Photofocus

I apologize in advance for the long post.

As usual, anytime I write about anything remotely related to Copyright, the kids go crazy. And this post on Twitter’s TOS was no exception.

The mob has attacked me. This is nothing new. It also won’t deter me. Pretty much every time I write about something like this, I am the recipient of nasty hate mail. Yet, I keep doing it. I’m either a glutton for punishment or I have a sincere desire to make sure my audience is paying attention to things that I think they need to know about. I assure you the latter is true.

A semi-popular photo blog (a competitor – no doubt trying to piggy back off my traffic) attacked my reasoning in the Twitter TOS post using a highly-trained expert to diagnose my position. Well okay. They interviewed a cool kid, fellow blogger and part-time video game designer who isn’t an attorney: But he plays on one the Internet and was willing to disagree with me so I guess that was criteria enough for his “expertise.” In any event, I think there has been some misunderstanding about my original post and because I want to do the best I can to inform my audience I have an update.

First, to those of you who wrote to me asking for advice on this subject: I apologize but I can’t give legal advice. Hire an attorney. I said what I said based on what my attorney told me. Granted, my attorney isn’t in his 20s. He is a real attorney. He thinks Copyright is a good thing. He doesn’t design video games or websites. He doesn’t listen to any of the new popular bands. He doesn’t own a skate board. So in short, HE is not cool. But his opinions are and he does a darn good job of representing me in court – so I take his advice and opinions seriously. You may be able to get help from Legal Aide offices, law schools or paralegals if you are not able to retain a private attorney. If you’re a serious professional photographer in my opinion, you should have some sort of relationship with an attorney so you can investigate these matters for yourself. Back to the post…

The fine points of the original post that many seemed to miss need to be re-stated.

1. I plainly said that not everyone needs to worry about the Twitter TOS – simply those who hope to sell their photos.

2. I plainly said I don’t think Twitter is evil. They are just doing what their lawyers told them to do. I personally think their lawyers were a bit lazy in writing such a broad TOS, but that’s just my opinion and I am fine with people disagreeing with that opinion. It would be nice if they had some basis for that disagreement other than they don’t like fat guys – but that’s life.

3. My primary goal was to simply get my audience to read the Twitter TOS and to think about this. That’s it. That’s all. Nothing more – nothing less. My crime is asking my readers to be aware of the possibilities. I merely want photographers to know what they are agreeing to when they use Twitter and to decide if the service they provide is worth the potential risk. For most of you – it is. For some of you – it may not be.

Several attorneys contacted me about the article. Most thought I was pretty spot on. One or two had questions here and there. One disagreed more vigorously. (More on that below.) I am surprised that my post stirred up so much controversy. Perhaps it’s because it was often misrepresented by those with an agenda (and yes – I am talking about you folks who think all Copyright is evil.) Perhaps it’s because some people didn’t read the post as carefully as others. Perhaps it’s because some people didn’t read the post at all but jumped into the fray because they followed a comment thread somewhere else. I’m willing to admit that I may just not have done a good job of writing down my thoughts. Frankly, I don’t know the answer. One of the things that I still haven’t figured out, even after writing about photo-related stuff on the Internet since 1998, is why people get their panties in a bunch so often.

When I wrote a similar post about Facebook I didn’t get nearly as much blowback. Sure the anti-Copyright crowd chimed in but that was it. Is it because there more Twitter fanboys than Facebook fanboys? While I am clearly being a bit snarky here – you hopefully get my point.

Perhaps some people just had legitimate disagreements with my position. If those disagreements are based on a different interpretation of the law by someone qualified to make such a determination, then I welcome the discourse. I entered into such a discussion with Eric Reagan – a lawyer – and photographer over at Photography Bay. While we disagree, his approach was informed, friendly, respectful and even helpful. He had one line in our email exchange that I really liked – and I am paraphrasing – “In every legal case there is at least one lawyer who is wrong.”

Eric wrote a thoughtful rebuttal to my piece here.  Keep in mind he is writing from a legal (not business) point of view and as he says, he is a lawyer – but not YOUR lawyer. In an email to me he admitted that if he were MY lawyer, he would advise me to take a similar position (but for different reasons) than my own lawyer did. I know this is getting very confusing and long-winded so I’ll finish up. I just wanted to point out that there is a way to have real discussions with people you disagree with without name calling. Thanks Eric.

Regarding the legitimate confusion some people felt after reading my post, I want to update my post a bit for the purposes of clarification.

a. Twitter is planning to allow photographers to embed images directly within the Twitter service – not relying on a third party application. This will cause more concern than anything currently being done on the service. I should have made this point clear in the original post.

b. There’s already at least one federal court case being litigated regarding this very issue. Read about it here http://www.bjp-online.com/british-journal-of-photography/blog-post/1735505/afp-morel-the-debate-rages and here. http://www.bjp-online.com/british-journal-of-photography/blog-post/1740373/afp-morel-questions

c. At least one other prominent blogger who covers the business side of photography agrees with me – in fact goes further than I do with regard to the Twitter TOS – John Harrington chimes in at http://photobusinessforum.blogspot.com/2010/10/morel-v-afp-afp-v-morel-which-way-blows.html.

To wrap up – the fact that there is actual on-point litigation regarding the very thing I talked about in my post isn’t exactly confirmation that my post was “Much Ado About Nothing.” This is real. It’s not a faux controversy. This isn’t something I just dreamed up. There’s no reason for me to do that.

I am taking the approach that this is all untested water. Why risk the chance to score big bucks down the road in an exclusive image licensing contract only to find out it’s void because you shared something on Twitter? I guess I am making more of a BUSINESS case than a legal one and hopefully those who have a sincere interest in this topic will understand the difference.

My only goal was to get everyone reading the terms of service that companies in the social media space use. This way everyone can know what they are actually agreeing to. I have no agenda other than trying to inform.

If you’re at all interested in becoming a professional photographer, don’t rely on the mob for your legal advice. Contact an attorney and make up your own mind. Read the TOS for each service you use. Make informed choices. Don’t just assume everything is groovy.

I hope this post illuminates further for those who were confused. And for the record..I LOVE Twitter. I think it’s the coolest thing on the Internet. I just won’t use it to share my photos unless the TOS changes. I’m moving on now.

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This post sponsored by the Digital SLR Store