking down the photo, you can exert some control over your image. You could even repost it to the group with the proper credit, although you may not get the kind of viral attention the original post received.

 Now on to the last issue: what rights does Facebook itself have over your images? The answer, in this case, is both quite a lot and none at all. Facebook, for example, states that by posting content to its platform, you give it a “non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content [...].” You still own any images that you post on Facebook (and since Instagram is owned by Facebook, their terms are the same), and you can terminate Facebook’s license over your images by just deleting them, but so long as you have an image up on a social media platform, that platform can use it in pretty much any way it wants - including sub-licensing the image to a third party. You could, theoretically, post a selfie on Tuesday and see it on a billboard for Apple on Wednesday, because Facebook has the right to sublicense any image you post.

 But the trick is hidden in plain sight. Yes, you give Facebook a broad license when you post images. But you didn’t post that image on the wedding group - your client did, and your client didn’t have the right to post it without proper credit. Because your client didn’t have the right, Facebook doesn’t have the right.

 Now, as a final exercise, let’s circle back to where we began, to the contract with your client. You’ll recall that contract included specific and limited use provisions, stating expressly that you retained the copyright and that the client could only use the image in limited ways, for personal purposes, and only with proper credit. What if your contract did not say this, and instead you sold the copyright to your client outright? Or what if your contract didn’t include a requirement for proper credit, and only stated that the client could use it for personal purposes? You would be in a much, much harsher position. If you sold the copyright outright, you would have very little or no ability to remove the photo, because your client would now be the owner and could use it however they please. And if you didn’t include an express credit requirement, the client would have been within her rights to post the image on a Facebook wedding group - the client isn’t trying to make money off the group or the photo, so it would be hard to convince a court that the client had used the photo for commercial purposes, despite the fact that you are losing a ton of potential customers. The whole issue can turn on the smallest provisions of a contract.

 Copyright is all about controlling the flow of copies, but understand that social media platforms are vast pools of copies upon copies, and posting an image on social media is like pouring a drop of water into the ocean - you’re never going to fully get it back. Make sure that you keep hold of your work, that your contracts are thorough, and keep the power inherent in your pics on your side by working with an attorney.