The Silver Lining | Why You Shouldn’t Worry About Facebook’s New Copyright Policy

I’ve seen lots of worrying on Twitter and various teen lit sites/loops this morning over Facebook’s new Terms of Service. If you don’t know what I’m talking about, go here and read up on it:

Don’t freak out about this! I sent the link to a friend who is an Intellectual Property lawyer as well as an avid Facebook user. She promised me that she sees this type of thing in contracts all the time. It’s not unusual and is much more common than people may think.

Also, this is NOT new to Facebook’s Terms of Service policy. But they did change it so that it now covers archives. Meaning, if you post a photo and then take it down or terminate your account, Facebook still owns rights to it. Basically, the last policy granted Facebook the license solely because they had to copy your uploads in order to run the Facebook service. Now they are kind of like, no, we want it for everything, including to sub-license!

What does this mean for writers who post excerpts from published books, book covers, or author photos in which the photographer retains some of the rights? It means that Facebook still CANNOT use these freely despite their terms of service policy. The IP copyright belongs to you, the publisher, or the photographer and Facebook would be in violation of THAT copyright if they chose to sell the items for their own benefit. So despite this seemingly horrible policy, Facebook still must comply with other copyrights. Think about it. Let’s say a teen posts a photo of the Twilight cover as their Facebook profile picture. I’ve seen that loads of times. That teen does not own the right to that photo and it doesn’t mean Facebook does either. The publisher/author (or whoever it says in the contract that I have not seen) owns the right. So if Facebook then used that for their own purposes, Little Brown and Stephenie Meyer could and should sue them. However, if Facebook is sued, they may sue you in return, claiming you violated their policy by posting photos in the first place.

If you post unpublished excerpts, it’s like anything on the internet. You lose first publication rights and it is a bit unclear if Facebook then gains them. My lawyer friend wasn’t sure about and didn’t have time to check because she was busy at work. But she *thinks* Facebook may gain rights to it, and they could also create derivative works of the excerpt you’ve posted and be completely allowed. But it is subject to your privacy settings. So I advise you against posting excerpts there if the work isn’t under contract elsewhere.

What it does mean, though, is that any photo you post of say a book signing or just you and your friends can then be used by Facebook. My lawyer friend used the example that if she were to run for President, Facebook could go through all her archives and sell photos of her to the media. Haven’t you seen news stories on TV that post facebook or MySpace photos of the person involved? I have. And it just means that Facebook could technically get a fee for these. Facebook could also use your photos for promotional purposes, like if they made a commercial. They could also alter your photos.

She also said Facebook defines this as "user content" so information you post in your profile could potentially be used by them as well. Again, say if they did a promotional campaign where they advertise how people connect via common interests such as their favorite books. (I make commercials for a living so apologies that all my examples are in this realm).

That being said, my IP lawyer friend is not going to stop posting things on facebook and she urged me not to as well. As long as you’re smart about what you post (like, it might not be in your best interest to post a Michael Phelps-recent-scandal-esque photo of yourself), then it shouldn’t really concern you.

In other words, Facebook is not going to take a story you post and then go and create another story and sell it. The real purpose of this license is to protect Facebook from you suing them. Although it’s a bit broader than that. I hope this helps to clear up the freak out.

Also, if you have any questions concerning this, feel free to leave them in the comments and I’ll pass them along to my IP lawyer friend.

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4 Responses

  1. I’ve seen quite a few people on my flist worrying about this. I’m not, since I just have a Facebook for school stuff, but it’s nice to have a more in-depth explanation about it!

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