This factsheet, developed in collaboration with Own-it, looks at the terms and conditions of social media websites to help visual artists understand their rights when using platforms such as Twitter, Facebook or Instagram to promote their work.
Why should artists look at the terms and conditions?
Many of us overlook the terms and conditions for social media websites that we use and yet this is what determines our legal relationship with them. If you are using social media as a way to promote and advertise your work, then it is important you understand what you are signing up to.
Of course this is easier said than done and quite often the legal jargon can be a barrier to understanding the terms and conditions and knowing what rights you could be signing away. That’s why we have put together this factsheet to highlight the key things you need to know.
When you sign up for a social media account you will be asked to agree to the website’s standard terms and conditions. These not only govern what type of content you may post on the website but also how that content may be used by that website and others.
If you intend to promote your work through social media the website terms may require that you do this in a specified area (e.g. Facebook pages) or with a different type of account (such as a business account instead of a normal user account, e.g. Pinterest). You should also be aware that certain content may not be permitted on the website, e.g. nudity and other extremely graphic images or depictions of violence.
Who owns the rights to creative content posted on social networking media websites?
Copyright generally belongs to the creator – the photographer or artist, for example - unless there is an agreement to the contrary or it is created in the course of employment in which case the employer will own the copyright in the work. As the copyright owner, you own the exclusive rights to reproduce, copy, communicate, distribute and license your creation as you see fit.
But what happens when you decide to post your work on social media or photo-sharing websites? While you generally retain the copyright, once you post your work on these websites you effectively grant a licence for your work to be used in accordance with their terms and conditions.
What is a licence?
A licence simply grants someone permission to use your content in a specified way for a specified purpose. It is still, however, a binding contract so it is vital to be aware of the terms applicable to the user and host. When you grant a licence you still retain the copyright to all of your content. This differs from an ‘assignment’ where the copyright is permanently transferred to someone else.
Reading the terms and conditions – in detail
Legal wording - what to look out for in the terms and conditions
When agreeing to a social media website’s terms and conditions, you are effectively confirming the terms of their licence. This licence is legally binding.
You may come across any of the following words or phrases:
'Royalty-free': this means that the service provider doesn’t need to pay you for the right to use your work, even if the service provider uses your content commercially. If the licence is non-exclusive you are of course free to licence the same work to others and ask them to pay for the usage.
'Sub-licensable': this means that the licensing party can grant rights of use to other parties. This is essential for social media websites because users would not otherwise be able to share your content with other users or repost it.
'Modification': websites request this right to adjust the size or display properties of the image for example. However this could potentially include other modifications you might not have approved of otherwise.
'Incorporation into other works': this grants the right for your content to be used as part of other copyright works, for example, a photograph representing the website that includes your content. You would still retain the copyright in your content, however a separate copyright could also exist in the new work.
'Perpetual': this does not necessarily mean “forever” if there are provisions made for termination. In such a situation the licence may continue indefinitely until it is terminated.
'Irrevocable': this means you technically cannot terminate the licence. However other terms, such as a “specified termination condition”, may decide whether it really is non-terminable in all situations. For example Twitter, Facebook, Instagram, Pinterest and Flickr currently require you to grant them a non-exclusive, royalty-free, transferable, sub-licensable, worldwide licence to use your copyright protected works. These licences are therefore extremely wide, mainly because the model allows users to share and reproduce that content across the website.
One of the key terms to look out for is the purpose for which a licence is granted. This may be specified as “for the sole purpose of promoting the website” or, a purpose may not be specified at all. It is worth noting whether the purpose of a licence includes commercial use of copyright protected work.
Most social media licences are described as “worldwide” and use is not limited by geography. Additionally, the legal jurisdiction which governs the licence may allow for different treatment of your content than your home jurisdiction. Most licences for social media websites are governed by United States law and require you to submit to the jurisdiction of a court in the USA. If there were any disagreements regarding your content it is likely that you would be required to pursue these through the country which governs the licence.
