Tuesday, February 17, 2009

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
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.
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.

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.


Anonymous said...

I too wrote about Facebook's policy back in July of 2008. You can read my article at http://www.roweimages.com/blog/2008/07/13/why-i-dont-post-photographs-on-facebook/ if you like.

The revised terms recently announced are even more egregious and far reaching than the previous version. They are indefensible in my opinion.

Anonymous said...

This is to you idiots that keep insisting that I put up a profile on Facebook or MySpace......go F yourselves.

Like I want to make my shit public and let Zuckerberg have ownership to my information and content.

Two words.......blow me.

MarcWPhoto said...

Two things:

1) Things like this are why I am slowly moving away from even the tenuous connections I have with mass-market social networking sites. Fortunately, your own host and photoblog software are available for about the same price as coffee. I use the free PixelPost photoblog software - ten minutes to set up, customizable, and the content lives on my server.

2) I hope it's clear from the above that as a photographer I do not approve of such things: I rarely enter contests and have been known to write scathing letters when I notice rules like this for them or for other submissions. In fact, when I recently won a magazine photography contest prize, I sent the editor a license for the photograph which specified what I thought were appropriate rights: they accepted it without comment and published the photograph. (Their rules weren't that bad or I wouldn't have entered the contest, but they were a little vague.)

That being said, as an attorney, if my client comes to me and asks me for a set of "contest rules," and doesn't specify what they want, the above is exactly what I am going to write. Why? Because it's my job to represent my client to the best of my ability. Whether they use the rights or not is up to them, but if I don't put them in, and some intern uses the photograph for a purpose not allowed by the rights grant, my client gets sued and loses. If I do put them in, they either don't get sued or they don't lose if they do. I do not include "exclusivity" unless explicitly told to, because that's not necessary to protect my client, but otherwise, yes, I'm going to ask for broad rights, forever. Not as a money grab, but as insurance against interns. When you have some way to stop people rooting through old image directories and using stuff inappropriately DESPITE BEING TOLD FREQUENTLY THAT THEY CANNOT DO THIS*, you let me know, and I'll reconsider my stance. Until then, gimmie gimmie gimme. Don't like it, don't enter my client's contest.


*Can you tell I've been in this situation? 'Cause I have.

Anonymous said...

One of the maddening parts is that its not even good lawyers who write this. As much as they go overboard trying to insulate the company and keep the user at arms length, they leave very obvious failures that undo themselves:
How about this from their TOS:
"If you are between the ages of 13 and 17, we strongly suggest that you seek parental consent to use the Facebook Service."

"Strongly suggest"? Those are minors, who cannot legally enter into a contract. Anything they upload is immune to the TOS. At that point, all the fretting Facebook has done to get the rights they claim they need is moot. If they've gone to the trouble of thinking about parental consent, how about go all the way and require it?
Who really writes this stuff?

Anonymous said...

Have you seen this - Wikipedia Loves Art,


In cooperation with museums throughout the world no less. None of these museums can claim they do not understand IP or copyright. This contest started through Brooklyn Museum of Art. They are big on Social Media and Collective Art. They have moved on to using Wikipedia and Flckr as direct feeds for content. They are organizing groups of people to meet up at their chosen museum and photograph artworks to illustrate wikipedia articles. Photographers have to belong to a flckr group to submit images through.

All images submitted are being required to be labeled as public domain through Creative Commons, and for some museums the lucky winner gets to have their image used in a large advertising campaign for the museum. On bus advertisements and airport brochures.

Lucky them.

Great articlle, John.

MarcWPhoto said...

Chicago Photographer, while I share your frustration with the state of the legal profession, that language is not on its face ridiculous, and minors can enter into binding contracts... it's just that they themselves can't be bound by them. (The definition of a minor varies from place to place, as well.)

In my opinion, that is in there for scare value. If the kid and/or their parents *think* that the contract is binding, they won't fight. Of course, if the situation is such that the minor can renounce the contract, you're quite right, it's useless. (Unless the minor becomes a major and lets the statute lapse... in which case it suddenly becomes binding again!) However, we have to try. Again, it's what we do.

You want to blame anybody, blame clients who won't listen to us when we say things like, "Don't let interns do ad layout," and "Don't set up websites that fourteen-year-olds post pictures of themselves on wearing bikinis and drinking beer." We can only serve our clients as best we can. So long as they don't break the law or violate our ethical constrictions, we are bound to help them do stupid things in the least-stupid way possible.


Ken Lopez said...

This is the kind of stuff that keeps you up at night?

Time for a vacation, John.


Anonymous said...

Try to sleep, I hope that lot of photographer understood what you mean.
Pro try to protect their rights.
Amateur simply don't.
I lead photo tours in Africa, last year I went to Guinea Bissau, Guinea Conakry and Mali, there were about 10 photo enthusiast.
Most of them put their picture on Fotolia and after 1 year they earn 20 dollars. Others partecipated to photo contest and they lost their editorial rights forever...
I warend all of them dring the trip... But...

Paulo Rodrigues said...
This comment has been removed by the author.
Paulo Rodrigues said...

In my own blog I wrote about facebook's rights grab and one of my readers pointed me to a thread on facebook where Doug Beaver, a representative of facebook, said, "I think we're focused on the social aspect of sharing photos with your friends at the moment. Perhaps we will find ways to monetize photos in the future, but right now I think we want to make it the best social photo product out there."

Subsequent to that they added the perpetuity clause. And to this day people are responding to facebook's 10 Billion images boast saying its great and keep going.


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