By Kerry O'Shea Gorgone Every so often, a rumor makes the rounds on Facebook that the company’s onerous terms of use have been changed, and someone else owns your precious family photos, posts, or other content. Although the rumor is eventually debunked, posts urging users to post some type of legal claim to their own content persist for days afterward, and often resurface months later, along with a fresh iteration of the “urban legend.”
It’s impossible to stay up-to-the-minute on the ever changing terms of use for every social network, but here’s an overview of where you stand as of now on a few key sites, with a brief introduction to intellectual property as it relates to social media.
First, and foremost, if you create it, you own it, until you say otherwise. From the moment you “fix” your original creative work in a “tangible medium,” you own copyright in it. Typing a blog post on your laptop or taking a picture with your smartphone counts.
Content that you create and then post to Facebook, Twitter, Pinterest, or anywhere else is still yours. You may have made it easier for people to infringe your rights by copying your work, but you haven’t given up those rights.
Here’s the catch: you can alter your legal rights, to a point, just by clicking “Okay, I’ll accept whatever terms you have buried under this link: just let me use the site already.” Here’s what each of the following social networks has to say on the subject of ownership:
Pursuant to the Facebook Terms of Service, you own your content. However, you do give Facebook certain rights, including a license to use any of your content that you post on or in connection with Facebook. If you don’t like this, you can delete your content, but deleting won’t work if “your content has been shared with others, and they have not deleted it.” (So, essentially, once you’ve shared it, there’s no taking it back.)
Copyright does not protect URLs or short phrases. Consequently, it’s difficult to create an original creative work in 140 characters or less. (A haiku, perhaps?) If you do manage to meet the threshold of originality for copyrighting a tweet, you own that work per Twitter’s Terms of Service.
The popular taste graph’s much maligned terms of service doesn’t actually vary that much from those of other sites. I do love the phrasing, though. “You retain all of your rights in all of the User Content you post to our Service.” ‘Retain’ implies you have some rights in what you’re pinning to begin with, which of course isn’t the case if you’re pinning content off of someone else’s site.
By pinning “your” content, you give Pinterest a license to move it, change it, display it or otherwise use it, but you still own anything you owned originally.
Just like other sites, the content doesn’t disappear just because you delete your account: anything that’s been repinned by others will still be accessible on those boards.
Per the terms of service, when uploading a video to YouTube, you not only retain rights on what you post, but you’re affirmatively representing to YouTube that you are not infringing the intellectual property of someone else. You also grant YouTube a license to use your content royalty-free, and grant your fellow YouTube users a license to access your content through the site.
So, you own what you create during your lifetime, unless you signed a work-for-hire agreement to create social media content for someone else. But what happens after your lifetime?
Who owns your social media profiles and content after you die?
Macabre though this may seem, estate planning for your social media content is important. The law is unsettled in terms of who has the right to access a user’s social media profiles after the user’s death.
You (or your estate / beneficiaries) would inherit any intellectual property rights that survive you. Copyright, for instance, lasts for the life of the individual creator, plus 70 years. In the case of a work-for-hire, copyright lasts even longer. Valuable assets like photographs, poems, artwork and musical compositions and recordings will be administered with your other assets like real estate, personal property, etc. Facebook doesn’t inherit copyright in your masterfully edited self-portrait picture just because you’ve passed away.
Gaining access to a deceased family member’s social media content can be problematic. Citing Federal privacy laws, a court recently refused to grant parents access to their daughter’s Facebook messages after she died under mysterious circumstances. Procedures for accessing an account under these circumstances vary from site to site, so plan ahead.
The safest bet is to provide a list of network usernames and passwords to your attorney, the executor you name in your Will, or a (very) trusted family member or friend. There are even online tools like Legacy Locker that you can use to provide access in the event of your untimely demise. This way, someone will be able to access your social networks to delete your profiles or post a message informing connections of your demise.
Would you rather they find out after they post “Happy Birthday” to your timeline in six months? Just saying.
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