United States: Image, Ownership, And An App Made In St. Petersburg

There’s been a lot of press lately about FaceApp, the newly popular photo-editing software developed by Russian developers based in St. Petersburg. Interested users can download a free version of the app, take a selfie to use or select an existing photo from their camera roll. The app uses facial recognition and artificial intelligence to modify faces and show users what they may look like in 20 years (or 20 years ago).

FaceApp has sparked many questions about security and privacy, as well as speculation about the possibly nefarious motives of the Russian developers. But how are users’ IP rights affected by using the app? Who owns the rights to the face photos, whether original or modified? What can users do to protect their IP rights?

The short answer is: for the most part, under US law, photographers own the rights to photos they take. If you snap a selfie, you own the rights in the selfie (unless you are the monkey that the US Copyright Office ruled did not have rights in the selfie it took). This is true whether you took the selfie with your own camera or your friend’s. And if you (legally) take pictures of others with your phone, you own the copyrights in those photos.

Photographers can, however, transfer ownership rights in their photos if they enter into valid and enforceable agreements contracting away their ownership rights.

Remember those pesky extra steps you encounter when trying to do things on websites? Those that ask you to read and agree to “Terms of Use” and require the user to click on a button to indicate consent to the terms are called “clickwrap” agreements and are largely enforceable. In a “browsewrap” agreement, a user is allegedly bound by the terms of use merely by using the service; no explicit assent is provided.

While people largely do not read the fine print before clicking or using, they should. If determined to be enforceable, the terms of use dictate the rights of both the user and the app provider.

The FaceApp terms of use explicitly agree that users do not forfeit  ownership  rights in the photos they take or upload. But users may lose control over how their photos and the resulting modified photos are used going forward.

The FaceApp terms of use purport to give 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.”

In short, FaceApp gains the right to do practically anything it wants with your photo or the modified photo that the software creates, including for its own commercial purposes.

Why does FaceApp want such a comprehensive licence to your likeness? Some terms make sense. Afterall, the premise of FaceApp is that it takes a user’s photo and makes a modified version (derivative work) and displays it back to you. Presumably the original and modified versions are stored at multiple locations on their way to the server and back to the user’s device. In that sense, the FaceApp terms of use are no more onerous than those of other websites or services that handle digital content.

But the user should also be aware that the FaceApp terms grant it rights that do not appear to be directly related to service functionality, including:

  • Granting FaceApp a licence to use your content “in all media formats and channels now known or later developed”.
  • Requiring the user agree that “the User Content may be used for commercial purposes”.
  • Reserving FaceApp’s right to change the terms without advance notice, which the user may agree to solely by using the app without knowledge they have been changed.
  • Restricting users to binding arbitration for resolution of disputes, albeit with a clause that requires users to send a letter to St. Petersburg, Russia - via snail mail - to opt out.

So are the FaceApp terms of use enforceable? In general, the question comes down to whether users have reasonable notice of the terms before using the app.

FaceApp has two modes of use: a free, limited version; and an upgraded “Pro” version with full utility. With the free version, users download and can use the app immediately, with no requirement (or option) to view the terms of use or affirmatively indicate assent. Only if a user attempts to upgrade to the Pro version is the user presented with an opportunity to view the terms of use. Even then, user is invited to “please visit” the terms of use and privacy policy “for more information” but is not required to view or indicate assent to them before continuing.

In general, in browse-wrap agreements, failure to display the terms of use to users at all, or merely suggestive, optional, or non-prominent placement of them, could potentially weigh against enforceability should there be a future dispute.

What options do users have if they discover FaceApp used their photos in ways they find objectionable? In addition to the contractual provisions in the terms of use, options are limited by practicality. Suing is expensive and arbitration can be too. If the terms of use are enforceable, they also limit FaceApp’s liability for monetary damages to, at most, the amount you paid to access the service. With the free version, that is nothing. For the Pro version, $3.99/month. These limits place litigation outside the realm for most users.

As with all online services, users should seek and understand the site’s terms before using the service or uploading content. Since there is little practical recourse once you do, if the potential consequences scare you, the best advice is to not download the app. Without knowing what intent FaceApp has, or future uses it has planned, it is admittedly hard to make an informed decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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