It’s the Bizness: Copyright, Licenses & Social Media Service Providers.

Yesterday it came to my attention that TwitPic has changed its Terms of Service. The change in terms was met by a small outcry in the media but much of Twitter was silent.

So wherein lies the controversy? This right here.

So what does this mean for the user? Well in the words of Two Point Oh! LA member and attorney, Cirrus Alpert. “If you use it. You lose it.”

Effectively by agreeing to TwitPic’s terms you are signing away the license to your pictures. Now if you’re just using TwitPic to share pictures of your latest dinner or your cat doing a Paula Abdul impression then maybe you don’t really care. But if you’re caught in the middle of a natural disaster or other newsworthy moment and snap the million dollar picture, you’re effectively screwed out of both credit and money. Not to mention if you’re a professional photographer snapping gems or perhaps in the company of, or are a celebrity yourself (Ellen is now boycotting TwitPic) you can allow TwitPic to profit off your work or even your face.

At this point I shall hand over to Cirrus Alpert who will explain far more throughly copyright law and how it applies to TwitPic’s new Terms of Service than I, a mere lay person, ever could:

Article I, Section 8, Clause 8 of the United States Constitution empowers the United States Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is the basis for the federal copyright laws granting authors certain rights in their “original works of authorship.” The owner of the copyright (which is very different than the owner and/or possessor of the work) has the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies;

• To prepare derivative works based upon the work;

• To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; and

• To perform, display, and/or transmit the work publicly.

It helps to think of the above list of rights as a bundle of sticks tied together, where each right is a stick in the copyright bundle that can be either sold or licensed, exclusively or non-exclusively, in whole or in part. In addition to the above rights, authors of certain works of visual art also have “moral rights” of attribution and integrity.

It is illegal to violate a copyright, but there are limitations. One limitation is the doctrine of “fair use” of copyrighted works. Another limitation is the “compulsory license” where certain limited uses of copyrighted works are permitted after payment of royalties and compliance with certain legal conditions.

The copyright owner’s rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or the owner’s representative. In contrast, the transfer of nonexclusive rights do not require a written agreement.

Copyright is a personal property right. Therefore, various state laws and regulations that govern ownership, inheritance, and transfer of personal property as well as contracts or conduct of business apply in addition to the federal copyright laws. Copyright protection in a particular country is addressed by the laws of that country or by its treaties with other countries regarding copyright.

So what’s the deal with TwitPic?

TwitPic is a service that hosts photos. Recently, TwitPic updated its Terms of Use after entering into a formal agreement with World Entertainment News Network to sell images uploaded by users. Under TwitPic’s Terms of Use, the image’s author retains the copyright to the uploaded image, however TwitPic can sell the photo uploaded by a user without paying a royalty or requesting permission. Twitpic has this to say about its new terms in response to anger over its revised Terms of Use:

“Our terms state by uploading content to Twitpic you allow us to distribute that content on twitpic.com and our affiliated partners. This is standard among most user-generated content sites (including Twitter). If you delete a photo or video from Twitpic, that content is no longer viewable. As we’ve grown, Twitpic has been a tool for the spread of breaking news and events. Since then we’ve seen this content being taken without permission and misused. We’ve partnered with organizations to help us combat this and to distribute newsworthy content in the appropriate manner. This has been done to protect your content from organizations who have in the past taken content without permission. As recently as last month, a Twitpic user uploaded newsworthy images of an incident on a plane, and many commercial entities took the image from Twitpic and used it without the user’s permission. To sum everything up, you the user retain all copyrights to your photos/videos and we are very sorry by the confusion our old updated terms of service caused.”

Source: http://blog.twitpic.com/2011/05/your-content-your-copyrights/

So they’re saying, these mean media people are making money of your photos and not even crediting you! So we’re going to take the money and the credit for you. Cheers!

Yes. Pursuant to TwitPic’s nonexclusive automatic license to use user-generated Content, it won’t pay an author of an image any royalties and won’t ask the author’s permission to use an author’s photo. These rights are bargained away via TwitPic’s Terms of Use. Therefore, if you use TwitPic’s service, then you automatically agree to TwitPic’s licensing terms regarding its use of photographs and other content uploaded by users to its site.

Use it, Lose it.

So what can we do?

Obviously, social media sites need some sort of nonexclusive limited license to allow them to operate the services they provide, however using that license as a tool to sell user-generated content to third-party affiliates for commercial gain at the expense of the user appears to be somewhat of a robber baron tactic. If one wants to prevent losing control over their uploaded and posted content, Mobypicture, yFrog, Flickr, Tumblr, Blogger and WordPress appear to be the better social media options, at least as of May 25, 2011 (a service provider’s Terms of Use can change at any time).

