Photographic Copyright in the Age of Social Media and the Ever-Present Camera

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By Silas Alexander

Every day, smartphone users collectively take more than three billion photos, millions (if not billions) of which are selfies, autobiographical captures of the human condition. But while our digital photo album continues to expand, few people understand the rights they may be giving up with the click of the share button.

Our collective understanding and treatment of photography has shifted from a perspective of artistry and relative scarcity to one of abundance and instant share-ability. However, the copyright laws that protect artists and creators are founded in doctrines that are decades, and even centuries, old. Thousands of lucrative social media accounts rely on instantaneous dissemination of original works, generally operating in a legal gray area outside the bounds of traditional copyright law in a way that has yet to be satisfactorily explored by the courts. The accelerated development of digital photography, online storage, and methods of reproduction raise a bevy of legal issues that are certain to gum up courts for decades to come.

Is my smartphone photo really “mine”?

Boiling down copyright protections to their most basic level, owning a copyright in a photograph means having intellectual property ownership. For a photographic copyright, the owner has exclusive rights to the property, including the rights to:

(1) reproduce the photograph;
(2) prepare derivative works based upon the photograph;
(3) distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) display the photograph publicly;
U.S. Copyright Act at 17 U.S.C. 106

Though no court or judicial authority has seriously posited that a photograph taken by a smartphone does not instantly give the photographer a copyright in the image, terms of service for many social media sites render the traditional exclusive rights outlined above essentially meaningless. In an increasingly digitally connected world, many smartphone users snap photos with the specific intention of sharing them online. However, once the photos are shared through online platforms, many photographers give up exclusive rights to their photos without even knowing it.

What am I giving up when I post photos to social media?

Upon snapping a photograph with a smartphone or digital camera (or traditional camera, or lithograph, or wood carving, etc.), generally the person capturing the image is granted a copyright in the photo. When that photo is posted to a social media site, however, the legal waters become muddied. For the sake of brevity, we will only look to Snapchat’s terms of services agreement as an example, but many other social media sites require similar concessions through their terms of service agreements.

Snapchat’s terms of services agreement, which every user must accept, requires that users grant Snap Inc. and its “affiliates a worldwide, royalty-free, sublicensable, and transferable license” to any non-public content “to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that content.”

This policy dilutes the user’s exclusive rights to: reproduce, prepare derivative works, distribute copies, and display the photograph publicly. These are some of the fundamental protections upon which copyright efficacy hinges. And for public content (which includes story submissions that are set to be viewable by “Everyone”), the license granted to Snap Inc. is even more broad!

In addition to granting Snap Inc. all the rights described above for non-public content, for public content, users grant Snap Inc.:

“a perpetual license to create derivative works from, promote, exhibit, broadcast, syndicate, sublicense, publicly perform, and publicly display Public Content in any form and . . .  [a] perpetual right and license to use your name, likeness, and voice, including in connection with commercial or sponsored content. This means . . . that you will not be entitled to any compensation from Snap Inc., our affiliates, or our business partners if your name, likeness, or voice is conveyed through the Services, either on the Snapchat application or on one of our business partner’s platforms.”

Not only does this broad agreement grant Snap Inc. various copyright privileges to your shared content, it also includes the signing away of protections for an individual’s right to publicity (often also referred to as “personality rights”).

What does this mean for copyright law and the average person?

The trend towards social media giants as perpetual copyright licensees means that an increasingly concentrated group of companies holds the usage rights to millions and millions of users’ shared content. This consolidation of copyright quasi-ownership could erode public belief in the value of copyright protections overall, as a younger generation becomes used to the concept of voluntarily giving up rights to their own personally-generated content and rights to aspects of their fundamental personalities themselves.

 

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