Indemnities - who is legally responsible for what?
In general, when you sign up to a social media website’s terms, you are responsible for any claims brought against them by third parties relating to your content – for example where you upload content that infringes someone else’s copyright. This is known as an indemnity. Some websites have particularly broad indemnity provisions which mean that users are also liable for the legal costs of all claims made against the website, even if it turns out there was no infringement of copyright.
Social media websites do not generally accept liability for loss of data so it would be advisible to keep backups of any of your content offline. This is also relevant where you use one account across several platforms e.g. Google+ and Google Drive, as you risk losing access to your work.
Intellectual property infringement and takedown notices
Many social media websites require users to agree, when creating an account, that they own the rights to any content they upload. If someone has uploaded your copyright work without your permission, this is an infringement. It is customary, if not mandatory, to pursue such infringements via the website’s copyright complaints procedure. This may require some patience as not all social media websites provide contact details in a conveniently accessible place.
Changing the terms
Social media websites and other websites naturally change their terms and conditions from time to time to reflect changes to their business. Ideally the website should inform you of such changes. Certain terms of service state that the website owner may change the conditions “at any time”, and “without notice” to you. It is doubtful whether such terms are legally enforceable as a principle of contract law and it is important to bear in mind that other countries’ laws which govern your relationship with the website allow for this. In general however, the user cannot be expected to agree to new terms they do not even know about. It is also unlikely that your acceptance of new terms could be inferred by your continued use of the website. This article by Out-law
discusses this point.
Termination of the licence
A licence may terminate on deletion of the account. However, as mentioned above, some licences are specified as “irrevocable”, “perpetual” or both. The circumstances in which these can come to an end (if at all) are subject to how the rest of the licence is drafted. Where sub-licences have been granted (e.g. for sharing) these may not be terminated by the terminating of the original licence with the website owner. This is typically the case on websites that allow other users to share your content.
Retention of your data - what does this mean for artists?
Some websites may agree to remove your content within a reasonable time frame. Depending on the structure of the website this may not always be possible. However, the type of licence granted may mean that upon deletion of your account, and subsequent termination of the licence, you may have already lost control over any content shared. It is very hard to erase your online presence as the nature of your licence means that other users may have re-posted your copyright protected works for use on their profile. As Pinterest puts it
, “copies of content shared with others may remain even after you delete the content from your account”.
This is particularly true in relation to social media websites that are highly public in nature. In a Telegraph article
, Callum Sinclair, Partner in the Intellectual Property and Technology group of law firm DLA Piper, says that Twitter's terms to which every new member must agree "grant extremely broad rights over your content… With these terms companies are saying 'you own your content, but we can just use it however we want.'"
Mr Sinclair explains "In reality there is little difference between your ownership and their licence when the terms of the licences over your content are this broad."
Using social media safely to promote your work – some tips
Should you use social media websites to promote your work as an artist or creative business?
This can be a very cost-effective way of promoting your work but you need to be aware of the risks when doing so. Visual artists such as photographers and illustrators, whose work is two-dimensional, are particularly vulnerable as this type of work can be copied and used by others without great difficulty.
Additionally, your account can be deleted any time at the discretion of the service provider if somebody claims that you violate third party rights or breach the terms of service in any other way.
We recommend therefore that you shouldn’t use social media websites to store all your work or post all your newest work. If you use them you should only post what’s necessary to promote your style and range of work to direct people to your website, where you are in control of your terms and conditions. Be aware that the commercial value of your work may be reduced once you have posted it on social networks, because it can be used by others for free. It might be better to create content especially for the purpose of self-promotion.
Disclaimer: This factsheet is offered as a general guide to the issues surrounding copyright in this area. It does not represent an exhaustive account. It is not intended to offer legal advice and should not be relied upon as such. We strongly recommend you seek specialist advice for any specific circumstances.