Retaining Artistic Control of User-Created Content on Facebook and MySpace

So I think since my Facebook and MySpace posts are so popular, I’m going to do a series of comparison blogs between the different aspects of each.  This one will be a comparison of each sites “Terms of Service” in relation to user-uploaded content.  We’ll start with Facebook, since it’s “terms” are considerably vaguer than the MySpace policy.
To contextualize the comparison, I’ll use photography as the case… since it is something that I have a little experience with on a personal level as well.
 
“By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire.”

So I’m reading this legal mumbo jumbo as… Facebook can use and redistribute any photo you upload to their site.  While it claims it is only for any purpose on or in connection with the Site or the promotion thereof it does not clarify whether or not they will collect money for the use.  Further, the term promotion could incorporate many types of use.  For example, when the Virginia Tech Tragedy occurred, CNN did a “special” on it, which talked about how Facebook was used in the aftermath.  They showed photos that had been uploaded to the Virginia Tech Facebook Group on the special.  My question is… did CNN pay Facebook for the rights to show the photos, or, did Facebook grant the rights to use the photos without consulting the owners of the photos first?  If either is true, then this is an example where the legal terms are actually detrimental to artistic-control.

Because of the qualifier publicly perform, publicly display, this allows Facebook to grant access to any of the images uploaded to Facebook, which will serve a promotional purpose for Facebook.  But let’s face it… all press or media could be considered promotional. 

Because Facebook’s privacy policy openly discloses that they only share proprietary Facebook information with third parties, and their privacy policy should actually protect someone who uploads an image that they don’t necessary want used in the media (including stuff like embarrassing or incriminating photos taken from High School), unless, of course, Facebook allows for the use of the photo.  

Facebook is a closed network remember… it is not viewable to non-members (except when they “occasionally provide demonstration accounts that allow non-users a glimpse into the Facebook world. Such accounts have only limited capabilities (e.g., messaging is disabled).”).  Therefore, theoretically and legally, what is on Facebook should stay on Facebook and only Facebook, unless a) the user grants permission for the use of the photo or b) Facebook grants permission.

MySpace is a different ballgame.  Their terms on user-uploaded content are very clear and precise (this is largely thanks to Billy Bragg). 

MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing (”posting”) any Content on or through the MySpace Services, you hereby grant to MySpace.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the MySpace Services…
The license does not grant MySpace.com the right to sell your Content, nor does the license grant MySpace.com the right to distribute your Content outside of the MySpace Services.

The first major difference is that the MySpace agreement is saying outright that user-content can only be used by MySpace on and within MySpace.  The next major difference is that MySpace says outright that they are not allowed to sell user-content… or the rights to use user content to third parties (It’s not that the Facebook agreement says that it does; it’s just that it doesn’t say it doesn’t). 

MySpace, however, is an open network.  Therefore they are not able to retain as much control over the site as Facebook can.  The user of MySpace can not assume as much artistic-control and privacy as the user of Facebook.  A picture posted on MySpace would be subject to fair-use laws, if the picture itself became a media story (as with the case of that poor girl who got denied admittance to the Education program because of the drunken pirate picture). 

For artists who wish to use these social networking sites as a potential space of professional development of their work, MySpace is perhaps the better of the two for exposure and getting their work out there.  However, I suspect more meaningful business networking takes place on Facebook, in terms of networks which yield direct results or professional benefits.  That would be something worth exploring anyway.

But back to the issue of artistic-control of user-created content… if users were smart, they’d start to take control of their content.  For example, YouTube videos which hit CNN… CNN should have to pay royalties for if it is used without permission.  I suspect that they have to get some level of permission anyway.  But I’m not wholly sure of that whole process.  It’s quite possible that people would be so happy to have their content reach a wider audience that they would volunteer it anyway (as is the case with the ireporter on CNN)… but that’s just the media’s sneaky way of getting free product.  That is, the product of a media conglomerate is “news”… which traditionally is gathered by a bureaucratic type system.  At each level of story production, or news gathering, the media conglomerate must output a certain amount of resources to create the product (paying reporters, cameramen, driving to the location of the story, etc.)… Gathering user-created stories and footage from the net means that the cost of production is vastly minimized… the events come to them, rather than them having to go to the event.  So in getting 5 seconds of fame in this day and age, the user actually minimizes the need and necessity for “experts” in the news gathering and reporting area.

This line of thinking leads into a whole different diatribe of mine which critiques the concept of celebrity as a post-modern art form, which is a slightly divergent topic for this blog.

In any case, if you are a creator of any kind who is trying to make a living as a creator… it is important to be aware of the privacy policies and terms of service for the sites that you may be using to promote your work.  That is all…