Saturday, November 14, 2015

EyeEm - The Joke Is On Us

The sad joke amongst photographers is how many clients seem to think "will work for photo credit" is fair and reasonable; and the varied responses include "my landlord won't take photo credit for my rent" and "I can't eat a photo credit". Unfortunately, EyeEm is capitalizing and compounding on the joke "there's a sucker born every minute" because many of those suckers are talking themselves into shooting for credit.

That's right.

There are several over-arching concerns any professional photographer should have with the EyeEm business model. David Robin, photographer and advocacy lead for the American Photographic Artists (APA) trade association , has outlined several problems. Among them -

  1. EyeEm's pricing model undercuts the established market and extremely undervalues and commodifies professional photography. EyeEm's compensation rate to photographers for stock imagery with unlimited rights in perpetuity is as low as $10 ($5 if split with a third party). Even more egregious, EyeEm has dredged the bottom and doubled down on their exploitation model by only offering a credit line as compensation for photographer-funded spec work with unlimited rights in perpetuity for use by Fortune 500 corporations. Clearly their pricing sets a dangerous precedent that, if it supplants established pricing models, will in the end deprive pros from making a viable living. 
  2. The fact that EyeEm is based in Germany with no established legal entity in the U.S. should be a concern for any U.S.-based photographer. The cost and logistics of a U.S. citizen pursuing any legal recourse against a German based company for any breach or cause would be extremely prohibitive. There are many examples of companies based overseas that have been guilty of a breach of contract and/or illegal activity that went un-pursued leaving victims with limited to no recourse. 
  3. EyeEm has inappropriately portrayed their business model as a benign social media site rather than the for-profit stock photo and spec-assignment agency they are. 
  4. EyeEm has inappropriately lifted many of their contractual stipulations from social media TOS agreements. This deception is financially convenient for EyeEm, their investors and image buyers, but devastating for photographers and image creators. 
Here is an outline of the concerns with EyeEm's Terms of Service and Third Party Distribution Agreement. Here is the delineation of the most troubling stipulations in these documents:

  • Clause 5.2 Undermines the creators copyright (and future value of their work) by allowing EyeEm to have the unlimited royalty free ability to sub-license the User's work worldwide in perpetuity to any and all unnamed third parties without express approval nor compensation to the creator. 
  • Clause 5.2.3 Undermines the creators' copyright (and future value of their work) by allowing EyeEm to use the work for any and all advertising for EyeEm and any unknown affiliates in perpetuity without express approval nor compensation to the creator. This clause goes on to allow EyeEm to modify or change in any way they see fit the creators' images without express approval. Even if that modification might expose the creator to undue legal and financial ramifications caused by infringement, privacy violations, defamation etc. not of the creators' making. 
  • Clause 5.3 This inequitable clause allows EyeEm to post or use a creators' images without proper copyright notice or identifying the creator in any way. In this way EyeEm potentially undermines the creators' ability to prove ownership if infringement should occur. This is especially troublesome as it sets up a claim of Fair Use by an infringer under the Orphan Works carve out. 
  • Clause 7.2 EyeEm forces creators to take full legal and financial responsibly for their content even if that content might have been altered and / or modified without their approval by EyeEm (see 5.2.3) and in so doing exposed the creator to potential infringement, privacy violations, defamation etc. without their knowledge nor approval. 
  • Clause 8.1 This extreme indemnification clause places an undo financial and legal burden on creators to protect EyeEm, a wealthy global corporation and any and all third parties they associate with, against any and all damages or lawsuits arising from events that the creator may have no control over including defamation, infringement, privacy violations etc. In addition this section fails to provide any reciprocal indemnification for the photographer by EyeEm and it's affiliates. 
  • Clause 9.2 This places the undue burden to ensure the "legality of any Content" on the creator even if EyeEm or it's affiliates should alter that Content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clauses 9.5 - 9.6 These clauses expressly release EyeEm and its affiliates from having to pay for any and all legal or financial damages if EyeEm or it's affiliates should alter content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clause 10 Allows EyeEm to change this signed and executed agreement at any time and for any reason at their sole discretion without being obligated to directly notify creators via email in advance. A legal and binding agreement such as a TOS is not changeable under the law unless all parties proactively agree to the changes. Short of that, the accepted and ethical way for EyeEm to go about changing the terms of the TOS is to send an email to each and every member with an appropriate amount of lead-time to either accept or reject the changes, as banks have done for decades. 
There are also several critical omissions from their TOS that are standard and required to ensure all parties are protected:

  1. EyeEm has purposely omitted any stipulations that outline their responsibility to collect and hold funds in a fiduciary capacity and further fails to stipulate that these funds are being collected on behalf of the creator and are not the property of EyeEm. This clause is standard in any agreement between an entity or person collecting funds on another's behalf. 
  2. EyeEm has failed to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm default on their required duties in this regard. 
  3. EyeEm seems to purposely fail to delineate the prevailing law, venue and method for resolving disputes with creators. While deceptive and non-standard for American based companies, this glaring omission seems to be a common tactic used by overseas corporations doing business with U.S.-based photographers by unnecessarily withholding this critical information from the creator, EyeEm anticipates that U.S.-based creators won't realize the extreme cost and prohibitive logistics of bringing a case against EyeEm for breach, in German courts. If EyeEm wanted to be truly transparent and supportive of U.S.-based photographers, they would create a legal entity in the US to facilitate the fair resolution of disputes. At the very least EyeEm should state the venue, prevailing law and method for reparations in their TOS. 
In terms of their third party Distribution Agreement, there are several areas in the Agreement that appear purposely opaque (and/ or omitted) which hold a potential for the photographer to be unwittingly exploited. The key areas of concern are:

  1. EyeEm fails to list the third parties the creator is agreeing to have their images sold through. 
  2. EyeEm fails to provide the unnamed third party's terms and conditions the creator is expected to adhere to. 
  3. EyeEm fails to acknowledge that they have partnered with Getty Images as a third party and does not delineate the onerous terms of the Getty Images in the Agreement though they require the creator to adhere to them. 
  4. EyeEm fails to outline how the funds will be split between the third parties and the creator. 
  5. EyeEm fails to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm and / or the third party defaults on their required duties in this regard. 
So, how does EyeEm do this? They entice you with "missions" you don't get paid to complete. Here's one for Mercedes Benz:
Your Mission: The sheer beauty of nature, an incredibly stylish couple or perhaps some breath-taking architecture… this mission is all about finding the elegance all around us. If elegance is the quality of being graceful and stylish in appearance or manner, what images convey this? Show us to take part in this mission.
Your Reward: The winning five images will be featured across Mercedes Benz social media platforms, which have a cumulative reach of over 17.5 million people. The top images will also be featured on the EyeEm blog as part of an image collection.
Then there's one for Motorola, where they pitch it as:
What’s super cool about these missions is that your photo could end up as a featured wallpaper on one of Motorola’s phones. Motorola are putting together a range of images to be featured as wallpapers on their devices, and are looking for your colorful photos to be included!
In the end the EyeEm business model is representative of the pervasive devaluation of professional photography and a race to the bottom to see which entity can charge the least for photographs while covering their risk on the backs of the ones they rely on for their product. Without the proactive participation of pro photographers, however, this practice could not succeed.

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Newer Post Older Post