This rather long, rambling piece has been written in response to a couple of recent scares over photo licencing, involving Twitpic a couple of months ago, and more recently Google+, that new social networking site.
The rise of social networking, combined with modern technology, has made it easy and commonplace for people to take pictures or videos and upload them to the internet to share with their friends and the rest of the world. Everyday life is documented more thoroughly than at any time in history. For people who treat those photos as a document of their life, and of no particular intrinsic value beyond that, it’s a bit of fun – your friends and relatives get to see your photos on their own terms without having to sit through (sometimes agonising) sessions looking at photo books.
Most people wouldn’t think twice about uploading a picture to Twitter or Facebook – possibly seconds after they’ve taken it, as most mobile phones now have both a camera and access to the internet in one device.
Do they know, or care, what happens to those photographs once they’ve posted them? In most cases, probably only if the photograph is sufficiently embarrassing, or reveals some aspect of their lives that they would rather keep private.
Here comes the big question – and it doesn’t have an easy answer.
Should they care?
I like to put my pictures up on the web, for people to look at. It gives me some satisfaction when people comment on them, or link to them from their websites. It motivates me to put the time and effort into processing my pictures – for without an audience, what’s the point?
Luckily, there are loads of websites out there that allow me to do this.
Photo websites, whether part of a wider social networking system or not, all do pretty much the same thing. They take a bunch of large pictures that you’ve uploaded, quite often too big to show on a single web page, and allow you to organise them in some way that makes it easy for people to view. They all have to reduce the size of your images to make them fit on the page. Many of them will crop your picture so that you can see a nice neat set of square boxes when viewing a picture collection. Some of them now have editing facilities built right into the website. Some of them have mobile apps or integrate with other websites, and so they need to send your photos to another place.
Every time they crop or resize your image, they require permission to do so. Every time they send your image to another site, or to a mobile app, they are technically copying or distributing your image, so they need your permission.
Here’s where the problem can set in.
In order to get the right permissions to do all these things, most of these sites have a set of terms and conditions that gives them a royalty-free right to alter your pictures and to display them anywhere they like, within reason. This makes sense, up to a point – Facebook isn’t going to ring you up and ask you for permission every time someone views the website, or wants to look at your picture through their mobile app. You wouldn’t want them to, either. So, they create this big sweeping set of terms which you sign up to when you join the site, that lets them do all these things.
Flickr has always been the vehicle of choice for me, and their terms and conditions seem pretty reasonable (I’ve chopped this quite a lot to show just what I believe to be the relevant bits – please see the original site for the full document which might have different legal interpretations):
With respect to Content […] that consists of photos or other graphics you elect to post to any other publicly accessible area of the Services, you grant Yahoo! a world-wide, royalty free and non-exclusive licence to reproduce, modify, adapt and publish such [….] photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Services. This licence exists only for as long as you elect to continue to include such Content on the Services and shall be terminated at the time you delete such Content from the Services.
There’s a key bit there – if I remove the photo, they no longer have any rights over it. Perhaps surprisingly, given how much people criticise it over privacy concerns, Facebook’s conditions seem similar:
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”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
Compare this with Google’s terms and conditions for content:
[…] By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
I find the inclusion of the words “perpetual” and “irrevocable” in there quite disturbing. I’m not a legal expert in any way, but the fact that it then says “may be revoked for certain services” seems a little odd – how can it be irrevocable, yet may be revoked?
I tried adding Twitpic’s ToS in here as well, for comparison, but frankly, I don’t understand it! I’ll leave you in the more capable hands of this post.
So, what’s the actual problem?
Well, you might care a bit if someone could sell your photos to a third party without your permission, or without even your knowledge. You might care also, if it stops you from selling your own photos.
I’m an amateur photographer. I’d like to think I’m vaguely good enough that I could possibly sell one or two of my photos, but I’m not stupid enough to think I’m good enough to make a living out of it. For me, photography is just a stress-free hobby, something outside of work, and I’m happy about that. I’m always going to be able to make more money writing software for a living, (or managing other people who write software for a living). However, if someone wanted to pay me for one of my pictures, I wouldn’t turn them down – and I’m egotistical enough to think that someday maybe they might want to do so.
As a result, I’ve spent a bit of time learning about copyright as it applies to photography, and how photographs get licenced for use by third parties.
I’ve recently been doing some digging about how I could go about selling my photos. I’ve immediately realised that the creative commons by-nc-sa licence that I use for my Flickr photos creates some problems straight out of the box. It means that there’s no way to provide an exclusive licence for those photos, because even if I revoke the creative commons access, people
may be using them (legitimately) from before. So, it greatly limits what I can do with the pictures. I can still sell them, for what’s generally known as “editorial” purposes – here, exclusivity isn’t a requirement, so it doesn’t matter that the same picture might be used elsewhere.
Note: it isnt my use of Flickr that’s the problem, just my choice of licence. However, with Google’s conditions as show above, I’d be really unsure where I stood if I’d uploaded those pictures to a Google site such as Google+, their new social networking tool. Even if I had reserved all other rights on my pictures. If Google really does have a perpetual and irrevocable license, then I can never sell an exclusive licence to any of those pictures.
I understand that these sites have to cover themselves – I understand they need the rights to display the images on the website (which is, after all, the whole point) – and they need some freedom to chop and change them a bit to make them fit, or to send them to mobile apps, or even via APIs to other websites. I don’t understand why they need a perpetual licence, however.
Of course, it’s perfectly possible there is some exception in the Google+ ToS that I’m not aware of which removes this requirement, but if not, I’d be a bit wary of submitting “serious” photos to Google+ for the time being.
What am I trying to say here? Well, if your photos are just throwaway snaps of your friends getting drunk, the only thing you have to worry about is whether they’ll become famous in 10 years time and those photos could be used against them. Not a big concern for most people! However, if, like me, you have some intention of selling your pictures, it’s worth being really careful how you licence them, and which sites you give them to.
Even if you fall into the prior group, it’s always worth thinking about whether you want someone else to have a perpetual, irrevocable right to use your pictures.