Facebook’s Photo Fiasco: Protecting Your Personal Images

by · September 10, 20136 comments

Once again, Facebook has proposed changes to its governing documents, stating the social network’s right to incorporate users’ images into advertising. [Check out the redlined versions of the “Data Use Policy” and “Rights and Responsibilities” for details on the proposed changes.] Understandably, site users became upset and privacy groups raised a ruckus, prompting Facebook’s top brass to put the pending changes on hold (for now).

The basics of intellectual property haven’t changed: you still own copyright in your photos. Moreover, you already gave Facebook “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post,” even prior to the controversial changes being proposed.

You might want to give the current terms a look, because that language they use is pretty sweeping. You could also read my earlier post on who owns the social media content you post to the various networks.

The key point is this: Facebook already had the right use your images. You probably just didn’t realize it.

As was the case with Instagram’s much maligned (and ultimately reversed) terms of service update, the company hasn’t taken many new rights: it’s just clarified which rights you’ve already given up by using the service.

But this only covers intellectual property rights, and there are other laws marketers need to comply with when using images.

For instance, using images of children in advertising without parental permission could violate state and federal laws protecting minors. In fact, anyone whose image is used in ads would potentially have a claim against the advertiser if he or she did not sign a model release.

Most companies wouldn’t want to take on such expansive liability risks, so they’d likely stick to using profile photos (if anything).

Yes, Facebook could use your family photos in advertising, but they probably won’t (although they might use your profile picture). Yes, people could quit using Facebook, but they probably won’t.

So we’re all back to where we started, but with a clearer understanding of the virtual “skeleton key” we give social networks and other sites when we sign up for their “free” service.

Remember that you’re not paying for Facebook, which “is and always will be free.” (Personally, I think “free” in that phrase should be in quotes.) But if you’re not the customer, you’re the product, so don’t act surprised when the site tries to monetize the huge amount of brand related content that you upload on a daily basis.

If anything, be thankful for the reminder that you’re being willingly exploited to some degree. If you want to make absolutely certain that no one ever uses your photos without your express consent, I’d recommend unplugging from the Internet and taking up scrapbooking.

Barring that, change your privacy settings to opt out of having any of your content used in Facebook advertising. Navigating the process isn’t easy, but do it anyway. Putting the onus on users to do this may or may not ultimately be legal, but for now the responsibility to protect your information lies with you, so don’t drop the ball.

You might also want to refresh yourself on the current terms of service on Twitter, Instagram, and Pinterest, and make sure you understand what each site can do with your intellectual property. Forewarned is forearmed, as they say.

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About Kerry O'Shea Gorgone

Kerry O'Shea Gorgone

Kerry O’Shea Gorgone, JD/MBA, is a writer, speaker, lawyer and educator. She hosts the Marketing Smarts podcast for MarketingProfs, and teaches New Media Marketing and Marketing Campaign Development in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone

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