Here’s the most clearheaded explanation I’ve ever found of the TOS rights grab that’s become standard for any social media site where you upload your content (images):

In a world where sharing a photo is strictly a matter of getting another copy made and mailing it, or getting it published, copyrights are pretty easy to keep track of and these laws hold up pretty well. Sending a physical photo to your grandmother goes like this: you either put the picture in an envelope and send it, or you get a copy made yourself and send that.

Sending your grandmother an email photo, though, might involve copying your photo five or six times; first to Google’s servers, then to another server, then to an ISP’s CDN, then to AOL’s servers, then to your grandmother’s computer. As far as you’re concerned, this feels exactly like dropping an envelope in the mail. As far as copyright is concerned, it’s a choreographed legal dance.

And so these sites have to get your permission — a license — to copy and distribute the things you post. Just to function as advertised, they need your permission to “use” and to “host,” to “store” and “reproduce.” What they don’t necessarily need is the right to “modify” and “create derivative works,” or to “publicly perform.” That is, unless they need to make money. Which of course they do.

Read the whole post here: http://www.buzzfeed.com/jwherrman/you-dont-own-anything-anymore

It’s a common concern among professional photographers who contemplate participating in social media that these “rights grabs” run counter to how you conduct yourself in the real world and you shouldn’t participate. My concern is if there’s nobody using the service who understands licensing and the value or granting a license there will be nobody to raise a stink if they ever do anything that’s overreaching with their unlimited license. If enough professionals are involved their voices will be heard if that time ever comes.

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29 Comments

  1. This is being discussed among the Instagram community right now. A friend brought their TOS to my attention yesterday and it has the boilerplate, all-inclusive, unlimited license language:

    —-

    Proprietary Rights in Content on Instagram

    Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

    —

    The part that’s concerning to my many professional photographer friends on IG is this excerpt:

    … including without limitation distributing part or all of the Site in any media formats through any media channels…

    Unlike first thought, the TOS did not change when Facebook acquired them, but many do not trust FB with such a loaded gun. I’ve sent an inquiry to IG’s support dept. (Which was an adventure in an of itself. There are many layers of diversion and hoops to actually send an e-mail to them.)

    We hope for some clarity on their TOS now that they are wholly owned by Facebook. Right now the only recourse to avoid handing over all rights just short of copyright transfer is to set your account to “private,” which guts the social network part of it—which is why we are there to begin with.

  2. This is bad advice. Photographers still need to protect their intellectual property and refuse to accept overly broad TOS like many of these “services” have. They can make the TOS fair, but they choose not to.

    We need to be asking why they won’t, rather than acting like ignorant sheep and agreeing just because they say they won’t abuse the privilege of an unlimited license.

    • Word to ya mutha.

    • Leslie, I agree with your comment in spirit. I am especially suspicious of the argument that says we shouldn’t worry about the terms of service because these companies have not used them as a rights grab – yet. In today’s quickly moving world with increasing pressure to be profitable, it’s easily conceivable that a company could change their stance tomorrow if they felt profits would outweigh any public outcry.

      However, the original post makes a good point. Under current copyright law it is not prudent for a company to do anything with IP without a license. What I would really like to see that nobody on your side of the argument has been able to produce is an example of Terms of Service that would meet your definition of fair while still allowing the service to operate with little or no risk. What does the TOS look like that would work for both sides?

  3. I see similar language in the T&Cs associated with photo contests, by supposedly reputable publications such as Outdoor Photographer. Reading these T&Cs at face value (I’m no attorney- just a concerned photographer) it would seem like ‘just another rights grab’ which is so prevalent in the world of photo contests. I’ve contacted OP, inquiring about their T&Cs but wonder whether they are being obliged to state them in this broad manner to cover their legals a***. Probably food for another thread, but I see a bit of a connection.

  4. its real simple, if your concerned, dont put your shit up on them.

