5 ms·

Twitpic makes deal with news agency to sell users' uploaded photos

75 points by brown9-2 15y ago

ignifero 15y ago
Without the user's consent (and their share of the royalties)? Regardless of their TOS, how would that stand in a court of law?
- MichaelGG 15y ago
  The user agreed to assign all rights to the image when uploading the image. Any user suing to the contrary would have to say they didn't really agree. More interesting is when some user uploads a photo they found elsewhere, to which they don't have the copyright.
  - ignifero 15y ago
    What if there are consumer protection issues (which clearly there will be here)? The terms are not binding then. Example: The purpose of the app is different now than it was when they signed up
  - jonknee 15y ago
    Do you have to agree anything to upload? The official Twitter iOS app lets you upload photos to twitpic and I don't think you need to create an account or anything.
    - pavel_lishin 15y ago
      The agreement might be rolled into the one you agree to when you use the app.
      - smackfu 15y ago
        The agreement should be rolled into the one you agree to when you use the app. If it's not, I guess you can go after the app developer's for damages.
  - itswindy 15y ago
    I am not a lawyer but I know that a contract has to be fair and obey other laws to be valid.
    - pavel_lishin 15y ago
      How do you objectively evaluate "fair"? $0.30 cents per text isn't fair.
      - itswindy 15y ago
        You pay a lawyer $600 an hour to figure that out :)
    - cookiecaper 15y ago
      The reality is that there is generally a lot of leeway in "fair" as far as contracts go. You can definitely sign an intentionally adversarial contract and it will usually hold up. I have only known courts to nullify contracts when they specifically violate a given law; for instance, a contract where one side can kill the other side in event of breach would not be valid because it runs afoul of murder/assault laws. However, a contract where an exorbitant fee is levied upon one side in event of breach would generally be held as long as all parties were deemed capable of understanding the contract and endorsing it by their own free will (i.e., not under duress) when it was signed. IANAL, this whole post may be and probably is wrong. Please correct me.
    - hristov 15y ago
      This is a complex issue, but there is no general fairness requirement in contract law. There are some concepts that relate to fairness, such as consideration and unconscionableness, but they are not a fairness requirement, there are fairness requirements in specific narrow cases (usually in agency situations), but it would be wrong to say that in the general case a contract has to be fair to be enforced. None of this is legal advice, just broad overview for the purposes of a purely academic discussion. There are a lot of details that are omitted, so do not rely on anything said here but consult your own attorney instead.
  - elehack 15y ago
    IANAL, of course, but I looked at the TOS again and it doesn't assign the rights to TwitPic. It just grants them the (non-exclusive) rights to use & sublicense. So they can use, they can sell, but they can't go after you for doing so via other channels. It's still shady that they can resell your work in commercial channels other than the TwitPic service itself, but it's not like they obtain total control and ownership of your pictures.
gojomo 15y ago
Gentleman, fire up your photoshops. Who can get the most outrageously fake photos onto wenn.com via twitpic?
jcasman 15y ago
I'm trying to imagine a scenario where I post a pic, they sell it in one of their publications, then sue when someone else also uses it. I think it sounds ridiculous, but isn't this one of those legal scenarios were it's possible but not probable? No, I'm still not happy about the principal of it.
- pavel_lishin 15y ago
  When you say "someone else", do you mean you?
- jambo 15y ago
  Also, users don't assign copyright, they merely (if the users have actually agreed to these terms) grant TwitPic a non-exclusive license. All someone has to do to get around it is tweet @ you and get your permission to use the image instead of getting TwitPic's (or their affiliate's) permission.
  - marshray 15y ago
    Right. That suggests that the value of WENN is mainly going to be as a convenience clearinghouse for quick and easy licensing of the images. Don't post it on TwitPic unless you want it to be used by others. WENN/TwitPic may get paid but, probably no one's going to get much out of any individual image either.
jambo 15y ago
I don't think I ever agreed to a TOS. I upload using an API client.
- gojomo 15y ago
  Websites also offer 'terms' that you might never be forced to read (or actually read), but would still have some presumptive legitimacy in the absence of other customs: giving the site the right to curtail your use, or limiting your claims against the site. A court could reason, "What, did you think the service was free, with terms totally in your favor, in the absence of any other guidance?" You might be able to argue ignorance/non-assent and then have them cease some objectionable reuse; you probably couldn't ding them for big damages because you thought you retained all rights.
