Twitpic And Other Photo-Sharing Sites Can Sell Your Images If They Want

Indignation spread through the Twittersphere when it was discovered that popular photo sharing service Twitpic was seemingly forbidding users from selling or distributing their own pictures. But Twitpic is not alone. Other photo services also exercise surprising controls over pictures uploaded by users, and most sites claim the right to use or distribute pictures without consent.

The Twitpic Terms of Service at that time (now changed) read:

You 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.

After an uproar, Twitpic changed the conditions to clarify that users retain ownership of pictures they upload, but that Twitpic retains the right to use and distribute the content as the company sees fit.

The Terms of Service were updated thus:

You retain all ownership rights to Content uploaded to Twitpic. However, 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.

The news agency WENN just signed a deal with Twitpic to purchase celebrity photos uploaded to the site.

Other web-based photo hubs are taking a similar approach. As The Next Web discovered, photo-sharing apps including Color, yFrog, Instagram, and Lockerz have Terms of Service that resemble Twitpic's. In fact, some are harsher than Twitpic.

Lockerz' Terms of Service states that the company owns or licenses your content outright:

This Website and the content and all intellectual property rights included in or associated with the Website, including, but not limited to patents, copyrights, trademarks, service marks, logos and Decalz™ (collectively “Content”), are owned or licensed by us, and all right, title and interest in and to the Website and Content remains with us or our licensors, as applicable.

In the case of licensing, users "automatically grant Lockerz a perpetual, worldwide, unlimited, irrevocable, transferable, assignable, sublicenseable, royalty–free license to use the Submissions, and exercise all copyright, publicity and other rights with respect to any such Submissions."

According to The Next Web, the only exception was MobyPicture. Its ToS reads:

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.

But that is not the standard. While some users may not mind if the photo-sharing services they use are reproducing their images or selling them for a profit, it's likely more will care that some services retain copyrights to their pictures. Having the copyright to these pictures means that the sites have an exclusive right to reproduce, distribute, perform, display, or license the images for their own profit. As several of these sites -- Instagram, in addition to Twitpic -- have changed their Terms of Service in response to user anger, it's completely possible that others, too, are willing to bend.

Comments

[Jerry Thompson]

01:02 AM on 05/27/2011

Managing a site in the photo sharing space, we think its extremely unfair and inappropriate for a site to include any language in which they have the ability to license your photos to 3rd parties without your consent. Photo sharing sites make their revenue on advertisement. There's no reason why should be obtaining that. I wrote a blog post about it at http://bit.ly/lE3v8i

[delfry]

12:32 PM on 05/14/2011

Eye opening post. Had me worried about my Flickr account but an earlier commenter posted a link to the Flickr response to this article. Flickr does use your images but only to promote Flickr and does not sell your images. All commercial rights to the images on Flickr remain with the up-loader unless they choose not to protect their images. The default setting is full copyright protection so the up-loader has to consciously make a decision to not protect their images.

[Carrie Perman]

12:30 PM on 05/13/2011

This is a pretty hefty price to pay for the privilege to show one's work (art, crafts, photography, etc) on the internet for the sake of exposure and publicity when one can not afford to do so through an agent, a private domain name, or literally opening one's own gallery.

I'll still post my #worksinprogress on Twitpic, but you will have to go to my site on Tripod to see the finished product. http://perclop.tripod.com/

[bigkendallas]

09:12 AM on 05/13/2011

I've learned alog time ago to not expect anything for free. These site owners have to pay fees for servers and bandwith...so at some point some kind of money has to come in.

This is why it's best to be cautious of "free" sites, I've learned the art of reading the "legaleze" in the terms and conditions.

In the end, they aren't free, the cost is deducted from something other than money....possible commercial use of a person's images can be the cost (some of the sites are used by professional photographers and artists).

[1849]

08:46 PM on 05/12/2011

Posted on Flickr, TOS: http://tinyurl.com/3o7hb7y

[delfry]

12:25 PM on 05/14/2011

Thanks for posting this. I was getting a little worried.

