Warning – this is a long piece. If you have no interest in protecting your photos, you may not care to read it.
If you post your photos/videos online via a commercial service like Flickr, Vimeo, SmugMug, YouTube, etc., you are at some point during the sign-up process going to be asked to click a box that says you agree to the site’s “Terms of Service” or TOS. Dollars to doughnuts – if you’re like most people, you’re NOT going to read the stupid thing. You’re just going to click. BAAAAAAAD MOOOOOOOVE!
You could very well be signing away the rights to your work – or at least allowing some unknown third party the ability to profit from it without your input.
Fortunately, (or unfortunately – depending on how you look at such things) I am the kind of person that reads the TOS. I went to law school and while thankfully, have decided not to take a job as an attorney, I can’t help but explore the legal side of things now and then.
When I started posting pictures to commercial online services, I was careful. I started with Flickr, which has a pretty good TOS. But then the Facebook flap happened. They changed their TOS (as these sites often do) and it became clear that while they may have no ill intention, they COULD use photos in a way that made me uncomfortable. I closed my Facebook account. Facebook recently backed up and decided to leave the old TOS in place after community outrage. I am still going to leave my account there closed because I never got much out of it anyway. I think it’s more suited to you “young folk.”
I started examining other site’s TOS more carefully and I must say I was pretty shocked. Most of the commercial sites out there have very broad, very Draconian TOS contracts. Most are so bad I won’t even consider putting my work there, no matter the promise or payoff. But that’s just me. Some photographers will assume it’s worth the risk. I have no problem with that, as long as it’s an informed decision.
This all started really demanding my attention when the Facebook thing happened. But it expanded when I read the TOS at Vimeo. I started my account there quite some time ago and had never taken time to carefully read their TOS. Either they changed it or I just noticed it, but they include a sub-licensing clause, among other things in their TOS that sent me packing. We’re taking all the videos we make for this site off Vimeo and putting them on SmugMug. More on that in another post. Now back to the TOS controversy.
If you spend enough time on the Internet, you’ll realize that every 20 year-old kid on the Twitters considers himself/herself a legal expert. Unfortunately, life is not a video game and this stuff is serious. So I interviewed, (wait for it – wait for it) TWO ACTUAL ATTORNEYS! You know, people who practice law for a living. They have licenses and everything! This article is based on what they had to say about the subject.
Rather than make this about Vimeo, which I don’t want to do, I decided to write this from the perspective of all creatives putting work onto commercial sites. I sent some of the particularly onerous clauses from the TOS of company XXXX. You could insert dozens of company names there. It’s not important. After reading this you should have a better idea of what to look for and you can make up your own mind. If you’re lazy, you can just look at where I put my stuff and generally guess that I think those places have the best TOS.
Let’s start by asking the attorneys, what they think of two clauses I see in many of the TOS contracts online.
First, we’ll ask Denise M. Howell: technology lawyer; blogger and columnist; host of this WEEK in LAW.
I asked Denise to examine the following TOS clause and to break down in language that would make sense and make a difference to photographers and video producers what this means – i.e., what consequences could come from agreeing to this?
Here’s the sample TOS clause:
“By submitting your Submission to XXXX, you hereby grant XXX and its affiliates, successors and assigns a worldwide, perpetual,
non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license (with a right to create
derivative works) to use, copy, transmit or otherwise distribute, perform, modify, incorporate into other works, publicly perform and
display your Submission or any portion thereof, in or through any medium, whether now known or hereafter created. XXXX shall be entitled to unrestricted use of any Submission for any purpose whatsoever, commercial or otherwise, without compensation to the submitter.”
Here’s what Denise said:
“The sample license clause you’ve provided grants very broad rights from the user (the licensor) to the site (the licensee). Unfortunately, clauses like this are fairly common on sites that accept, and often rely heavily for their business model on, user submissions. When I see clauses this broad in the UGC context, they make me think the company may not have thoroughly considered the interplay of its user relationships and the licensing situation. They further make me think the company, its lawyers, or both, either have forgotten or may not yet have learned that many users today actually read, discuss, and consider the impact of such terms on their own interests and the works they’re submitting. If users conclude the clause is overly broad, to the point where the benefits they derive from the site do not justify the rights they’re being asked to give up, increasingly they will vote with their feet. When they do so in a sufficiently public way and in sufficient volume, the site winds up sacrificing tangible business benefits — users, reputation, and goodwill — in the name of “risk management.”
Here is some plain English commentary on the terms in the sample clause:
- “affiliates, successors and assigns:” the license you’re granting is not exclusive to this company, but may also be exercised by affiliated companies you may be unaware of, companies that might buy or otherwise obtain the assets of this company, or companies to which this company may otherwise grant its rights. In other words, you may find the license you’re granting here exercised at some point down the road by a company you’ve never heard of.
- “worldwide:” self-explanatory. The license applies everywhere.
- “perpetual:” again self-explanatory. The license does not expire.
