There has been much debate over whether photos posted to Facebook fall under public domain and can be used by others without permission. The legal specifics get quite complex, but in general most experts agree that photos posted to Facebook are not necessarily in the public domain. However, there are some nuances and exceptions worth examining.
What is public domain?
In copyright law, public domain refers to creative works that are not protected by intellectual property rights. Works in the public domain can be used and reproduced freely without needing permission from the creator.
Works fall into the public domain if:
- The copyright has expired
- The creator failed to renew the copyright
- The creator deliberately waived their rights
- They were created by the federal government
However, simply posting something online does not automatically put it in the public domain. The original copyrights still apply in most cases.
Do Facebook’s Terms of Service make photos public domain?
Some argue that Facebook’s Terms of Service implicitly make user photos public domain by granting the platform broad licenses to distribute and reproduce the content.
Facebook’s Terms of Service state:
You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.
However, legal experts agree this does not equate to placing photos in the public domain. Facebook is granted a license to use the photos in order to operate its platform, but the original creator still retains the copyright.
Copyright law and social media photos
In the U.S., photographs are protected by copyright law from the moment they are captured. The creator holds exclusive rights to reproduce, distribute, and display their photos.
Simply uploading a photo to Facebook does not surrender those rights. The creator still controls the copyrights and permissions.
Under the terms of service, users grant Facebook licenses to display and distribute the photos on its platforms. But this license is limited in scope, as it only covers Facebook’s operations.
What rights do you maintain as the copyright holder?
As the photo copyright holder, you maintain the exclusive rights to:
- Reproduce the photo – Make copies
- Distribute the photo – Share, provide access
- Display the photo publicly – Online, in publications
- Make derivative works – Edit, remix, crop, etc.
Uploading to Facebook does not surrender these rights. You still control permissions and usage outside of Facebook’s platform.
When can others use your Facebook photos?
In most cases, express permission is still required for third parties to use photos posted on Facebook. Situations where photos may be used without permission include:
- Fair use – Using a small low resolution portion for commentary, criticism, etc.
- Creative commons license – If you opted to apply a CC license
- Subpoena – Law enforcement agencies can access photos with a valid subpoena
Outside of those exceptions, it is advisable to obtain permission before reproducing or distributing photos from someone’s Facebook account.
Common questions
Can I use Facebook photos on my blog or website?
In most cases, no. The original creator still holds the copyrights and you would need their explicit permission. Exception would be if the photos are covered by a Creative Commons license permitting reuse.
What if I credit or tag the photographer? Does that make it okay?
No. You still need actual permission from the copyright holder, unless the photo is already under a free license like Creative Commons. Giving credit does not supersede copyright law.
Can I use Facebook photos in a book or publication?
Again, you would need direct permission from the creator, unless the work is in the public domain or under a Creative Commons license. Just crediting the source does not remove the need for permission.
What about celebrities or public figures? Can I use their Facebook photos?
Copyright law does not make exceptions for public figures. You still need permission to use photos posted by celebrities, politicians, athletes, or other public personalities.
Best practices for using Facebook photos
To avoid copyright disputes when using Facebook photos, follow these best practices:
- Always get direct written permission from the creator before reusing their photos
- Respect Creative Commons licenses if applied to a photo
- Only use small portions of photos for commentary and criticism under fair use
- Link back and credit the source when possible
- Avoid downloading and reuploading photos to other sites
- Contact Facebook if you have permission but are still asked to remove a photo
With permission, it is perfectly fine to reuse photos from Facebook. But absent authorization from the creator, tread very carefully to avoid infringing copyright.
When can Facebook photos be used commercially?
Facebook’s Terms of Service prohibit other companies from using user photos for commercial purposes without explicit permission:
You will not access or collect data from our Products using automated means (without our prior permission) or attempt to access data you do not have permission to access.
Some specific examples of prohibited commercial use include:
- Selling Facebook photos on stock photo sites
- Using Facebook photos in paid ads or sponsored social media posts
- Printing Facebook photos on merchandise like t-shirts, mugs, or posters for sale
- Including Facebook photos in commercial publications like books, magazines, or blogs
Explicit permission is required for any commercial use like those above. Commercial use without permission violates both copyright law and Facebook’s terms.
When is commercial use permitted?
You may commercially use Facebook photos if:
- You obtain direct written permission from the creator
- The photo is under a Creative Commons license permitting commercial use
- You are using a small portion under fair use for commentary, criticism, etc.
Always check the license and get permission from the rights holder whenever using Facebook photos commercially.
Potential penalties
There can be serious repercussions for using Facebook photos without proper permission:
- Copyright infringement lawsuits and legal claims for damages
- Removal of your content containing the unauthorized photos
- Suspension or banning of your Facebook account
- DMCA takedown notices requiring removal of infringing content
Copyright holders can potentially seek statutory damages up to $150,000 for each willful infringement. This makes it critical to respect copyright law and obtain permissions.
Summary
In summary, photos posted to Facebook remain under copyright protection and should not be reused without permission. While Facebook is granted certain licenses, the original creator retains full rights. Always check the license, give proper attribution, and secure written consent before repurposing Facebook photos. With explicit permission and following best practices, you can legally reuse photos. Absent authorization, use extreme caution to avoid copyright disputes or penalties.
Examples of Permitted vs. Prohibited Uses
Permitted Uses
| Use | Permission Needed? |
|---|---|
| Sharing a photo on your own Facebook page | No |
| Tagging friends in a photo they are also in | No |
| Using a small portion under fair use for commentary | No |
| Applying a Creative Commons license | No |
Prohibited Uses
| Use | Permission Needed? |
|---|---|
| Reselling photos on stock sites | Yes |
| Putting photos on t-shirts, mugs, posters for sale | Yes |
| Including in ads or sponsored social media posts | Yes |
| Large-scale distribution outside of Facebook | Yes |
Conclusion
While social media photos may seem easily accessible, standard copyright protections still apply. Always check the license, give proper credit, and get permission from the creator before reusing photos from Facebook or any other social platform. With explicit consent, you can leverage social content. But without authorization, stick to fair use exceptions to avoid disputes. Respecting ownership and permissions will keep your usage aboveboard.