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.
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.
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.
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.