- “non-exclusive:” this wording actually favors the user. Granting this license does not mean you may not also license your works to others; you may.
- “royalty-free:” the company does not need to pay you royalties in connection with use of your works.
- “sub-licensable (through multiple tiers):” this term is a bit like the old Herbal Essence shampoo commercial, with it’s “And so on, and so on…” refrain. You agree the company may license its rights to use your works to third parties; and they may license their rights to use your works; and so on.
- “transferable…(with a right to create derivative works):” in addition to the assigning and sub-licensing the company may do, it may also transfer (e.g., give away or sell) its rights to use your works. Further, the license — whether held by this company or its affiliates, successors, assignees, sub-licensees, or transferees — allows whoever holds it to create derivative works from the works you submit. A derivative work is a new work that includes the major aspects of your original work. Creating derivative works from another’s copyrighted work is a no-no under copyright law, in the absence of a license to do so.
- The scope of the license: “to use, copy, transmit or otherwise distribute, perform, modify, incorporate into other works, publicly perform and display your Submission or any portion thereof, in or through any medium, whether now known or hereafter created.” This is the part of the license that lets a site display and distribute the work you are submitting, which presumably you want it to do or you wouldn’t be submitting it. However, the “in or through any medium, whether now known or hereafter created\” part could mean you might see your work being displayed or distributed in ways you didn’t contemplate or expect when you uploaded it to the Web.
- “…unrestricted use of any Submission for any purpose whatsoever, commercial or otherwise, without compensation to the submitter.” There are no restrictions on the company\’s use of your works, for any purpose it sees fit. And it can sell or otherwise profit from its rights to use your works, without paying you anything.”
Another clause I often see appears below. I asked Denise what this was all about.
“You also grant each user of the XXXX Site and Services a non-exclusive license to access your Submission through the XXXXX Site or any other access point authorized by XXXX, and to use, copy, transmit or otherwise distribute, perform, publicly perform, create derivative works of, and display your Submission to the extent expressly authorized by XXXX on the XXX Site and/or in this TOS. Any Submission you provide XXXX will be deemed public information.”
“Well, it’s not possible for us to read the minds of the lawyers who drafted the clause I just commented on. The second clause covers two other points. The first (very long) sentence grants a license not to the company, but to its other users, who also have various rights to display and use the works you submit. The second (shorter) sentence appears designed to stave off claims that the company has violated your privacy rights through its use of your submissions.
Sites that rely on user submissions as part of their business model do have legitimate legal risks to manage. They must make sure to grant themselves the rights they and their users actually need in order for the viewing and sharing features of the site to function. They will want to make sure the rights the business relies on will go with the business should it change hands. They will want to make sure there is a clear understanding between the company and its submitters as to who owns the primary rights to submissions, when and whether any compensation is owed with respect to submissions, and who is responsible for any unlawful aspects of submissions. Sites upend user expectations — because let’s face it, precious few people ever actually read these terms — when, in the name of caution and “foresight,” they grant themselves rights they don’t really need or ever intend to use. Where user submissions are a key part of the business model, I think it’s incumbent on managers and their legal counsel to avoid legal boilerplate, and instead narrowly tailor terms of service (preferably, comprehensible ones) to fit the company’s actual practices and realistic future strategies.”
So I assume that if you’ve read this far, you’re still interested – so I asked Denise some follow up questions.
Scott: “When the overall TOS is so aggressive, broad and one sided, would there be less likelihood that a court would enforce it?”
Denise: “Yes, that sort of situation sets up a claim that the contract or its terms are unconscionable and unenforceable. For example, a court prevented Linden Labs from enforcing its arbitration clause a couple of years ago; see http://bnablog.bna.com/techlaw/2007/06/arbitration_cla.html.
Click-wrap and browse-wrap agreements in general are enforceable (see e.g. http://is.gd/kvGP), but when they deprive users or substantial rights and/or do not give adequate notice of changes, they become easier to challenge.”
Scott: “Where would users sue over these matters if they feel like they’ve been infringed?”
Denise: “Copyright infringement is under the exclusive jurisdiction of the federal courts, and I assume that’s the kind of claim you have in mind. (E.g., the license is invalid and the site’s use is infringing; or, a party could ask the court to define the relationships or resolve a question of law through declaratory relief.)”
Scott: “Would you care to provide some general commentary on the state of these TOS and what photographers/videographers might do to protect themselves?”
Denise: “The situation at the moment is less than ideal from the user/consumer/customer standpoint. The scopes of licenses concerning user submissions are all over the map. While some licenses are narrow, most are broad. There’s little consistency — except to the extent sites tend to emulate forerunner sites with similar business models — and the only accountability right now is being prompted by vigilant users like you. Given this uncertainty and the real risk photographer or videographers might find themselves granting broader rights than they intend, it should go without saying that it pays to
read before you click or upload, and if any red flags pop up, investigate further (and possibly seek legal advice) before
proceeding. The best leverage users have right now is the ability to vote with their feet.”
