Are You Signing Away Your Digital Rights?

This past week, I attended the Association of Personal Photo Organizer’s 4th annual conference in Anaheim, California, and there was one topic that stood out in my mind as a perfect blog post: your digital rights as a consumer. My colleagues Mary and Jackie made some very important points about how we should all pay more attention to what we are putting online and why. This is actually a topic that a lot of people don’t think about, or even don’t look into very often. I mean, who really reads their terms of service contract, right? I know I’m guilty of skipping through it on more than one occasion. But perhaps we should care?

 

What Are Digital Rights?

Every photo service or online cloud service you sign-up with will have a terms of service agreement. Usually, you have to put a little checkmark in a box and agree that you will use the service according to their rules. But who really reads it? Me – starting right now, and I think you should too. It’s extremely important that you look into what you’re really giving them permission to do, so let’s get to the bottom of this!

 

Ownership of Your Content

Let’s Start with the Basics – Copyright. Who owns the copyright to a photo? Well, in most cases, it’s the creator (unless it’s a work for hire, or copyright has been released in writing). That generally means the photographer who took it, no matter the subject in the photo itself. As we were in Anaheim, my colleague gave a great example with Disney. If you sign up for their PhotoPass Service, you can simply hand your PhotoPass card to any official photographer in the park, and they will snap your picture. You are then able to view and download all of your photos after the fact (in one handy account).

As the designated family photographer, I rarely get to actually be in the photos, so I have to compliment Disney on their ingenuity. It’s brilliant. It’s a cash cow for them, and an extremely convenient service for their guests. Now, I love Disney as a company, but I don’t love their terms of service agreement. Let’s take a look at it:

 

1. Online Storage. You have to download all photos within 45 days, or they will expire:

Quoted from The Walt Disney Company’s PhotoPass Terms of Service Agreement:

Disney does not offer options for permanent storing of photos or other digital content. Expired photos and other digital content will be deleted from the system.

They do make this clear up front and it makes perfect sense considering the sheer volume of visitors they have in the parks, so I don’t raise my eyebrows to much at this statement. You can purchase an extension, but only for up until 60 days. In other words, download the photos ASAP. But no big deal. Moving on.

 

2. Copyright & Licensing. This is the part I’m concerned about, in all honesty. Disney photographers actually took the photo, which means they own the copyright. It’s my educated guess that Disney has a ‘work-for-hire’ deal with these photographers, so that they own the photo. In any case, it’s not your photo, and the copyright holder can do what they want with it. Disney’s policy on this also extends to their online world. If you post something on one of their sites, they will be able to use it however they please. Look what you are giving them permission to do:

Quoted from The Walt Disney Company’s Terms of Service Agreement:

We do not claim ownership to your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Disney Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity.

In other words, they can do anything with it, including selling it, copying it, or making a movie out of it. Use your imagination. They don’t have to pay you, credit you, or even let you know about it. Yikes! Makes you think, doesn’t it? Because this policy is sneakily hidden in their global terms of service agreement, and nowhere near the PhotoPass FAQs, it’s not easy to come across, and it’s a great example of how you might get the rug pulled out from underneath you without even realizing it.

Copyright is a complex topic, but if you’re unsure of who owns a photo, assume that it’s most likely the person who took it. With companies as big as Disney, you can bet your money that they cast a pretty wide net. Caution advised, especially if you have children.

What if you really do own your copyright?

Who will own it once it’s uploaded to an online service? Are you transferring the copyright by uploading your images? In most cases, no, but you may be striking a licensing deal without realizing it.

Ever heard of a little company called Amazon? Well, they now have a cloud service for your photos. Here’s the deal they want you to make with them:

Quoted from Amazon’s Terms of Service Agreement:

If you do post content or submit material, and unless we indicate otherwise, you grant Amazon a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Amazon and sublicensees the right to use the name that you submit in connection with such content, if they choose.

That’s a heck of a deal for them. Not so much for you. Fortunately, a gazillion other users have probably already made the same deal with them, so the chances of them actually using your content are slim. Still… pretty scary stuff.

Google has a similar deal going on:

Quoted from Google’s Terms of Service Agreement:

Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

I was pleasantly surprised to see that you retain your copyrights when using Google. They do want the same world-wide license as all of the other services, and though it’s a little concerning that the license continues even after you delete your account, they claim it’s for a “limited purpose,” i.e. improving and developing new services. How do you feel about this? I’m slightly concerned, but taking into account that Google owns half of the internet, I doubt there’s much that can be done about it.

Now, before you yank all your photos off the internet in a panicked hysteria, it’s important to remember that you do need to grant these photo services some rights in order for them to actually store your photos. “Publishing your content” may actually just translate to storing your photos online in your account, and not necessarily exploiting you in a magazine. In many cases, rights need to be granted for them to actually create projects with your photos. Shutterfly is a great example of this. Any time you place an order with them, they need your permission to create a copy, modify, and print your photo. Without it, they would be in violation of your copyright, and you could sue them.

