- Join the WBA
- Find a Lawyer
- Calendar of Events
- CLE Courses
- Media Center
- For the Public
- Members Only
- Pro Bono
- Bar Foundation
Fine Print Blurs Who’s in Control of Online Photos
From the May 22, 2011, New York Times
By JOSHUA BRUSTEIN
If you post a photo on the Web, it still belongs to you, right? Well, be sure to read the fine print.
World Entertainment News Network, a news and photo agency, announced this month that it had become the “exclusive photo agency partner” 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, and to pursue legal action against those who use such images commercially without its permission, according to the agency.
“There has been much unauthorized use of Twitpic images which we shall be addressing without delay,” said Lloyd Beiny, the agency’s chief executive.
World Entertainment News, whose photo business revolves largely around shots of celebrities, says it is interested only in the photographs posted to the accounts of people like Britney Spears, Russell Brand and Demi Moore. But the scope of the deal is not clear, and professional photographers are worried that it could allow the agency to profit from any photo posted to Twitpic. Others say Twitpic’s move shows the tenuous control people have over what they post through Internet services.
The extent of that control is typically laid out in the terms of service that users agree to when they sign up for Internet services and smartphone applications. But the more such services people use, the harder it becomes to keep track of the things to which they are agreeing. And of course many terms of service, which are heavy on legal language, include clauses that assert the company’s right to change them without notice.
In a recent episode, the television show “South Park” poked fun at the tendency to consent to such agreements without reading them, when one character discovered that he had inadvertently given Apple the right to surgically transform him into a “product that is part human and part centipede, and part Web browser and part e-mailing device.” In the real world, there has been more discussion of what users could be risking than concrete examples of problems. Much attention has been centered on privacy concerns and the confusing aspects of companies’ privacy policies.
Professional photographers in particular have worried about their work being distributed in ways they would not approve. Protests over changes to Facebook’s terms of service in 2009, which seemed to give it rights to users’ content even if they discontinued their accounts, caused the company to change its copyright language.
The Free Software Foundation, a digital rights group, recently raised concerns over Nintendo’s 3DS, a hand-held gaming device that can take photos. In the terms of service, Nintendo claims the right to use content from its customers’ devices in a variety of ways, including marketing materials. In a statement, Nintendo said that it did not gain access to user content without permission, and that its terms of service were “consistent with industry norms.”
The agreement between Twitpic and World Entertainment News, said Dan Bailey, a professional photographer from Alaska, provided a solid example of what people have been worried about.
“The agreements always make people nervous, but nothing was done with them,” Mr. Bailey said. “But for a company like Twitpic to come along and say that they can sell your photos, that’s unreasonable.”
Twitpic did not respond to multiple requests for comment, and neither company has made the details of the agreement public. Mr. Beiny said in an e-mail that the deal covered only the accounts of several hundred celebrities. He declined to comment further.
World Entertainment News forged a similar deal this year with Plixi, a smaller online photo service. In an interview with the magazine Amateur Photographer, Mr. Beiny claimed a right to all photographs uploaded to the service. He told the magazine that though World Entertainment News might try to sell “extraordinary” photographs of any kind, its primary interest was celebrities. The deal was terminated when Plixi was acquired by Lockerz, which said it was uncomfortable with the concept.
World Entertainment News would not say whether it intended to pay celebrities for their Twitpic photos or how they might opt out. A representative for “The Ellen DeGeneres Show” said that Ms. DeGeneres, a regular Twitpic user, had not been consulted about the agreement. She added that Ms. DeGeneres would stop using the service.
An alternative site, WhoSay, sprang up last year to let celebrities retain greater control of the material they post to social media sites. Twitpic’s terms of service say the site’s users retain ownership rights to the content they upload. But it also claims “a worldwide, nonexclusive, 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.” The terms do not distinguish between the rights of celebrity and noncelebrity users.
Though Twitpic is the most popular service for posting images to Twitter, several others exist, including Posterous, yfrog and Twitgoo.
Carolyn E. Wright, a lawyer who writes a blog about legal issues related to photographers, said there were significant differences among the policies of Internet services. Users simply have to read the agreements they are clicking on, she said.
“You’re acknowledging those terms of services, you’re bound by them,” Ms. Wright said. “Even if you don’t read them.”