One of the most underhanded tactics sweeping the online and publishing world is the hijacking of photo rights through inequitable terms buried in the fine print of legalese for contests and web sites. The perpetrators will no doubt surprise you, they include the likes of Facebook, National Geographic + PDN, Popular Photo, and more.
This issue is not a new one and has reared its ugly head in the past on other photo sharing sites, but now this tactic is becoming increasingly common with major players. Offending words such as perpetual, royalty-free license and irrevocable are being introduced to hijack the rights to photographs of well intended photographers looking to play the odds to have their work recognized in a contest or just to simply share with friends.
So what does this mean? It means companies, that used to pay for quality photography to fill the pages of their publications, are now taking advantage of well intentioned photographers to develop royalty-free photo libraries they now can tap to fill the pages of their publication or place in promotional advertisements.
HFM U.S. Rights to Materials Provided by Users
By posting messages, uploading files, inputting data or engaging in any other form of communication (individually or collectively â€œCommunicationsâ€) to the HFM U.S. Web Site, you grant to HFM U.S. a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit such Communications and any ideas or original materials contained in such Communications, in all media now known or hereafter developed. This grant shall include the right to exploit any and all proprietary rights in such Communications including, without limitation, any and all rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. You waive all rights you may have to inspect and/or approve of any use by HFM U.S. of any material or idea submitted by you in any Communications. You waive all rights to any claim against HFM U.S. for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with such Communications. You agree and understand that HFM U.S. is under no obligation to use any material or ideas submitted by you in any Communications in any way whatsoever, and is not responsible for maintaining, and may delete at any time, any of your Communications. More…
The odd thing about this contest was that there were not specific terms tied to the contest so I wrote Popular Photography to get clarification. The response to my inquiry was:
“ This came together at the 11th hour so no specific terms and conditions were written, so the general site T&C will apply. We are not appropriating the copyright of submitted content and will make our best effort to obtain photographer permission before publishing any of the photographs.“
The latest contest to employ this tactic is the National Geographic Traveler and PDN “The Great Outdoors Photo Contest“. What’s so surprising about this is PDN’s association with it. PDN normally is quite the advocate of photographer’s rights. The tactic to grab photo rights is contrary to the pro-photographers rights stance that PDN normally takes.
An excerpt from the original fine print of this contest:
“Entries may be published by Sponsors and/or their designees, licensees or affiliates (the “Authorized Parties”) in magazines, on websites, or in any other medium, at Authorized Parties’ discretion. By participating, all entrants grant a license in the Entries to the Authorized Parties, and acknowledge that any Authorized Party may use the entries and a name credit in any media now or hereafter known, without restriction, including commercially using the entries to the fullest extent possible worldwide in perpetuity. Authorized Parties will not be required to pay any additional consideration or seek any additional approval in connection with such use.”
After a blog entry by the Photo Attorney and an email campaign by disgusted photographers the contest rules were revised. See Outdoors Photo Contest Rules Change – GREAT!
You grant to National Geographic Society and its subsidiaries and licensees (“NGS”) the following rights: a royalty-free, worldwide, perpetual license to display, distribute, reproduce and create derivatives of the Photograph, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional and trade uses in connection with NGS Products. An NGS Product is defined as “a product of NGS, a corporate subsidiary, affiliate, joint venturer or licensee of NGS, in any language, which is associated with an NGS trademark and over which NGS has Editorial Control.” For the purposes of this Agreement, “Editorial Control” means the right to review, consult regarding, formulate standards for, or to exercise a veto over the appearance, text, use, or promotion of the product. This license includes the nonexclusive right to make the Photograph available to third parties (i) for library or other research uses through microfiche, microfilm, or any other archival storage and retrieval form, including but not limited to electronic databases and document delivery services; and (ii) for distribution in connection with an NGS press conference or press release. More…
“By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.” More…
[tags]photography, photo, rights, PDN, National Geographic, Facebook, social media, Popular Photography, contest, The Great Outdoors Photo Contest, Are You the Next Great Photographer? [/tags]