Case in point:

Quoted from Shutterfly’s Terms of Use Agreement:

You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the production or provision of any product or service you request or to show you how your User Submitted Materials would appear in our products or services. For example, when you place an order for a product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for production, packaging and shipment. Similarly, if you want to share a photo book with your friends and family, we will accommodate your request by making your photographs available to your friends and family to download and/or to use and create projects of their own, and to purchase products with those photographs.

This isn’t uncommon because a lot of the major photo sites also sell products. Here’s another example from Snapfish that explains this better:

Content License. In order for Snapfish to provide our services to you and your invitees, as a condition to Membership you hereby grant to Snapfish and its agents, the right to copy, display, modify, distribute, transmit, and make derivative works of your Content solely for the following purposes: (a) providing the Service to you or your invitees, (b) showing you how your Content would appear in a product or service offered by Snapfish or one of its agents or (c) improving the Service (e.g., customer support, technical support and/or vendor fulfillment). For example, we may show you a sample product, such as a mug or calendar that includes one of your images, in case you may want to purchase such an item. Likewise, we may send you images that you made at various points during your membership to remind you of your past memories.

 

 

Paid vs. Free Accounts

There is a huge difference between a paid and a free storage account, especially if it includes permanent storage. Enter my next example: Forever. Forever is one of my favorite services because of the focus they have on archiving. It’s a paid service, and therefore you have more rights than with a free service (though they have ‘free’ trial accounts now):

Quoted from Forever’s Terms of Service Agreement:

3.1 Ownership of your Content.

FOREVER enables or intends to enable you to upload, store, post, link, access, view and share information, photographs, images, graphics, videos, films, songs, sounds, audio recordings and clips, artistic works, text, writing, stories, letters, comments, posts, submissions, questions, documents, files,data, software, scripts, materials and other content (“Content”) using FOREVER Services. You retain full ownership and all of your intellectual property rights to the Content you store using FOREVER Services, and you are responsible for protecting those rights. You are responsible for your Content, including its legality and appropriateness.

You own your stuff, and as long as it’s nothing illegal, you’re fine. No third-party licensing here, BUT note what they say about your free trial account vs. your paid account:

Quoted from Forever’s Terms of Service Agreement:

FOREVER does not provide long-term preservation of Free Accounts or Free Member Content, and FOREVER reserves the right to discontinue, suspend or cancel Free Accounts at any time for any reason in its sole discretion, including, without limitation, Free Accounts that have been inactive for a period of time determined by FOREVER in its then current policies. If a Free Account is suspended or cancelled for any reason, FOREVER may permanently delete all Content associated with the Account.

Overall, Forever has a very good policy in the eyes of a consumer, IF YOU HAVE PAID, so it’s extremely important to understand that their free account does not yield the same benefits as a paid account. Your account will only adhere to this policy if paid for in full. Forever is a service to dedicated to archiving your memories, so they have no interest in owning your copyrights, or licensing anything, which is great, but do keep this in mind if you only have a trial account, and expect most other services to have a similar policy.

Modifying Terms of Service

Terms of use agreements that change without warning can be extremely annoying, but that’s how businesses protect themselves against miscommunication. In most cases, these online services DO NOT have to inform you of changes to their agreements. It’s your responsibility to stay up-to-date on everything, and that usually requires you to double check their updated terms of use agreements once in a while. But they know we won’t. Because don’t we all have better things to do than scouring the net for a new terms of use contract to compare to the old? Result? We’re stuck with the new agreement unknowingly, and by continuing to use their service, you have agreed to it. SmugMug’s agreement is great example of a wishy-washy maybe-we’ll-let-you-know-but-maybe-we-won’t-policy.

Check this out:

Quoted from SmugMug’s Terms of Service Agreement:

SmugMug reserves the right to change, modify, revise or otherwise amend any provision of these Terms of Use, and any other terms, policies or guidelines governing your use of the Services, at any time at its sole discretion by providing notice that the Terms of Use have been modified. Such notice may be provided by sending an email, or by posting a notice on the Site, or by posting the revised Terms of Use on the Site and revising the date at the top of these Terms of Use or by such other form of notice as determined by SmugMug. Your continued use of the Services, or your purchase of any Products or the Services following the posting of the revised Terms of Use or other notice will constitute your acceptance of such changes or modifications.

Basically, they will provide a notice, but it isn’t clear what form that notice will take. No matter if you see the notice or not, you are responsible for understanding the status quo. What if you woke up on day, and your account was closed and your images deleted? It’s not likely to happen, but if it did, you wouldn’t have much of a case.

