May 10, 2011
Twitpic Modifies Terms and Claims Exclusive Rights to Distribute Photos Uploaded to Twitpic
[Post by Venkat Balasubramani]
I posted about the dispute between a photographer and Agence France-Presse over images AFP allegedly downloaded via Twitpic and used without permission. AFP argued that the license terms of Twitter or Twitpic authorized its use of the photos in question. A court rejected that argument. Twitpic has now modified its user agreement to address some of the issues raised by the dispute. The revised terms which were modified on May 4, 2011 would not alter the result between AFP and Morel, but they contain some interesting tidbits. However, the terms are fairly confusing and do not offer much certainty for users or for Twitpic.
Twitpic purports to be the sole point of distribution for photos uploaded to Twitpic: The revised Twitpic terms state that users who upload content:
may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.
So this means that if you upload content to Twitpic, you can't license it to third parties?
Use of content within the ecosystem: If you "publish" content uploaded to Twitpic for personal and noncommercial purposes, "you are required to link back to the original content page on Twitpic and attribute credit to Twitpic as the source where you have taken the content." In order to publish content for any commercial purpose or for distribution:
beyond the acceptable Twitter 'retweet' which links back to the original content page on Twitpic . . . you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.
The terms also provide that "[n]o user may grant a third party permission to copy or save content that has been uploaded to Twitpic." [Does this include the user who originally uploaded the content?]
Retention of ownership: After saying that you will not be able to control the distribution of content uploaded to Twitpic, the terms say that "[y]ou retain all ownership rights to Content uploaded to Twitpic," but grant Twitpic a broad, non-exclusive [??] license to exploit the content "in connection with the [Twitpic] service and Twitpic's (and its successors' and affiliates') business . . . "
I'm confused by these terms. On the one hand, Twitpic looks like it wants to be the exclusive point of distribution for content uploaded to Twitpic. On the other hand, it is telling users that they retain "all ownership rights" in photos they upload to Twitpic. To top it all off, the terms state that if you delete any content you upload to Twitpic, the licenses granted to Twitpic terminate.
People have often raised the alarm over ownership of content posted to networks and services. Much of this seemed like paranoia, based on the broad license any intermediary or service would want granted to it. In this instance, it looks like Twitpic is making a power grab, albeit a potentially ineffectual one.
This terms were confusing enough to make me think twice about uploading anything other than throwaway photos to the service, at least until it cleans up it terms.
Update: After initially revising the terms on the May 4, 2011, Twitpic revised its terms again on May 10, 2011, and removed the paragraph which said users could not grant permission "to retrieve from Twitpic" photos from distribution. (See "Your content, your copyrights" (TwitPic Blog); "Twitpic changes its terms of service".) It’s clunky to say the least, but this language arguably applied only to distribution of photos that are "retrieved" from Twitpic. Also, Twitpic looks like it’s distributing photos uploaded to its service. World Entertainment News Network recently announced (after the second round of changes to Twitpic's terms) that WENN entered into a deal with Twitpic which "will give WENN exclusive rights to sell images posted on the TwitPic service." (See British Journal of Photography (May 11, 2011): "TwitPic signs controversial deal with celebrity photo agency.")
Related: "Stars Gain Control of Online Images" (NYT):
While most people on Twitter use a service like TwitPic, Yfrog or Plixi to share photos with their friends and followers, for celebrities, these services can come with strings attached, as they gain ownership rights to uploaded photos and can sell ads alongside them. A company called WhoSay — a little-known start-up with a clientele that is anything but little known — offers similar services, but grants ownership of the images to the stars themselves.
Court Rejects Agence France-Presse's Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service
(h/t) Oliver Platz