MobyPicture and yFrog (owned by Image Shack) both state in no uncertain terms that they will not sell your images.

Flickr

Tumblr

Blogger

Pinterest

WordPress

Flickr, Tumblr, Blogger, Pinterest and WordPress whilst having similar language separate themselves out by stating the above.

It’s an interesting study on human psychology that even after state and federal privacy laws are enacted to curb corporations’ unauthorized sharing of information with third-party affiliates, some individuals running social media services are still trying to get away with similar actions in the new digital realm through broad automatic licenses that must be agreed to in order to use their services. To play devil’s advocate, maybe that’s what social media companies need to do to earn a profit; perhaps these broad licences are in the best interest of the shareholders of the social media companies. But what about the best interest of the social media service’s users? Perhaps the benefits received from using a social media site’s services–including free storage space, easy publicity, availability of a large audience–could be worth the loss of the ability to bargain when it comes to a license agreement with the social media service provider regarding user-generated content. Still, it doesn’t seem fair to force a user into agreeing to a nonexclusive license to use uploaded content in any way that the social media service provider sees fit (including selling the content to third parties without permission and without payment of royalties) in exchange for use of the services.

How could legislators protect us?

Financial institutions covered by what is known as the Gramm-Leach-Bliley Act must tell their customers about their information-sharing practices and explain to customers their right to “opt out” if they don’t want their information shared with certain third parties. It will be the legislature’s job to propose legislation where social media sites must provide users with the right to “opt out” of sharing user-generated content with third-party affiliates. Or better yet, the right to not be included in such a third-party affiliate sharing scheme unless users “opt in,” which is how most European countries handle such matters. Otherwise, users of social media sites have little bargaining power or options available to protect the copyright in their content from over-broad, one-sided, automatic non exclusive licenses, which can be used to exploit content uploaded to the social media service in exchange for the mere use of the social media service. Since users and their content are the life blood of such social media services, are these sites biting the hand that feeds them or merely asking for fair compensation?

Other Offenders:

Whilst TwitPic has been the one who has taken the wrath of the media on this other sites also have worrying Terms of Service. Lockerz (formerly known as Plixi)

Lockerz

Instagram, ever popular with bloggers has the same clause, the exception being, you are able to mark pictures as private – there for rendering it’s use as photo sharing tool pretty ineffective. Facebook has similar privacy options but are more effective in terms of sharing.

Instagram

Typepad and Ow.ly are slightly different allowing for alternative interpretations but still have similar iffy clauses.

Typepad

Owl.ly

Interpretations are key here, and at this point there has been no precedent set, in a court of law, but that might all change this summer. Photographer Daniel Morel documented the aftermath of the devastating earthquake in Haiti. He uploaded his pictures to Twitter via TwitPic and AFP and Getty Images used the pictures often without crediting Morel. They then licensed his photographs to many other news outlets, including CNN, ABC, and CBS.  When Morel contacted the entities that used his photos with cease and desist letters demanding payment for use of the photos, they responded by suing him for “antagonistic assertion of rights.”  Morel counter sued and has since settled with only CNN, ABC, and CBS, but the case is still set to go to trial this summer between AFP/Getty Images and Morel.  AFP and Getty Images claims that they have “an express licence” to use Morel’s images or, alternatively, that they were “third-party beneficiaries of a licence agreement between Morel and Twitter.” The terms of service on Twitter claim that “by submitting, posting, or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods.”

Neither the AFP or Getty Images argued that it was a partner of Twitter.  Instead they maintain that the terms of service of Twitter allow the free distribution of images posted thereon, including Morel’s. The judge in the case disagreed with AFP and Getty Images, so it’s likely going to trial shortly on AFP’s, Getty Images’s and Morel’s claims against each other.

You can read more on the case here.

All in all it’s hard to know exactly what will result from all of this. Perhaps this case will spawn new legislation. Perhaps it’ll encourage more social media sites to clarify their terms of service for the better (like yFrog and Mobypicture) or worse like TwitPic. The important thing is being aware of your rights and always remembering to read the terms of service.

Kelsi Smith & Cirrus Alpert.

Comments

  1. Rob @ Fashion Luvr

    I use posterous and have never used twitpic.

    I setup a custom domain at, hi.fashionluvr.com

    Rachel Zoe also uses posterous,

    pics.rachelzoe.com

    I helped Sydne Summer of Think Thru Fashion setup posterous for her mobile photo sharing too.

    http://pics.sydnesummer.com/

    The main thing I hate about twitpic and others is they are showing ads and the user is the one doing all the work.

    Setup a way so you have the photos going on a page you control and dont let others make money off your creative photos.