Time Investment: 5 minutes
Suggested Product: Payment Plan Contract
Despite the many status updates, frantic forum postings, and articles by photography industry blogs circulating now, Facebook and Paypal are not trying to steal ownership of your photography at upload.
We are at a day in the technology world where we blindly accept Terms and Conditions all the time without even reading. By not reading these Terms, you can be agreeing to things that may not be beneficial to your business or intellectual property use.
Although not reading these Terms can have negative consequences, these companies are big names for a reason. They are smarter than to take full ownership of your intellectual property (at least as of now).
We should also be smarter than to rely on the credibility of one-off posts on the Internet without doing our research. And we, as business owners, have a responsibility to not rely on company representatives information because the statements recently made by a Facebook employee asserting Facebook ownership over intellectual property was incorrect. There is personal responsibility in understanding what you are agreeing to when using systems such as PayPal and Facebook.
So, in order to understand what these Terms mean, it is fundamental that all Intellectual Property owners have an understanding of a license and an ownership release. Let’s dig in!
License versus Ownership Release
A license is an agreement between the Licensor, owner of intellectual property, and another, the Licensee, who is being provided, whether by fee or royalty, rights to use such intellectual property as defined in the license agreement.
For Photographers and other creative types, one would think this is relatively easy. For example, many photographers want to retain their copyright (ownership of the intellectual property) and provide a print release (providing a license to print to non-owner party – such as a client).
By a quick examination of the Terms for both of these industry giants, you will see that a license for use of the intellectual property is being used, and not an ownership transfer. This license typically means they’ll use images in marketing but the individual Terms define their use, even if written very broadly.
A few weeks ago photographers were up in arms about changing to a new payment processor because of Paypal Terms.
The new Paypal Terms are as follows:
“When providing us with content or posting content (in each case for publication, whether on- or off-line) using the Services, you grant the PayPal Group a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights against the PayPal Group, its sublicensees or assignees. You represent and warrant that none of the following infringe any intellectual property right: your provision of content to us, your posting of content using the Services, and the PayPal Group’s use of such content (including of works derived from it) in connection with the Services.”
Under the new PayPal User Agreement, if you provide PayPal with “content” on its site or posting “content” using its PayPal Services then you are granting them a license. The word “content” is vague and not defined. It does not mean that anything that you upload through PayPal will belong to them. PayPal CANNOT take your bank account, phone number, etc. And, probably most importantly, it doesn’t mean that PayPal owns any of your intellectual property that you upload to them Likewise with Facebook, read on.
Despite fear-inducing screenshots of a misinformed Facebook employee in posts on PetaPixel and StopStealingPhotos.com, Facebook doesn’t own your intellectual property either. In fact, this idea isn’t new to the users of Facebook as I have repeatedly blogged about their changes and bogus Facebook status updates claiming your photographs as your own for the last few years.
In fact, Facebook has been the subject of such much past speculation and outrage (rightfully so if it were to be true!) in the past that they now have explicitly stated in their Terms that you (the IP owner) retain ownership of your property.
“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”
Despite what any naive Facebook sales representative may have stated to a customer, Facebook has a legal and marketing grasp on the fundamental intellectual property ownership of the site and is not taking ownership of your images.
What is the bottom line?
How can we, as business owners, complain when Clients don’t read or understand these Terms if we aren’t going to seek to understand these ourselves? So, always read the original document of what you agree to. Or simply not use their system – for a payment processor you could use Square as an alternative, however, can you simply walk away from Facebook – a huge social media place where the majority of users are? This will depend on your understanding of the Terms and desire to protect your intellectual property.
I find it interesting that a few weeks ago, I posted this video and had a reader comment I was fear-mongering. However, it seems that many want to not believe the reality that may lurk in the Terms for a site or application. Even more so, apparently even Facebook representatives may be misinformed. Therefore, it is imperative we take up that responsibility to understand how the Terms impact our business because at the end do the day it impacts us, not that representative behind a computer somewhere.
For now, these large companies understand outrage could cripple their user retention. However, we need to be vigilant for the future in protecting our intellectual property as the winds may always change (as we’ve seen it changing from repeat updates and changes closer to that line).
You are now at the beginning of preparation with this legal crash course on license versus ownership release to see how these Terms changes can impact you and your business.