huntero 15y ago
Apparently the news agency is primarily interested in the photos that Twitpic's celebrity users are posting. That's going to be a severe red-flag to celebrities and word will spread quickly among them/their social media folks to switch to another service. As these popular trend-setting celebrities switch services, so will their followers. This is nothing but bad for the future of Twitpic.
antihero 15y ago
From their TOS: "All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user's content from Twitpic and upload to other sites for redistribution and dissemination. By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites. " So your images are safe(ish) for now, I think.
- makmanalp 15y ago
  World Entertainment News Network sure looks like it's affiliated with Twitpic now.
- phaylon 15y ago
  It also says However, […], 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, […] I think the "sublicensable and transferable" part is relevant here. What I found most odd was the claim to go after unauthorized uses. I would've expected that this has to be done by the copyright owner in many countries.
- ChuckMcM 15y ago
  Nah, they put it under the right to sublicense. I think this is a great move, if it kills TwitPic (which one presumes will be the outcome if WENN puts enough pictures into distribution, and DMCA-bans folks) That will help clarify what this is "worth" (since WENN will either make money on this or not) and it will help folks figure out what's what with the TOS stuff.
daimyoyo 15y ago
When the story of twitpic's TOS broke, I immediately deleted all the pictures I'd uploaded and changed to Mobypicture. It's not as good, but their TOS says in no uncertain terms "All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user." I like that. No ambiguity at all.
- dendory 15y ago
  Did the same thing, deleted all the images I uploaded to that site. There's dozens of sites out there, no point in using that one.
- potatolicious 15y ago
  This is why I use Flickr - they are similarly unambiguous about their terms of use. They even issued a statement reiterating their position when the Twitpic brouhaha broke initially.
jeffgreco 15y ago
Obviously it isn't great for users, but as somebody who licenses photos on a daily basis, this is fantastic. Trying to track down the origin of and acquire the rights to internet photos on a tight schedule is a real pain, and working with WENN is not.
rudiger 15y ago
Does Twitter do photo/video hosting yet? Why not?
- kmfrk 15y ago
  They've only got so much VC money to burn, I guess.
callmeed 15y ago
I think there is need for a Twitter image service designed for artists and journalists. Something they can brand (logo and colors) and display clear usage terms/licensing. Possibly watermarking and licensing/payment as well.
- Mazy 15y ago
  That seems to be the goal of http://whosay.com/ http://whosay.com/ ex: http://www.whosay.com/rihanna/ http://www.whosay.com/rihanna/ http://www.whosay.com/50cent http://www.whosay.com/50cent
pyrmont 15y ago
I don't see the problem with this. They host your photos for free and they want to try to make some money out of it. Sounds like a fair deal to me.
- itswindy 15y ago
  It's all fun and games until a picture makes big bucks. Then, you'll see lawsuits; I didn't read the user agreement well, didn't understand it, it's unfair, it violates [insert law of any US state]...and so on. Have you seen that CNN and the likes make it absolutely clear the intention when they seek pictures or video for live events (earthquakes of example)? Not hide it on what would page 83 of an agreement.
Painbird 15y ago
They're going to be selling a lot of photos of food and cats.
skbohra123 15y ago
What's stopping twitter itself from doing something for photo sharing ? Seems like it's a tested market, users will always prefer twitter image sharing service and there is no risk in trying this.
joshwa 15y ago
There is related lawsuit pending between a professional photographer and Agence France Presse, who stole the photographer's photos of the Haiti earthquake from TwitPic without permission, and sold them to newspapers around the world via an agreement with Getty Images. They claim that the TwitPic TOS allowed them to use (and profit) from the images, and even further, their initial filing even went so far as to say something along the lines of "well, you posted it on the internet, so that means it's in the public domain". http://copymarkblog.com/2011/05/11/twitpic-photographs-and-copyright-law/ http://copymarkblog.com/2011/05/11/twitpic-photographs-and-c... http://paidcontent.org/article/419-in-lawsuit-wire-service-afp-says-twitter-pictures-are-free-for-taking/ http://paidcontent.org/article/419-in-lawsuit-wire-service-a...