[majestic7usa]

07:25 PM on 05/12/2011

Well, I have HUNDREDS of Pictures, That TwitPic or any other site That A C T S, Like This WILL NOT GET O R EVER SEE!!

[tcburch]

06:11 PM on 05/12/2011

Give this some thought...online file services...just say no!

[sevnwolves]

04:45 PM on 05/12/2011

I once read a TOS agreement for some software I bought that included something like this: "email me for a special add-on deal for free....yadda yadda", so I did. The creator of the software sent me the freebie, and also mentioned that as of that time, after selling hundreds of the exact same package, I was the only one who apparently read the TOS. Don't expect people to read anything.
You can expect the exact same crap from local television news stations also - upload a video or picture of a news event, and it belongs to them, lock, stock and barrel. They will own all rights and may sell it while you get nada. Read the TOS!

[jjessi83]

03:33 PM on 05/12/2011

Thats why i have learned,which isnt rocket science, i know.Dont put anything, anywhere on the internet,you dont wont seen

[sean0008]

02:20 PM on 05/12/2011

Pay photo sharing sites like Smugmug and Zenfolio do not do this. You retain all rights to your own photos. They do cost money to use (A basic Smugmug account is $40 a year), but in my opinion the features and protections (you can control access to individual galleries and photos) make the price more than worthwhile.

[JeffJeckyll]

02:14 PM on 05/12/2011

Is the internet still around?

[majestic7usa]

07:26 PM on 05/12/2011

NO As you know, AL G O R E, Invented the Internet in the 80's... A N D... AL Decided to shut it down.. The Internet is C L O S E D....

[Aviator1]

12:55 PM on 05/12/2011

Since were on the tech subject: Facebook Loses Much Face In Secret Smear On Google. Facebook secretly hired a PR firm to plant negative stories about Google. Burson-Marsteller, a top public-relations firm offered to help an influential blogger wrote a Google-bashing op-ed, which it promised it could place in outlets like The Washington Post, Politico, and The Huffington Post. No better place to tell lies than on Liberal websites. Proof positive.

[fanetiks]

07:49 PM on 05/12/2011

I am flagging that as abusive. Not only is it OFF-TOPIC, but it is also slanderous. What someone SAYS he can do is no proof whatsoever that HuffPost or any other entity named will play along.

[JayMaeBee]

12:06 PM on 05/12/2011

Everyone wants to recieve, no one wants to give.
The internet will set us FREE if we let it.

[dblueII]

04:21 PM on 05/12/2011

Or it will enslave us... if we let it.

[dblueII]

04:24 PM on 05/12/2011

Seriously, do you trust mark Zuckerburg with your FREEdom? I don't

[7583384]

09:51 AM on 05/12/2011

Right. Everybody's making a big deal about this. Do none of you guys read the ToS before you sign up for these sites? Apparently not. Almost (read: most) sites have these same lines in their terms, including YouTube.

"For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube 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 YouTube'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.

-YouTube Terms of Service.

You retain all ownership rights to Content uploaded to Twitpic. However, 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.

-TwitPic Terms of Service.

[fanetiks]

07:53 PM on 05/12/2011

The key term, which courts are likely to land on like a ton of bricks, are "in connection with the Service's business". Users reasonably believe that means hosting fotos, not selling other people's fotos. We assume that this means they can use a foto as an example of the kinds of fotos that appear on their service, for publicizing their foto-storage and -sharing services. Any other use is CONCEALED and is likely to be struck down by the courts. I am, however, going to check out Picasa's Terms of Service in this regard. My fotos there are low-resolution, and I retain all rights to the high-rez originals NOT on Picasa. But Picasa was, curiously, not mentioned in this article.

[artist-53]

08:23 AM on 05/12/2011

What if someone loads a pic that they didn't take? The original owner may not even know it, so where does that place the rights?

[majestic7usa]

07:32 PM on 05/12/2011

Its called Plagerism

[artist-53]

10:45 PM on 05/12/2011

On the other hand you've got people screaming copyright laws on the side of big corps, but corps can assume copyrights on a graphic that the artist may not be aware that it was downloaded then up loaded by a third party.

I see major flaws and court time with this.