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Nov 26 2012

Viral FB Copyright Notice Of No Use and Largely Unnecessary Unless You are in the Business of Selling Images and Videos

OK I have received many inquiries from people around the country about “FB’s new Guidelines” or “IP issues now that FB is public.” Just about every FB user has seen a proliferation of folks posting a statement about “owning their P rights” etc. It look something like this:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (As a result of the Berner Convention). For commercial use of the above, my written consent is needed at all times.

(Anyone reading this can copy this text and paste it on their Facebook Wall). This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

OK – so first of all The Berne (not Berner) Convention, The Rome Statute and the UCC have no effect on protecting your posts. Secondly, there are no “new FB” guidelines in this area. The guidelines are the same as they have been once FB began. Here is what YOU (and I) agreed to when yo signed on for FB:

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.

That sounds sweet, right? Well, here is the part of their general privacy policy that causes problems:

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.

To my knowledge, YouTube, Instagram and the other similar sites do not have this language which essentially is granting permission to FB to use YOUR intellectual property for commercial gain. They can re-sell, re-license, re-transfer the IP to whomever they want. In my opinion, this would be an enforceable assignment of copyright. If you are not happy with this advice, here are your options:

1. Leave FB forever. Not likely, right.
2. Delete all your images, videos and writings. Of course, prior ones that were shared with others who did not delete them would make this step useless. Since the whole point of FB is allegedly to share with others, deleting your prior posts and uploads would be valueless unless everyone you shared them with also deleted them.
3. Place copyright management information or systems on all your uploaded images and videos. Watermarks, copyright notices, encryption or passwords are all easy enough now to include on an image or video. This means that if FB or anyone else re-distributes all or part of the image or video without the copyright management information (as it is legally called) they would be liable under Chapter 12 of the Copyright Act. You can give access to anyone you want to see the IP you create or if you are just watermarking or placing copyright info on it, then at least it will go out with your name and information on it. You should also set your privacy policy restrictions on your FB to not allow apps (farmville, etc) to share and sell your information.
4. Only post pictures and images with people in them. FB does not include a generic model release in its privacy policy (that would be harder to do ). Therefore, since most states do not allow the commercial use of a person’s likeness without the express written permission of the person or persons shown in the photo (even if it is only their knuckle or pinky toe), FB could not make a commercial use of it. That gorgeous Hawaiian sunset you took a picture of – yeah well FB could make a screensaver, wallpaper, poster of it for sale and not give you a dime for it. Your poorly worded, misspelled copyright notice would have no effect at all.
5. Relax. That’s right relax. How many people have ever made money off one of your posts or re-sold pictures of your Uncle Lenny’s cat? You should be so lucky as to have Mark Zuckerberg take an interest in any IP you create. Most of the people who have posted this notice have also posted dozens of memes, somee cards, newspaper articles, etc, that they did not create. Now all of a sudden they are concerned that a multi-billion dollar company is going to steal their material. The vast majority of what’s posted is of no interest to anyone but the poster and their FB friends (sorry to break this news to you). Now I have many FB friends and clients who are entertainers, musicians, personalities, photographers and other creators of IP that actually has a value in the marketplace. To them I would advise (and have) not to post anything they do not want FB to re-sell. Or at least follow rules 3 and 4 above.

Please remember, that FB posters have only assigned their IP to FB not anyone else on FB so you still own whatever IP you have created and it is only FB that can profit off of it without paying you. By the way Mark Z., if you are reading this feel free to re-post it or do whatever else you want to do with it.

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