This question is not about Facebook usurping anyone's copyright. Rather it is about the photographer's right to post the image on Facebook (or elsewhere)
If I take a photo of 3 friends playing casual soccer outside the Rose Bowl, and wearing Nike and drinking Coca Cola. Does uploading that photo violate the rights of the 3 friends or Nike, Coke, or the Rose Bowl? And if it does, does that mean 90% of the images on Facebook violate someone's rights?
Photographers do own the copyrights in the photos they take, but their subjects' rights are limited. People in public have no privacy rights, so they can be photographed, and they can still consent to be photographed, but they still have "publicity rights" as noted by my colleague.
Since a Facebook posting isn't "commercial," like advertisements are, CA Civil Code section 3344 wouldn't apply. For the same reason, the trademark rights of Nike and Coca-Cola wouldn't apply because the FB poster isn't using their TMs "in commerce" to compete with them and confuse their customers.
Lots of the photos posted on FB are indeed infringing, but may aren't.
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There are quite a few different questions here. First, as the photographer, you have the copyright in the work that you made -- your photograph. Your friends have a separate interest -- their right of publicity under Cal. Civ. Code sec. 3344. This allows them to control the use of their likeness for purposes of promotions. They could prevent you from using their images in advertising for Nike or Coca-Cola, for example. However, a picture of them throwing a frisbee near the Rose Bowl posted on Facebook, with bottles of Coca-Cola in the picture with shoes bearing the Nike swoosh, is not likely going to be construed as endorsing the drink or the athletic shoes.
Nike and Coca-Cola might have claims of false designation of origin if they were featured with conduct that could be falsely construed as being sponsored by the companies, but that would probably not be too common. Overall, they are happy to be associated with healthy activities, even if no one could construe it as being endorsed by them. I don't see too much to worry about.
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A candid snapshot taken of friends wearing or consuming branded products posted to a social site like Facebook should not cause any problems.
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Intellectual Property Law Attorney
That should not be a problem. Unless you are selling something using photos to imply sponsorship by the Rose Bowl, Nike or Coke, they are not going to object. They want their brands seen as popular, provided it is on their products and not seen as endorsing anything else.
As to copyright infringement on Facebook, it is rampant but mostly non-commercial in nature. Trademark infringement is less common due to the mostly social rather than commercial nature of most of what is on Facebook. However, there are many commercial sites on Facebook that have names infringing some registered trademark or unregistered trademark. Many, if not most, trademark conflicts include a conflict on Facebook. I have a number of them pending in litigation right now. That will only increase as Facebook becomes more and more commercial.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
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