July 01, 2011 — Life in the 21st Century is all about fast communications—the faster and broader, the better. First, there was email, but that seemed to take too long for some—especially for younger folks—you had to fill in a subject line, write comprehensible English, etc. So texting, with its own peculiar language, abbreviations and acronyms, evolved. But that meant limiting your sphere of distribution to those in your cell phone.
Around the same time, Facebook and its ilk started to become popular. You could put up a message in whatever format you wanted, including the tortured language of texting, and it could be available to the public or any subgroup you might want.
A kind of hybrid that also developed is Twitter, which allows you to post short (140 character) messages that can be pushed to anyone and everyone who has chosen to “follow” you through the service. Since these short messages can have links to Web pages inserted in them, Twitter has become one of the ways that many photographers communicate with each other and with current and prospective clients. Just link to a page with some uploaded photographs, and voilà, a vast universe can suddenly be directed to your photos. The business and promotional possibilities for photographers are seemingly incredible.
To maximize the usefulness of “tweets” (the rather foolish-sounding name of messages sent through Twitter), photographers had to have their images online. Many opted to post their images on third party Web sites, including one that was affiliated with Twitter, called Twitpic. Wow, life couldn’t get much better. Or could it…?
It seems that there is a snake in every Garden of Eden, and in the case of the paradise called the Internet, one of the places where serpents lurk is the page usually called something like “Terms of Service.” Just about every Web site imposes some set of contractual conditions and restrictions on everyone who uses or accesses the Web site. Depending on the particular Web site, just like snakes, some of those are benign or even helpful, and some are potentially deadly.
Take, for example, two Web sites that host photographs: Twitpic.com and Mobypicture.com. At the time I am writing this, Twitpic has very recently revised its Terms of Service. The language as revised said that the photographers owned the copyrights to their images. Great, right? Well, not so fast—the story doesn’t end there. The terms also went on to say, in pages of complex legal speak, that Twitpic could use or distribute your photographs on Twitpic.com, “or affiliated sites.” Hmmmm… what is an “affiliated site,” a term that is not defined in the Terms of Service? Could it be any entity, commercial or otherwise, that Twitpic might decide to designate as an affiliate? Maybe.
Worse, after assuring you that you retained your ownership rights to your photographs, the language went on to say that you gave Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use the photographs in connection with Twitpic and its affiliates (there’s that word again) “business.” So, if Twitpic decides to make licensing your photographs without paying you part of their “business,” it sure looks as if they could do it, and you would be out of luck.
After some massive outcries by photographers regarding the new Twitpic language, they created a blog entry reassuring photographers that the photographers continued to own their own copyrights. Unfortunately the blog entry didn’t say a single word about the usage rights that photographers granted to Twitpic (or its affiliates or assignees or sublicensees). Perhaps they were hoping that people wouldn’t notice.
In a way, even more insulting to photographers is the indemnification provision. When it is combined with the grant of rights described above, not only do you give potentially valuable rights to Twitpic for free, just by putting your photos on their Web site, but you also promise to pay for any costs or liabilities stemming from Twitpic’s use of your photos. In case you don’t know the word “chutzpah,” this is a pretty good example.
Content ownership: By way of contrast, let’s look at a competing Web site called Mobypicture.com. Mobypicture’s Terms of Service are short, sweet and easy-to-read and understand. More importantly, they end with the following:
“All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user.” Now, that’s the kind of bottom line that I can happily live with.
As I said in a previous column, all of this leads to homework. If you want to post your work on a third-party Web site, make damned sure that you click on the terms of service button and read every boring, confusing word. Otherwise, what you don’t know will probably hurt you.
Victor S. Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. Mr. Perlman has frequently appeared as an author in various publications, including Communication Arts and Popular Photography and is co-author of Licensing Photography, published by Allworth Press. He has testified in Congressional hearings and proceedings held by the U.S. Copyright Office and the U.S. Patent and Trademark Office.