The Twitpic copyright controversy blew up a few weeks ago and I was busy and didn't have time address it. I would now like to correct for that omission.
Twitpic's new terms of service fall into the category of what I would describe as copyright-grabs-that-aren't-labeled-copyright-grabs.
The New York Times reported last week:
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 New York Times has the issue down in a nutshell.
Here's my take: Under the latest terms of service, "unauthorized use" is someone else publishing your Twitpic photos without Twitpic's permission. "Authorized use" is Twitpic selling your photos to whomever it wants for any reason whatsoever without your permission (later in this column I'll excerpt the relevant fine print).
Let me quickly backtrack through recent history.
This controversy arose a few weeks ago when users discovered that the terms of service posted on the Twitpic website had been covertly changed.
After finding itself embroiled in a fast PR fiasco (inconveniently followed by new rumors that Twitter might finally launch its own photo service), Twitpic tried to shuck and jive itself out of what had actually been going on (re: copyright grab).
Gone was the clause that had quietly been snuck in on May 4 (without any notification to users or the media):
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.
On May 11, Twitpic founder Noah Everett wrote an apology for Twitpic's "confusion" and "lack of clarity" on the company blog:
We’ve updated our terms again to be more clear and to also show that you still own your content.Our goal with Twitpic from the beginning has been to create the best way to share your photos and videos on Twitter and to always keep our user’s best interest at the forefront.
To clarify our ToS regarding ownership, you the user retain all copyrights to your photos and videos, it’s your content. Our terms state by uploading content to Twitpic you allow us to distribute that content on twitpic.com and our affiliated partners. This is standard among most user-generated content sites (including Twitter). If you delete a photo or video from Twitpic, that content is no longer viewable.
The new terms of service read in part (full terms can be read the Twitpic website):
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.
To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, 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.
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.
Reading between the lines, the most recent revisions reassure users they still retain the full ability to distribute their own photos but also (stealthily) maintains language protecting Twitpic's right to commercial appropriate users' photos as it sees fit (i.e., "affiliates," "any media formats," and "any media channels").
As a result of the copyright dispute, some people have understandably been bailing from Twitpic for other providers.
I never joined Twitpic.
Agence France Presse's bizarre attempt last year use Twitpic's original terms of service as a method of grabbing the rights to Daniel Morel's Haiti photos told me all I needed to know.
Remember to read the fine print.
See also: Don't want that picture of your cat sold to the tabloids? 5 Alternatives to Twitpic
Related: The New York Times recently profiled WhoSay, an invitation-only Creative Artists Agency operation for celebrities.
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