  5. It’s interesting that people have been emailing images to grandma for over a decade and these types of ToS and T&C didn’t become a concern until Facebook and the likes got involved. Social media is there to use you and I would be intrigued for some legal scholars to walk through different scenarios just to see how far reaching a “rights grab” could be with ToS such as these

  6. Are there any examples of Facebook or Tumblr, etc using someone’s image commercially to generate revenue through their TOS? Have they sold an image to a third party or licensed it for an album cover? I cannot find a single example. Please post one if you have one…

    I still cannot believe people worry about things like this anymore.

  7. Mike has made a good point here. Does sub-licensing/making money off uploaded work happen? Would this be legal?

    And, on a more general basis: would it be legal to declare you lose your ownership and rights to your work just by uploading it to a website?

    Wouldn’t it be the same thing when the owner of a parking lot placed a sign there: “You park in my lot, your car is mine”? Which, of course, would not be legal, as no “terms of service” agreement can break current laws.

    So, what is stronger: copyright or the TOS of a social media site?

    On a general basis I don’t think any social media site could make a business out of selling uploaded content. Because it’s often not the copyright holder who uploads, but often a model, a member of the crew, a model agency… It’s much too risky for even a rich company like Facebook. And they can’t strongarm us, not even Facebook, or it will go the way of Myspace. Things change fast in the social media world…

    • A transfer of copyright ownership has to be in writing and actually signed by the copyright holder (under US law), so at least things can’t go that far with mere click to accept T&Cs.

  8. It is interesting how the conversation can swing to the extremes of contemplation when it comes to the “Terms of Use/Service” of being able to establish an account on a social media site.

    I think more often the point of of the discussion is to bring awareness to the legalese used to describe the relationship between the owner of the site and the user/content creator. Often the terms seem to be to cover all of the bases for both parties, however the are those who would like to take advantage of the content creators. The web is expansive, if a photographer is not on his game or have people to help to make sure his assets are not being miss-used, can be difficult time consuming task. We don’t need social media sites jumping on the train with the long time IP pirates who pillage the music, movie and software industries. Social media companies needed to be regulated when it comes to what they can do with your work. I think it would be to the benefit of FB and other sites to co-write terms of service the protect the venue providers and users/content creators. Only the willingness to do so will bring resolution without conflict.

    It take participation to effect change and I applaud those like Rob who bring awareness and a sound voice to the issues that affect our ability to work in a difficult but amazing profession.

  9. I have really mixed feelings about this dance. I am a huge fan of Instagram and would argue that it has quickly become a more effective connection with my audience than tumblr, twitter, and facebook combined. While I already resent future misuse of my intellectual property, I refuse to sit on the bench while my peers throw caution to the wind and hustle hustle hustle to amazing success. I think the best approach is to accept that the copyright climate is less than ideal and proceed to outpace the living daylights out of every social media site we participate in. It seems that most of the people who complain about these things simply don’t use them enough to have benefits that outweigh the risks.

  10. Advocating for the Devil, one suspects the competitive market will discipline these services against abuses of their terms of service, better than a lack of legal terms would protect the service from infringement litigation by cranky or crooked photographers seeing a dime from a deep pockets corporation it. All it would take is one “viral” episode of actual abuse of TOS to kibosh that service.

    • I think people made the “competitive market discipline” argument about the financial industry, too. “Competitive market discipline” is a very weak force.

      • I wouldn’t compare investors making serious financial arrangements and deciding about the consequences of unwinding them, with people investing a few hours setting up and uploading to an internet account, and deciding to terminate it.

  11. Some of the comments from the referenced article point out that current copyright and IP laws are out of date and needs to be completely rebuilt to fit the digital age. There comes a point were retrofitting something is no longer a sufficient means to an end.

    • I’m starting to use cx.com for file transfer, and their TOS clearly states that they are asking for the right to copy files in their network solely as needed to provide the service and for no other purpose. Even within the current copyright structure, there’s no excuse for Facebook et al to be as agressive as they are about “licensing”.

      • Exactly. There’s nothing wrong with the licensing or the copyright system itself—it’s with the overly-broad licenses some services grant themselves.

        Plenty of other services out there aggressively limit the scope of their necessary licenses, because they do care and do respect the work of others. You’ll never see that from a creepy company like Facebook, but many others are out there.