75 points by brown9-2 15y ago

Without the user's consent (and their share of the royalties)? Regardless of their TOS, how would that stand in a court of law?

MichaelGG 15y ago
The user agreed to assign all rights to the image when uploading the image. Any user suing to the contrary would have to say they didn't really agree. More interesting is when some user uploads a photo they found elsewhere, to which they don't have the copyright.
- ignifero 15y ago
  What if there are consumer protection issues (which clearly there will be here)? The terms are not binding then. Example: The purpose of the app is different now than it was when they signed up
- jonknee 15y ago
  Do you have to agree anything to upload? The official Twitter iOS app lets you upload photos to twitpic and I don't think you need to create an account or anything.
  - pavel_lishin 15y ago
    The agreement might be rolled into the one you agree to when you use the app.
    - smackfu 15y ago
      The agreement should be rolled into the one you agree to when you use the app. If it's not, I guess you can go after the app developer's for damages.
- itswindy 15y ago
  I am not a lawyer but I know that a contract has to be fair and obey other laws to be valid.
  - pavel_lishin 15y ago
    How do you objectively evaluate "fair"? $0.30 cents per text isn't fair.
    - itswindy 15y ago
      You pay a lawyer $600 an hour to figure that out :)
  - cookiecaper 15y ago
    The reality is that there is generally a lot of leeway in "fair" as far as contracts go. You can definitely sign an intentionally adversarial contract and it will usually hold up. I have only known courts to nullify contracts when they specifically violate a given law; for instance, a contract where one side can kill the other side in event of breach would not be valid because it runs afoul of murder/assault laws. However, a contract where an exorbitant fee is levied upon one side in event of breach would generally be held as long as all parties were deemed capable of understanding the contract and endorsing it by their own free will (i.e., not under duress) when it was signed. IANAL, this whole post may be and probably is wrong. Please correct me.
  - hristov 15y ago
    This is a complex issue, but there is no general fairness requirement in contract law. There are some concepts that relate to fairness, such as consideration and unconscionableness, but they are not a fairness requirement, there are fairness requirements in specific narrow cases (usually in agency situations), but it would be wrong to say that in the general case a contract has to be fair to be enforced. None of this is legal advice, just broad overview for the purposes of a purely academic discussion. There are a lot of details that are omitted, so do not rely on anything said here but consult your own attorney instead.
- elehack 15y ago
  IANAL, of course, but I looked at the TOS again and it doesn't assign the rights to TwitPic. It just grants them the (non-exclusive) rights to use & sublicense. So they can use, they can sell, but they can't go after you for doing so via other channels. It's still shady that they can resell your work in commercial channels other than the TwitPic service itself, but it's not like they obtain total control and ownership of your pictures.

gojomo 15y ago

Gentleman, fire up your photoshops. Who can get the most outrageously fake photos onto wenn.com via twitpic?

jcasman 15y ago

I'm trying to imagine a scenario where I post a pic, they sell it in one of their publications, then sue when someone else also uses it. I think it sounds ridiculous, but isn't this one of those legal scenarios were it's possible but not probable? No, I'm still not happy about the principal of it.

pavel_lishin 15y ago
When you say "someone else", do you mean you?
jambo 15y ago
Also, users don't assign copyright, they merely (if the users have actually agreed to these terms) grant TwitPic a non-exclusive license. All someone has to do to get around it is tweet @ you and get your permission to use the image instead of getting TwitPic's (or their affiliate's) permission.
- marshray 15y ago
  Right. That suggests that the value of WENN is mainly going to be as a convenience clearinghouse for quick and easy licensing of the images. Don't post it on TwitPic unless you want it to be used by others. WENN/TwitPic may get paid but, probably no one's going to get much out of any individual image either.

jambo 15y ago

I don't think I ever agreed to a TOS. I upload using an API client.

gojomo 15y ago
Websites also offer 'terms' that you might never be forced to read (or actually read), but would still have some presumptive legitimacy in the absence of other customs: giving the site the right to curtail your use, or limiting your claims against the site. A court could reason, "What, did you think the service was free, with terms totally in your favor, in the absence of any other guidance?" You might be able to argue ignorance/non-assent and then have them cease some objectionable reuse; you probably couldn't ding them for big damages because you thought you retained all rights.