And check out this oozy-doozie from Snapfish:

Quoted from Snapfish’s Terms of Service Agreement:

Snapfish may, in its sole discretion, terminate your Membership (or any part thereof) or your use of the Service, and remove and discard any Content at any time, without notice, for any reason, including: (i) conduct that violates these Terms or other policies or guidelines set forth by Snapfish elsewhere within the Service, or (ii) conduct Snapfish believes is harmful to other Snapfish users or the business of Snapfish, or (iii) failure to maintain Active Participation in the Service. You agree that we will have no liability whatsoever to you or any other party as a result of a termination of your access to our Services, the Site, to your account and/or as a result of the deletion of any information, files or materials in or related to your account.

Translation? They can delete you account at any time and for any reason. That means you could wake up one day, and your photos could be gone for something as simple as inactivity. The question then becomes: where is that line drawn? A couple of months? A year? No one seems to know. Ouch. One would only hope that you would get an email reminder before that happens.

 

Your Digital Rights in the Afterlife

The above statement from Snapfish is a scary reminder that something so silly as inactivity can permanently delete your photos, which begs the question: what if something happened to you? Who owns your content then? Who can access it, and what happens to it? In short, it depends on the service, but you may want to plan ahead and designate an account manager in the event of a tragedy. Perhaps even make your photos and memories a part of your estate planning?

Here’s a what a typical statement looks like:

Quoted from Yahoo’s Terms of Service Agreement:

No Right of Survivorship and Non-Transferability. You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

Flickr is a Yahoo Service, and is covered by this agreement, so hypothetically, if something were to happen to you, your images on Flickr could be permanently deleted once they were notified of your death. Many online services have a similar clause, so it’s a good idea to designate someone to care for your account, just in case. Forever, being the archiving service it is, actually has a policy in place for such events:

Quoted from Forever’s Terms of Service Agreement:

4.3 Preservation and control of Guaranteed Permanent Accounts. You acknowledge and agree that upon your death:

• FOREVER will preserve your Guaranteed Permanent Account and Content after your death in accordance with your Account settings, and/or as directed by your Account Managers (designated by you or by subsequent Account Managers), and you grant FOREVER full authority and rights to manage your Guaranteed Permanent Account and Content in accordance with those instructions and these Terms;

• FOREVER will permanently disable your username and password and prevent any access or use of your Permanent Account using your username or password; and if an Account Manager was not designated or no longer exists for your Permanent Account at some point in the future, FOREVER will preserve your Permanent Account and Content by applying the FOREVER Default Preservation Policy (below).

This is proof that their permanent storage guarantee is exceptional in comparison to their competitors. Well done, Forever!

Social Media Warfare

On to social media. Where to start? Well, in addition to data mining and other funny business they often engage in, many of the social media platforms can do pretty much whatever they want with all your data, including your photos.

Quoted from Facebook’s Terms of Service Agreement:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

And yes, you do have access to privacy controls etc., but it’s not as simple as that.  The Huffington Post has a very good article here that goes more in-depth on this topic and how it relates to Facebook.

So THINK about it: Are You a Consumer or a Product?

Really think about it. Why do they offer you that free service? Are they trying to sell you something, or are they trying to sell you to someone else?

I highly encourage you to read the agreement you sign when opening a new account. It may seem harmless, and in most cases, it is, but it’s never a bad idea to understand what you are accepting to make sure it’s intentional. Here are the links to the agreements of some of the major players:

1. The Walt Disney Company – Terms of Use Agreement
2. Google – Terms of Service Agreement
3. Shutterfly – Terms of Use
4. Flickr (Owned by Yahoo) – Terms of Use
5. SmugMug – Terms of Use
6. Amazon Photos & Cloud Drive – Terms of Use
7. Forever – Terms of Service

I very rarely put photos of myself and my daughter on social media or other online accounts unless they are paid accounts with tight security. My digital photo hub is a thrice-backed-up external hard drive that can withstand a lot of abuse, so I only use these services to have an online cloud version to share with my family, but I shutter to think that a lot of people may have their hub exclusively online.

What are your thoughts on this? Are you concerned about your digital rights?

 

 

PS! Since this all about legal stuff, here’s my little slice of legalese for you in a very official disclaimer: While I have a Master’s Degree in Media Management and have worked extensively with legal copyrights, I am not an attorney. The legal information in this post does not constitute legal advice, and is meant for general informational purposes only. I am not now, nor will I ever be, liable for any losses or damages related to your actions based upon the content on this blog. If you need specific legal advice about anything pertaining to copyright, licensing, transferability, terms of service, or any other related legal issue, please consult with an attorney who specializes in this subject matter and who is an expert within your jurisdiction. If you need a recommendation, I’ve got one for you….just let me know!