    • That is probably the best perspective, Stan. The digital age has turned much of what we have done in the past on its head. Simply stated; ” if it’s on the internet then I can have it, ” has been the stance by the current generation of internet users. I’m not saying that is the correct perspective, but it is something we are fighting everyday. Some people copy from the internet to share with friends and some do it for money or self-promotion. Either way, eventually folks are going to have to understand that it isn’t theirs to take profit.

  12. Minor detour but while I think of it . . . .

    Something that would be neat is an app or automated system that would use Google image search. The artist would direct the app to a folder on their drive and the app would scour the net via Google image search. Then it would return with a list of where those images showed up. Even better would be the app would then automatically send out a DMCA takedown notice to the appropriate party or, even better, send them a bill.

  14. As a photographer I haven taken the stance that I will not post any work on social media sites that have these broad rights grabs. Why take the chance one of these companies can just sell and use your photos as they wish for their own profit?

    • Exactly, Good point.. one thing overlooked is the fact that Facebook, and others in the same arena, thrive off the fact that everyone posts images/video on the sites, FREE of any cost to them; in fact aiding the very on-going survival and increasing growth of the beast itself, to some (at this point) unknown future.
      While it may be socially invigorating for many at times, truth is there may well be a hidden cost..

  15. I strongly disagree with the idea that social media services need a Unlimited License to reproduce a user’s content.

    Here’s the problem. Social media sites are thinking they are the publisher and that they are publishing the user’s content. They aren’t, or at least they shouldn’t be. They are simply the printer, making copies of the content for the user to distribute as the user sees fit. They are simply renting us space to present our content.

    If I take a 500 page manuscript into Kinkos and ask them to make a copy of it, they do not need or ask for a “Unlimited License” as part of the transaction. It’s very clear that it is my content and I am the one in charge of how it’s distributed. They know that they are not allowed to make a copy for themselves to read later, or make copies of it to give to anyone else without my direction.

    If a social media site approached their terms of service as if they were the publisher, it is very easy to see how such “Unlimited License” clauses came into being, besides the fact that lawyers will make overreaching contracts as easy as taking a breath. What we the users need to do is get social media sites to change their thinking and make them into the “printer” not the publisher. You and I and every user are the publisher and we are the ones who should be deciding all uses of our copyrighted work. The Social Media sites should focus on giving us options that we have that control over or else risk being kicked to the curb.

  17. Is anyone making big money licensing their photos to blogs and other social media sites? Having a blog and participating 100% in social media is not the future, its now.

    Say a photographer puts their photo on their portfolio site and its a flash based site and some kid sees it and loves it. They screen capture the image and put it up on Pinterest then it goes viral. Whats wrong with that? As a photographer are you going to spend all you time trying to take down the image and sue Pinterest, the OP and other social media sites?

    Trying to sell a license for social media use or “protect your rights” online is pointless. We live in a free economy and there are other ways to use your photographic skill to make money in social media that don’t involve chasing your photographs looking for someone infringing on your rights.

    If you don’t want people to take your photography don’t put it online. Just make prints and show them in private and maybe one day years after you’re dead and buried someone will discover you and put your work online anyways and you’ll be famous..dead and famous.

    There is a disconnect with photographers and reality of business in 2012. Does anyone think that if Rob never started APE and kept his knowledge private he would be as successful as he is now? Probably not.

    People are giving away valuable knowledge for free and are profiting from it. This is business in the new economy a business of people looking at photos shot with your massive high res camera on their greasy iphone screen while in line to get a burger and posting it on Instagram.

    Rather then fight it go with it. If you think that the young Skrillex loving creatives are looking at your postcards and emails and giving a shit let me clue you in, they are looking at work on Instagram, Pinterest, Twitter, Flicker, 500PX, Behance.

    If and when you see your work on a billboard in a Toyota campaign then go after them but to worry about social media use right now is a waste of your energy.

    Fear of social media reminds me of that fear I witnessed at some of my first ASMP meetings when I started shooting professionally in 2005. What should have been an educational experience was a bitch-fest by scared photographers not willing to embrace the digital world, scared about Photoshop and people trying to steal their lighting setup or other nonsense. Wonder what happened to them?

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