huntero 15y ago

Apparently the news agency is primarily interested in the photos that Twitpic's celebrity users are posting. That's going to be a severe red-flag to celebrities and word will spread quickly among them/their social media folks to switch to another service. As these popular trend-setting celebrities switch services, so will their followers. This is nothing but bad for the future of Twitpic.

antihero 15y ago

From their TOS: "All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user's content from Twitpic and upload to other sites for redistribution and dissemination. By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites. " So your images are safe(ish) for now, I think.

makmanalp 15y ago
World Entertainment News Network sure looks like it's affiliated with Twitpic now.
phaylon 15y ago
It also says However, […], 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, […] I think the "sublicensable and transferable" part is relevant here. What I found most odd was the claim to go after unauthorized uses. I would've expected that this has to be done by the copyright owner in many countries.
ChuckMcM 15y ago
Nah, they put it under the right to sublicense. I think this is a great move, if it kills TwitPic (which one presumes will be the outcome if WENN puts enough pictures into distribution, and DMCA-bans folks) That will help clarify what this is "worth" (since WENN will either make money on this or not) and it will help folks figure out what's what with the TOS stuff.

daimyoyo 15y ago

When the story of twitpic's TOS broke, I immediately deleted all the pictures I'd uploaded and changed to Mobypicture. It's not as good, but their TOS says in no uncertain terms "All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user." I like that. No ambiguity at all.

dendory 15y ago
Did the same thing, deleted all the images I uploaded to that site. There's dozens of sites out there, no point in using that one.
potatolicious 15y ago
This is why I use Flickr - they are similarly unambiguous about their terms of use. They even issued a statement reiterating their position when the Twitpic brouhaha broke initially.

jeffgreco 15y ago

Obviously it isn't great for users, but as somebody who licenses photos on a daily basis, this is fantastic. Trying to track down the origin of and acquire the rights to internet photos on a tight schedule is a real pain, and working with WENN is not.

rudiger 15y ago

Does Twitter do photo/video hosting yet? Why not?

kmfrk 15y ago
They've only got so much VC money to burn, I guess.

callmeed 15y ago

I think there is need for a Twitter image service designed for artists and journalists. Something they can brand (logo and colors) and display clear usage terms/licensing. Possibly watermarking and licensing/payment as well.

Mazy 15y ago
That seems to be the goal of http://whosay.com/ http://whosay.com/ ex: http://www.whosay.com/rihanna/ http://www.whosay.com/rihanna/ http://www.whosay.com/50cent http://www.whosay.com/50cent

pyrmont 15y ago

I don't see the problem with this. They host your photos for free and they want to try to make some money out of it. Sounds like a fair deal to me.

itswindy 15y ago
It's all fun and games until a picture makes big bucks. Then, you'll see lawsuits; I didn't read the user agreement well, didn't understand it, it's unfair, it violates [insert law of any US state]...and so on. Have you seen that CNN and the likes make it absolutely clear the intention when they seek pictures or video for live events (earthquakes of example)? Not hide it on what would page 83 of an agreement.

Painbird 15y ago

They're going to be selling a lot of photos of food and cats.

skbohra123 15y ago

What's stopping twitter itself from doing something for photo sharing ? Seems like it's a tested market, users will always prefer twitter image sharing service and there is no risk in trying this.

joshwa 15y ago

There is related lawsuit pending between a professional photographer and Agence France Presse, who stole the photographer's photos of the Haiti earthquake from TwitPic without permission, and sold them to newspapers around the world via an agreement with Getty Images. They claim that the TwitPic TOS allowed them to use (and profit) from the images, and even further, their initial filing even went so far as to say something along the lines of "well, you posted it on the internet, so that means it's in the public domain". http://copymarkblog.com/2011/05/11/twitpic-photographs-and-copyright-law/ http://copymarkblog.com/2011/05/11/twitpic-photographs-and-c... http://paidcontent.org/article/419-in-lawsuit-wire-service-afp-says-twitter-pictures-are-free-for-taking/ http://paidcontent.org/article/419-in-lawsuit-wire-service-a...