Photo Attorney

Feb 17, 2009

Q&A - Can Facebook Use My Photos of People?

Q. If I upload some images of people to FaceBook, can Facebook use those images in one of their advertisements? Can I be held liable for how Facebook uses my photograph?

A. Generally, the publisher of a photograph, rather than the photographer, is responsible for getting permission of the person in a photo to use the person's name or likeness for a commercial purpose. This was the issue in the Virgin Mobile case reported in my July 15, 2007 blog.

However, as discussed in yesterday's blog, Facebook's Terms of Use state:
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy . . . any User Content you (i) Post on or in connection with the Facebook Service . . . and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

Plus, under the TOU, you agree to indemnify Facebook (see my July 21, 2006 blog for an explanation of these contract terms):
You agree to indemnify and hold Facebook Entities harmless from and against any claim or cause of action brought by a third party as well as any related damages, costs and expenses (including reasonable attorneys' fees) ("Claim") arising out of or related to your (a) use of the Facebook Service or any of the applications, features, content or materials related thereto; (b) violation of these Terms; (c) violation of the rights of any other person or entity; or (d) breach of the representations, warranties and covenants made by you herein. Facebook reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Facebook, and you agree to cooperate with Facebook's defense of these Claims.

Do you really need any more reason to not post photos on Facebook?

Thanks to David Redding for submitting this topic.