There is a marked disconnect between creative agencies and lawyers which could spell doom for agencies’ clients. To put it plainly, creative agencies develop and implement innovative campaigns without taking into account the legal considerations and, in the process, place their clients at unnecessary risk.
One of the reasons the license was too broad was that Facebook sought to exercise an “irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license” over not just content uploaded to its service directly but also to any content Facebook users linked to from within Facebook or using a “Share” button or link on external websites to share content from those websites in Facebook. This formulation presented a number of difficulties ranging from Facebook’s efforts to take a license over content the person sharing the content had no right to give (typical in the case of third party content shared on Facebook) to a total disregard for the license (or lack thereof) applied to the content in the first place before it entered Facebook’s ecosystem. The irrevocable and perpetual nature of the license only aggravated the matter.
What does this mean for businesses? Well, for starters creative agencies that develop marketing social media marketing campaigns frequently point out Facebook’s tremendous potential as a platform for part or the whole of the campaign. They are not wrong. Facebook can provide access to a receptive and engaged audience for a business’ brand but how a business makes use of Facebook should be carefully planned. Often a Facebook campaign involves making content or services available through an advertisement on the site or a Facebook Page which fans would join and (hopefully) use to engage more directly with the brand and the business behind it. It is a very appealing opportunity on paper but what agencies rarely include in their planning is provision for the licensing implications for their clients’ content posted to the site.
Not only does Facebook take a particularly broad license over a business’ content posted to the site (the license permits commercial use of the content in addition to what I have quoted above) but provisions dealing with shared content potentially bring a business’ content within the license’s scope where the a user shares content on an external website with other users on Facebook. An example of this is where a “fan” links to the company’s website from its Facebook Page, finds an interesting blog post or video and, using a “Share” link or bookmarklet (usually through a web browser), shares that content with other Facebook users. At first blush this is precisely what a Facebook campaign may be intended to achieve. On a closer look it becomes apparent that by sharing that content with other Facebook users, that shared content becomes subject to Facebook’s license, irrespective of the company’s wishes. If the company publishes a “Share” link on its own website with the intention that users share its content on Facebook then it is similarly bound to license its content to Facebook under the same license.