Oh, We're So Sorry - Mea Culpa - We didn't mean that!

So, it's about 2am, and I am procrastinating falling asleep when I should be getting my beauty rest for day three of a huge annual report shoot that starts at 8am, but I have been tossing and turning about this all day, so now I am at my desk with another rant.

I am sick and tired of all these organizations that put out these terms that swipe broad (and unreasonable) swaths of photographers rights. I know that PDN didn't like it when Rob Haggart wrote The Biggest Scam in Photography - and called out PDN in the first sentence. Last year, about this time, we wrote - No Confidence Vote for the PDN/NGS Contest, (1/28/08), and then followed it up with a July posting - PDN/Billboard Photo Contest - Fair Terms, when they did have better terms.

Consider the following restrictions:

(Continued after the Jump)

1 - Send us your best concert photo you've taken in the last year. We have three categories:

A: Big Rock Star || B: Rising Star || C: Unsigned Artists

Result:
you will get the most amazing photographs of rock stars big and small. You can write an editorial article about how great the photographer did, and do an editorial story about how that picture was made. No releases necessary.

2 - Send us your best concert photo you've taken in the last year. And, as with the case last summer, here was a part of the rule:

If the photograph contains any material or elements that are not owned by the entrant and/or which are subject to the rights of third parties, and/or if any persons appear in the photograph, the entrant is responsible for obtaining, prior to submission of the photograph, any and all releases and consents necessary to permit the exhibition and use of the photograph in the manner set forth in these Official Rules without additional compensation.

Result:
Good luck trying to get a model release from some multi-platinum-selling artist! You will limit the entries to those which can be commercially exploited (reminder: exploit is not a bad word, it means "use to the maximum extent allowed). If the images were not being used in a commercial way, but rather, editorially, as noted in #1 above, then a release would likely not be necessary.

It is important to note that Daryl Lang, who wrote the response to Haggart, acknowledges that Haggart defends entry fees and so on, and Lang also rightly says "Contests help keep our lights on." While PDN's contests (here) like their 2009 music contest, which closed on Sunday, have good terms now like the requirement that you acknowledge "the right of PDN and Billboard to use the entry for publication in PDN and Billboard magazines, on pdnonline.com, billboard.com and in exhibitions and promotions related to the contest up to 18 months following the contest", and there are now no model release requirements, Xerox's (NYSE: XRX) MyShot08 contest, which we wrote about last year - Xerox - "MyShot" Takes Aim At Unsuspecting Students, was horrible, and, had to be re-written.

Like Xerox, and others, I am getting tired of the long list of organizations who hide behind the lawyers when the bad terms are called to light. Whether it's Xerox, PDN, Billboard, Microsoft, or NGS, people damn-well better be looking at the terms they paid their lawyers to craft. Don't people realize we are now all actually reading these things? I can't wait to see some photo contest entry term that says "entrant (herein after referred to as "Rumpelstiltskin") agrees to convey, for no additional monies, their firstborn child". To an aspiring photographer, often their early best work feels like their first born.

The latest is Facebook. Many of you sent me the suggestion of writing a post about their horrific terms where they got to keep, in perpetuity, all the rights they wanted to your photos, text, videos, and so on, even if you left their service. Heck, I went and looked, and www.FacebookStock.com was even taken, but not for what I thought it might be. Then, of course, The Consumerist wrote - Facebook's New Terms Of Service: "We Can Do Anything We Want With Your Content. Forever." , and, well, interestingly enough, for all the "share the photos, share the music, everything should be free" youth of America, that didn't sit too well. The term in question was:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

Now, of course, they're out with their Mea Culpa. Consumerist wrote another piece about this - Facebook Clarifies Terms Of Service: "We Do Not Own Your Stuff Forever", and of course, Mr. Facebook himself, Mark Zuckerberg, had to blog about this, and say - "On Facebook, People Own and Control Their Information", when he writes:

When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they've asked us to share it with. Without this license, we couldn't help people share that information.

Ok, right. He then suggests, as the defense of the "forever" concept:

One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person's sent messages box and the other in their friend's inbox.

If that were really the case, then I would have to sign the same type of agreement with my internet service provider, or my website hosting company. This is backpeddling at it's finest. Once again, blame the lawyers when you should have thought this through more in the first place.

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