You may remember how last year AFP and Getty sued Daniel Morel, claiming that by posting photos on Twitpic, he had given them permission to use the images. A court ruled that he hadn’t, despite the onerous rights-grabbing Twitpic terms of service. While I always believed that AFP/Getty would lose, because they had no affiliate relationship with Twitpic, I remember wondering how long it would be before a photo agency partnered with Twitpic to monetize the Twitpic terms. I thought that if Twitpic had retained permission to sell images posted on their site, it was a small wonder that no agency had partnered with them to make money selling these images. Well, that day has come.
While Twitpic is not the first social networking company with grabby terms of service, last month there was an important announcement. World Entertainment News Network (WENN) has become Twitpic’s “exclusive photo agency partner.”
- From their Terms of Service:
by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.Â Â [Â http://www.twitpic.com/terms.do
- From the New York Times:
World Entertainment News Network, a news and photo agency, announced this month that it had become the â€œexclusive photo agency partnerâ€ of Twitpic, a service with over 20 million registered users that allows people to upload images and link to them on Twitter. The deal allows the agency to sell images posted on Twitpic for publication”
Together that means that anything posted through twitpic is fair game to be licensed for a profit without your knowing or seeing any of it.
Why this is bad for photojournalists
- If you are a staffer at a newspaper, you don’t own the copyright to the images you shoot on the job. You may accidentally be giving away your company’s photos and getting yourself in a whole lot of legal trouble (each of these TOS contain indemnification clauses so if your company sues, you might end up involved and even liable).
- if you are an independent photographer, posting images to Twitpic is the equivalent to giving your photos to an agency and not asking for any payment or promise of royalties. WENN can make thousands of dollars off of your pictures and they don’t have to give you a dime. While you still retain licensing rights, a potential user is more likely to just go to an agency. They certainly won’t be thinking about how they can make sure you get paid.
Why is this a big deal now?
Social networking sites have had rights-grabbing terms like the Twitpic terms for years, but this is the first time I have heard of any of them openly trying to use those terms to profit from those images beyond the scope of the service itself.Â News organizations have certainly used images from social networking sites, but it is not usually clear how or if they have received permission or paid a licensing fee. However, Twitpic is perfectly clear: they make a profit, you don’t.
The Quick Fix
Fortunately there is an easy fix for twitpic. Follow the lead of celebrities like Ellen Degeneres and take your photos off now. There are several alternative sites that will host your images to post on twitter without onerous terms.
- yfrog is integrated with twitter and easy to connect to from your twitter account. Their policy is simple: “ImageShack will not sell or distribute your content to third parties or affiliates without your permission.”
- MobyPicture is another service that has similar terms.
If you are a staffer, be sure to check with your employer about their social networking policies regardless of what service you use. News organizations are in love with social media and are pushing their employees to use it, but they should all be creating policies and preferences. With the latest Twitpic move, it would behoove news organizations to create a list of social networking options that don’t put the company’s content at risk.
Twitter itself is starting to add picture sharing to its service. The twitter terms are as onerous as Twitpic, and they are even more straightforward about their intentions, noting that posting to Twitter gives them the right “to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services.”