Using Logos on Facebook

Tags: trade-marks, copyright, facebook,

| Apr 18, 2008

There has been a lot of concern in the social media world about Facebook’s terms of use and what they mean for user generated content. While it is true that Facebook takes quite a few rights from content that its users post to the site, there are limits. I had an interesting question today from social media consultant Robin Browne of Conscious Images.

A client of Robin’s had heard that Facebook’s “we own everything you put on here” policy includes company logos posted by the company itself. He was advising this company about using Facebook as a marketing platform and they were concerned that they would lose ownership or control over their own logo if they posted it to the site.

I think that interpretation of Facebook’s policy is pretty common. That’s not really what their Terms of Use policy says. It can feel that way, I know, but it actually explicitly says:

Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

What actually happens when you post a company logo to Facebook is that you assert that you own that logo or have permission to post it to Facebook, and you grant to Facebook an almost unlimited licence to use that logo. Same is true for any other content as well. The critical (and ridiculously legalese run-on) sentence in their Terms of Use is:

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

So by posting a logo or other content you basically let them use it for any purpose. But there are limits.

First, note that you can revoke most of that licence by removing the content from their site, in which case they only keep permission to keep archived copies of that content and not to do anything with it — just to “retain” it.

Also, I find it interesting that this section (“User Content Posted on the Site”) of the Terms of Use does not specifically say that it’s concerned with copyright. It looks like it is about copyright, but it doesn’t say so. A major concern that a company would have with respect to their logo is the issue of protecting their trade-mark — the association between their logo and their product or service. I don’t think the licence granted by a Facebook user would allow Facebook to use a logo in association with a different product or service (or more problematically to sublicense another party — imagine Coke posting their logo on a Facebook page and then Facebook licensing another company to use that logo in association with another product). That would be a much bigger problem for most companies than the potential copyright infringement, but it does not appear to be covered by the licence granted under the Terms of Use, so is not an issue.

Now it turned out that Robin’s client is probably much more concerned about these potential trade-mark infringements than the copyright issues. They’re a smaller company and they were apparently concerned that a massive multinational competitor would get the licence to use the logo from Facebook.

This is a very legitimate concern for the company, since the Facebook Terms of Use gives Facebook “transferable” rights and “the right to sublicence”. There is the potential that FB could sell the right to use the company’s logo to some huge multinational.

But that’s why I raised the issue of trade-marks. If I’m right that Facebook users only give Facebook a copyright licence to use their user submitted content and not a trade-mark licence, then Facebook (and the hypothetical multinational sublicensee) could use the logo but not in association with goods or services that are similar to the smaller company’s goods and services. There’s lots of subtlety in trade-mark law as to what is meant by the word “use”, but it’s essentially aimed at getting at the concern raised by the company — making sure a competitor doesn’t use their logo in association with a competing product.

I suggested that the company should probably think of using their logo on Facebook as pretty much giving up the rights they have under copyright (until/unless they later remove it from the Facebook site) but keeping their trade-mark rights. They should balance that loss against the potential gains of using Facebook to access their target market — potentially an enormous benefit.