All Your Pics Are Belong to Us: at image hosting services, Terms and Conditions always apply

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Smartphone apps make it trivial to snap a photo, upload it to a host, and post a link to Twitter, sometimes in a single step. But by storing a photo on a hosting service to display via Twitter and beyond, you're assigning some subset of your copyright to that sharing site. Since the 1970s, copyright is inherent in the act of creation, no matter whether it's a snapshot or your life's work. There's a conflict when you present some license for your work to parties which you have only a slender thread of a relationship.

This came to a head last week and this due to changes made at the popular TwitPic service. On May 4th, TwitPic updated its terms of use. Before May 4th, the statement about copyright read:

All images uploaded are copyright © their respective owners.

This was modified to include a lengthy section on copyright that raised hackles because it seemed to give TwitPic an enormous grant of rights, even while assuring users that they owned their work. The motivation was likely to clarify policies after Agence France-Presse (AFP) used Haitian photographer Daniel Morel's images of the aftermath of the earthquake without permission. Morel uploaded images to TwitPic, which were then duplicated by another person, and AFP distributed them. A lawsuit is long underway. TwitPic's copyright information shown at that time was more ambiguous about who owned what.

Nonetheless, the new copyright terms raise more questions than they bury. One point of contention was a sloppy paragraph that said once you'd uploaded a picture to TwitPic you couldn't license it to the media, agencies, or other parties and have those groups retrieve it (with your permission) from TwitPic. On May 10th, the terms were revised again and that graf removed.

But other troubling rights assignments remain. While TwitPic still says, "You retain all ownership rights to Content uploaded to TwitPic," it also receives a free worldwide non-exclusive license to reproduce your works. Ostensibly, that's to cover its ass in duplicating your images to its servers, pushing them to smartphone apps, and covering other future uses. But it's awfully broad. With those rights, TwitPic could publish books, license your photos, and otherwise reap financial rewards without additional permission or any compensation. (The full copyright terms excerpt is below.)

And a deal announced with World Entertainment News Network (WENN) shows at least one worst-case scenario. WENN, which has a deal with Plixi as well, will act as a licensing agency for TwitPic. WENN's CEO told Amateur Photography in January in relation to the Plixi deal that he "did not rule out selling on other types of Twitter images to the wider media, such as pictures of a breaking news story, if it were brought to its attention, whether featuring a celebrity or not."

Ostensibly, the celebrities will be participants in such licensing and cut in on deals for their photos. But there's no discussion of that in either article, and it may explain the rise of WhoSay, an invitation-only photo-hosting site designed specifically for the famous (and their publicists) to manage and distribute photos for social media and handle associated rights.

Now, I am not a lawyer, although I've been reading copyright agreements for decades and have amassed non-systematic knowledge of the subject. I called Carolyn E. Wright, who goes by the moniker Photo Attorney. Wright, an accomplished nature photographer, publishes regular free advice for shooters on her site, and works closely on rights licenses with her clients. She's highly concerned about TwitPic's terms and similar terms from other organizations.

"I've been trying to warn my blog readers for a long time, you need to read the terms of service, you have to be sure they're not getting too broad a license," she says. She doesn't impute that TwitPic has ulterior motives. "Sometimes I think that this is just poor writing on the terms of service. Or, it's an aggressive lawyer, and it's just the safest thing to do." But the way the current revised terms are written, she says to photographers, "don't use that service."

Wright cites Mobypicture as an example of a copyright statement that she feels protects photographers' rights. That site's terms note, "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."

Wright says that while professionals may have the most to lose, casual photographers could be equally exploited.

TwitPic didn't respond to a request for comment for this article.

The question at stake here isn't whether we trust TwitPic or other services or not to explain their intent. The intent is in the contract we agree to when we upload our images. If push comes to shove, that's where those firms' lawyers point, and that's where we lose. I've always said in negotiating contracts, "I trust you, or I wouldn't sign a contract with you. But I'm also signing a contract with the person who replaces you in your job, or the company that buys you. It's them I'm worried about."

I've taken a set of scissors to collect the copyright section of the terms of service for many popular services below to compare. Many have quite similar language to TwitPic; others foreswear all rights.

TwitPic

All content uploaded to TwitPic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from TwitPic. It is not acceptable to copy or save another user's content from TwitPic and upload to other sites for redistribution and dissemination.

By uploading content to TwitPic you give TwitPic permission to use or distribute your content on TwitPic.com or affiliated sites.

To publish another TwitPic user's content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user's content page on TwitPic, whether online, in print publication, television, or any other format, you are required to obtain permission from TwitPic in advance of said usage and attribute credit to TwitPic as the source where you have obtained the content.

You retain all ownership rights to Content uploaded to TwitPic. However, by submitting Content to TwitPic, you hereby grant TwitPic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and TwitPic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by TwitPic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

You understand and agree, however, that TwitPic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

Flickr

Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

...With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

img.ly

The images shared on img.ly are belongings of their respective owners.

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.

Mlkshk

We do not claim ownership of the materials you post on, upload to or otherwise place on the Site. However, by posting, uploading or placing such material, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use material. This license ends when you delete the material or your account unless the material has been shared with others, and they have not deleted it.

Mobypicture

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.

Posterous

You shall retain all of your ownership rights in your submissions; however, by submitting material to Posterous you grant Posterous fully transferable rights to use, reproduce, distribute, modify, transmit, prepare derivative works of, display and produce the material in connection with Posterous and Posterous's business, but solely in accordance with these Terms of Use and our Privacy Policy.

Yfrog (ImageShack)

By displaying or publishing ("posting") any Content on or through the ImageShack Services, you hereby grant to ImageShack and other users 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 marked "private" will not be distributed outside the ImageShack Services. ImageShack and/or other Users may copy, print or display publicly available Content outside of the ImageShack Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the ImageShack Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the ImageShack Website you change the Content's privacy setting to "private," we will cease any further distribution of such "private" Content outside the ImageShack Website as soon as practicable.