Recently, one social media site’s public announcement highlighted this question in appalling clarity. On December 17, 2012, Instagram announced that it had the right to sell any photo that you took and uploaded using its service – in other words, to “commercialize” it. (See CNET’s article about the change in terms: Declan McCullagh, “Instagram says it now has the right to sell your photos,” CNET, Dec. 17, 2012.)
If you are unfamiliar with Instagram, it used to be a standalone company, but was recently acquired by Facebook and is used on Facebook to share customized photos with your networks.
Here’s the rub: the right to distribute (or not to) is actually an exclusive right set forth in the Copyright Act as being owned EXCLUSIVELY by the copyright owner. 17 U.S.C. § 106. Not by a vendor who handles the distribution.
Unless the author has licensed its ability to redistribute an “original work of authorship fixed in a tangible medium of expression” (as an original photograph surely is) to another, any redistribution of a published work constitutes copyright infringement under 17 U.S.C. § 501, and carries certain remedies and penalties depending on the context.
The Copyright Alliance points out that this explanation does not meant that Instagram cannot commercialize your images – in fact, the text that Instagram removed was merely a disclosure of the ways in which it “can” use your photos:
The lesson to be learned here is to be proactive with all of your social media use – understand what Terms of Service apply to your use, and whether the company will be using your information in a way with which you are not comfortable. Review carefully to determine whether by using their site, you automatically grant the site a license to use your content (your text, pictures, video, whatever) without specific notice or obtaining your consent to that specific use.
And, try to stay on top of changes to these policies in case changes are made that further impose on your privacy or intellectual property rights. Many of these policies have a “these terms can be modified without prior notice” provision, but the sites may also host blogs that announce new features or changes to their services. You might want to subscribe to them (through RSS feeds or email) so that you are notified promptly of any advertised changes.
Here are links to some of the more commonly-used social media sites, and their relevant blogs (if available):