Simon Williams, from our Commercial Disputes team, takes a look at the copyright licences issues raised by the recent FaceApp controversy.
You may have noticed a small storm in the news about an app called FaceApp; perhaps you’ve even used it yourself. FaceApp enables you to add filters to your photos to show what you might look like in old age. The app has been around since 2017 but recently went viral as people started sharing aged photos of themselves on various social media platforms. This included many celebrities such as Drake, Gordon Ramsey, David Guetta, and the Jonas Brothers, who have all shared photos of their future faces on their Instagram pages.
“User Content – You grant FaceApp a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you.”
The Copyright position
Understandably, the extremely wide scope of the licence has caused a bit of a stir, but what is the legal position regarding copyright of your images in the UK? Put simply:
Whilst you retain the ownership of the images you upload, FaceApp have a licence to use the images how and when they choose, including for commercial purposes such as advertising. This is particularly interesting when you consider the number of high-profile celebrities who use the app, and the value of their images.
Is this commonplace and should you be concerned?
There was a public outcry when users of the app realised their images could be used by FaceApp permanently. However, all-encompassing licences like FaceApp’s have been commonplace on social media platforms for some time.
For example, Section 3 of Facebook’s Terms of Service states:
“when you share, post or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content”.
Whilst Facebook’s licence isn’t “perpetual” and “irrevocable” like FaceApp’s, the licence grants Facebook similarly wide rights to use your content and images.
Meanwhile, Twitter’s Terms of Service state:
“…you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) …”.
As you can see, the Terms of Service of these social media platforms have been drafted to give them the widest range of rights possible over the content that’s published on their platforms.
So yes, of course it is concerning for FaceApp users that they have granted such wide rights over their images. But unfortunately, users of Facebook, Twitter, and most other social media and technology platforms will have unknowingly granted similar licences over their images.
Are these licences enforceable?
A user must agree to the terms and conditions (Ts&Cs) offered with an online service in order to create a legally enforceable agreement. Many online service providers, like FaceApp, seek your agreement by requiring you to click an “I Agree” button after being shown the app’s Ts&Cs. These are referred to as “clickwrap” agreements.
As we know, most people don’t have the time to read Ts&Cs in full when using online services (researchers in 2012 found that it would take 76 days to read all the policies that the average person agrees to online in a year).
Unfortunately, many of these “clickwrap” style agreements have been held to be enforceable, particularly in the US, because the customer has provided their consent to it. This can be the case even where a user hasn’t read the terms, provided that he has been given the chance to read them.
In the UK, we have legislation in place to protect consumers by requiring that “unfair” terms must be brought to the consumer’s attention. However, online service providers which operate here often try to get away with including these terms anyway, including broad copyright licences. Very few private individuals have the financial means to take the likes of Facebook to Court. If you, as the owner of the copyright, submit a copyright infringement notice to Facebook and they decline to remove the infringing image, you would then have to seek intervention from the Court to force them to take it down.
Reading the Ts & Cs
Of course, we would always advise that you read the Ts&Cs before signing up to any online service. However, companies know that very few users read their policies and so they often ask for as many rights as possible. You might therefore be uncomfortable with what you read.
If you want to avoid granting any rights over your images, you might need to rethink your online activity. In general, do not provide any of your personal information when using an app until you understand how it will be used.