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.

It is common today for artists to pay attention to their rights online -- especially in regards to a websites terms of service agreement. Are terms of service a legally binding contract when it comes to how user uploaded content is used by the website owners? It really depends on who you ask. Based on what I've been told from various art law legal eagles I would suggest that TOS are not legally binding if the company attempts to profit by using user uploaded images on physical merchandise. From what I've been told a contract must have two essential components in order to be enforced in that situation-- it must involve an agreement and consideration. It must also adhere to an assortment of provisions. A digital contract in the form of accepting a TOS agreement simply fails to suffice in this scenario.

Many websites state in their terms of service that they have permanent rights to distribute user generated content on the website and for promotion of the website. As mentioned in Part 1 of this series that is to protect the website from unnecessary lawsuits from website users. However, if a website, such as Facebook or Google+, decided to place user content on merchandise that is sold without permission from the copyright owner the website would be placing itself in great risk. There are various rules that must apply when profit of that nature is involved-- especially if the copyright is registered.

The lawyers I've spoken to over the years have all stated that in order for a contract agreement to be legally binding it must involve some form of consideration prior to the contract being accepted. In general that means that there must be an exchange of something of value between both parties involved with the agreement. A free account on a social networking site has no value. In that sense, if anything it is a gift to the website user as long as he or she does not interfere with how the website functions. Even if the site charges a fee that does not mean the site can legally use images on physical merchandise for profit-- after all, the value the user is offering is the monetary value of the service fee and the agreement to pay it in order for services to continue. That value has nothing to do with the uploaded content.

Another issue concerning the legality of a contract is that in most states a contract must be in writing if the agreement lasts more than one year. Most artists I know of have been on Facebook longer than one year. Thus, the 'contract' they have with Facebook in the form of a TOS agreement would likely not be upheld if Facebook decided to try and profit directly from user generated content on physical merchandise without compensating copyright owners. Facebook would have to obtain a contract in writing from the copyright owner in order to pursue that initiative. Thus, if it were to happen time would be on the side of many artists.

If a website like Facebook were to start ripping artists off for profit they would not have much to work with. After all, the size of most images-- and quality of images-- on Facebook and similar social networking websites would be useless if used on physical merchandise. The end product would be shoddy at best. The merchandise would definitely not be something that could be marketed in my opinion.

As mentioned in Part 2 of this series I don't think a website like Facebook would risk the public and media backlash from taking advantage of artists in this manner. Even if a social networking site had legal grounds to utilize user generated images on physical merchandise I assume they would be facing so many copyright infringement lawsuits that the loss of court expenses would eat up any profit made from selling the merchandise. It would be bad for business-- and bad for their corporate image. Point blank -- I think artists should be more wary of individual copyright infringers -- such as other artists. After all, those individuals could use the images 'under the radar' for profit, so to speak, compared to a website like Facebook.

In closing, I can understand why so many artists are concerned about what the terms of service of a popular website means to their artwork when images are uploaded. That said, I think in most cases the fears are not exactly valid in the sense that the company would be hard-pressed to prove that they have the legal right to use images on merchandise without compensating the copyright owner. If a scenario like that were to happen the website involved would likely receive hard-line criticism from the media and notice a sharp drop in membership. It would not be worth it. If in doubt-- be careful about what you upload. Furthermore, make sure to register the copyright of images that you feel are the most marketable.

Take care, Stay true,

Brian Sherwin