This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint and Art Fag City. You should submit an article and share your views as a guest author by clicking here.
From a legal standpoint the terms of service (TOS) agreement of a website pertaining to user content can become a quagmire of support for and against just how binding the 'contract' is. Courts have upheld the legality of TOS when content is used to bypass the security or functionality of a website. However, when it comes to ownership of user uploaded content courts generally side with the owner of the content -- that being the individual who owns the copyright (which may or may not be the user who uploaded the content in the first place). With that in mind, I'd say that artists may not have to be wary of TOS agreements in general.
In addition to the above -- a website like Facebook or Google+ would not want to face the public ridicule that would likely occur if the company exploited artists by using their images on merchandise without permission and compensation. If something like that were to happen the story would be picked up by the blogosphere in a heartbeat-- and the media would be quick to report on it as well. There would be protests, boycotts, and so on. It would simply be bad for any social networking giants image.
Based on the information I've obtained from copyright experts over the years I'd suggest that if a website like Facebook or Google+ were to try and profit directly from images uploaded by an artist without the artists consent the owners of the website would be hammered in court-- especially if the artist had registered copyright of the images with the United States copyright office. I doubt Facebook or any other popular social network would take that risk no matter what the terms of service states concerning ownership and use. After all, if the images are registered the website could stand to lose millions if the website owners attempted to sell physical products involving the images.
Point blank -- a website like Facebook or Google+ would not want the public and professional backlash that would occur if they started to sell prints or other physical items involving user uploaded images or other content without the permission of the copyright owner. It would be a reckless choice -- website users, specifically visual artists and musicians, would leave the website in mass. If that were to occur I'm sure that corporations, specifically those involved with the music and film industries, would be quick to slap the website with cease-and-desist letters. A website like Facebook does not want to lose millions of members or receive heat from other corporate entities merely to earn profit off of user content in that manner.
To wrap up Part 2 I'd suggest that the ball is really in the court of artists in this scenario. Social networking giants like Facebook have too much to lose if they started to use user content on physical merchandise without permission or compensation. One could say that a barrier of responsibility exists which prevents websites like Facebook from exploiting visual artists in this manner. Website owners simply don't want that kind of negative media exposure. In that sense, I don't think that artists have much to worry about in regards to TOS agreements. That is just my opinion -- if you have a different take on the issue feel free to comment on this article. Check out Part 1 for more thoughts on this topic.
Take care, Stay true,