I have voted with my feet, moving my content off several sites and avoiding placing it elsewhere in the first place. In my opinion, looking at both what Denise had to say and my own experience, the lawyers who typically write these Draconian TOS agreements are lazy or overbearing – and in either case, I don’t want to take the chance that those thing negatively impact me. If you’re an amateur who just doesn’t care what happens to your stuff, none of this probably impacts you. But to those of us who are professional shooters, it’s a BIG deal.
Just to make sure I was covering all the bases, I also interviewed Brett J. Trout, author of CyberLaw. Brett is an attorney, author and blogger specializing in IP and Internet Law Issues.
I provided Brett the same clauses I provided Denise. He stressed it’s extremely important to read the whole agreement, but agreed to help me parse the sections I highlighted.
Brett’s take was as follows:
“While the language you sent appears to give XXXX a license to use your Submission forever, for whatever they want, if the TOU also includes language that says:
‘For any Submission that is a video, the licenses granted by you herein shall terminate within a commercially reasonable time after you remove or delete such Submission from the Site. For any Submission that is not a video, the licenses granted by you herein are perpetual and irrevocable.’
This language would override the seemingly broad language you outlined, at least for videos. As soon as you take your video off the website, XXXX has no license to use your video.
But other problems arise if the TOU also states:
‘By submitting a Submission, you waive the right to make any claim against XXXX related to the Submission, including, but not limited to, unfair competition, intellectual property infringement, invasion of privacy, negligence, breach of implied contract or breach of confidentiality.’
Does this mean that they have no license to use your video, but you have no right to sue them if they do? That is what the language says. I believe however, that a court would construe this language against the website and find that the waiver to sue only applies to non-video submissions. In general, if the TOU tends to contradict itself like this, I would be concerned about how any of your content is being handled.
The important lesson is to READ the entire TOU to see how it applies to what you will be doing on the website. For the above hypothetical website above, you may not want to post photographs, which XXXX can continue to use after you take them down. If you post photos on the website, you may lose your right to prevent their distribution. You can still license your photographs to others, but it is unlikely others will be interested in paying much for the license if they can get a free license from XXXX, which XXXX will have the right to give. For videos however, which XXXX has no right to distribute after you take them down, the website may be fine for your needs.
As for protecting the websites, the language you referenced reads:
‘You also grant each user of the XXXX Site and Services a non-exclusive license to access your Submission through the XXXXX Site or any other access point authorized by XXXX, and to use, copy, transmit or otherwise distribute, perform, publicly perform, create derivative works of, and display your Submission to the extent expressly authorized by XXXX on the XXX Site and/or in this TOS. Any Submission you provide XXXX will be deemed public information.’
This does protect the website, but it may cause additional problems for you, even if you only submit videos. The TOU states XXXX can post your videos and grant users of the website the right to distribute your videos. Once you take the videos off of the website, XXXX loses its license to distribute the videos, but the users licenses to distribute seem to remain in effect. These users can go off and continue to distribute your photos and videos as much as they want. In this case, you may not want to post either photos OR videos.
That is what is so difficult about understanding various TOU. Language which appears to be in the users interest, may actually contain such a broad third party license that what remains of your ownership in the content is almost worthless.
Another thing to watch for is a website changing its TOU without telling you. This is a very hot topic right now, especially in light of the recent Facebook flap. Facebook tried to change its TOU from “we stop using your content when you take it off of Facebook” to “we keep a copy after you take it down.” The major issue was changing the TOU after people had already submitted content under the old TOU. There is no problem narrowing a TOU down the road, but unilaterally broadening a TOU is generally not well received by either users or the courts.
Not all TOU are created equal. Some, like the MySpace TOU are very user-friendly. They only grant the website the limited right to use your content on that website until you take it down and private” content is not distributed outside of the website. These narrow TOU also do not grant the website the right to sell your content or to use it outside of specifically defined areas.
Other user-friendly TOU from Flickr, Picasa, YouTube, LinkedIn, Twitter and Facebook force the websites to stop using your content as soon as practicable after you decide to remove your content from those websites.
My general impression is that this area of the law will continue to change rapidly as users define how they are willing to allow their content to be used. Many older TOU may have very broad, user unfriendly provisions. This does not necessarily reflect bad faith on the part of the website, but may instead reflect the websites desire to allow it some flexibility to unilaterally tailor the TOU to its users desires at a later date without running into the Facebook problem. No one cares if you make the TOU narrower down the road. As the website does not know what it, or its uses may want to do with the content a decade from now, the broad language provides the flexibility to narrow the TOU as those uses become more apparent.”
So there you have it. That’s what the lawyers think. How will this impact you?
As content creators, we should get advice from the attorneys and then it’s our responsibility to act on it. The terrible TOS agreements that plague many sites will cease to be a problem for us if we simply refuse to post our content in those places. We have the power. We should use it.
In the meantime, you’ll find our videos at SmugMug. My private photos are on Flickr, although I don’t post often there and never post anything large there for fear of Copyright infringement, but that’s another story.