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Old Nov 7, 2004, 5:22 AM   #1
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Hello
I am writing with a query about the "User Agreement" of a website that has as its primary focus discussion forums and a photo/video library of images freely uploaded by users to a collection that is available for any user of visitor to view. I have a couple of queries about the legal rights of a users who uploads images to a website that has the following paragraphs relating to images in its "User Agreement"

"Please note that XXXXXXXX is building a collection of quality photographs in its photos and videos area .................................................. ........

By uploading images and messages and other material to the system you warrant that you own the rights to do so and that you grant XXXXXXX.com permanent joint copyright ownership of all materials uploaded and a permanent right for XXXXXXXX.com and its associated systems and companies to make use of them in any way they see fit, including but not limited to use in advertising and promotional material."

I have two questions that I would value comment on:

1: Although it is not mentioned anywhere in the User Agreement the site seems unwilling to allow users to delete or replace images. They seem very keen to build a very large collection, so once a user starts uploading images they must stay there. What are the rights of a user who accepted the agreement that includes the statements above, to get some or all of their images removed if they so wish?

2: Secondly, what is the situation regarding the ownership of uploaded images. The agreement talks about "permanent joint copyright ownership", If, for example I uploaded a photograph to this site, which later I attempted to sell - or was offered a fee for its use somewhere else - in a magazine or a book or a website not associated with XXXXXXXX, can this be done? Would the fee have to be shared?

Some thoughts on this would be much appreciated.

Coldman

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Old Nov 7, 2004, 7:57 PM   #2
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Note, I am not a lawyer. You don't state what state (let alone country) you are from so I have no idea what the laws are. This is just my opinion:

Well, first off, no one should never use that site. That license agreement is something I would certainly never have agreed to and is truly not a fair trade (I assume you are able to post there for free and directly link to the pictures? In other words, I assume you are getting some benefit in trade for giving them complete control over the images to do with as they wish for ever until the copyright runs out. And with no recourse or profit to yourself.)

1) The user has no right to remove the pictures. When you agreed to that User Agreement and uploaded a picture you gave them complete rights to that picture. You have no rights to delete their copy because you gave it to them. They can now do whatever they want with it. The only way you could get it deleted is if you went to court and proved that that agreement was unenforceable. Good luck, it will be expensive (see below.)

2) You have complete rights to the images. They have complete rights to the images. Either of you can sell them, grant rights to another (I think), print them on t-shirts, make posters of them. Anything. They can not limit what you do, you can't limit what they do.

I am betting that their entire business model is centered around people uploading their images and then they will sell them to advertising agencies or stock agencies and making money off them (with no money going to the photographer.) So you trying to get out of that agreement would basically kill their business model. You can try and you might succeed (if, for example, they intentionally put it into tiny print, or hid it.)

I would be very interested in what that web site is, because I would tell everyone not to use it. What they are doing is basically trying to "trick" people out of their rights to the pictures and make money off them. I say "trick" in quote because it might be legal... but I don't view it as very moral. I'm sure the most people don't realize what giving joint copyright really means and what they will use it for. Imagine a picture of you in a party suddenly appearing across the US on billboards for the rum brand you're holding. That will go over well at the office.

And it would be perfectly legal.

Eric
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Old Nov 7, 2004, 8:16 PM   #3
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Wonder what they would say if you just posted lower resolution images with a watermark in a spot that isn't removable...something like, "if you see this image other than at www.xxxxxxx.com email [email protected]."
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Old Nov 7, 2004, 10:17 PM   #4
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wow.. that sounds like a really exploitive site... :-x Can you disclose the site please? We should make sure that everyoen stays away from that site until they change their agreement...
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Old Nov 8, 2004, 3:08 AM   #5
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Sivaram Velauthapillai wrote:
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wow.. that sounds like a really exploitive site... :-x Can you disclose the site please?
I actually, joined the site without reading the User Agreement thoroughly, (a sin many commit I am sure:?and only found my way back to it to read the user Agreement when I realised I could not edit or remove the images I had already uploaded. I don't honestly think they are or mean to be exploitative, though the danger is the potential is there. What troubled me was their take it or leave it attitude to a query.

As for naming the site! Should I really tell you Siveram , then you'll NEVER read those pesky agreements!!!

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Old Nov 8, 2004, 8:57 AM   #6
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eric s wrote:
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... Imagine a picture of you in a party suddenly appearing across the US on billboards for the rum brand you're holding. That will go over well at the office.

And it would be perfectly legal.
I'm not a lawyer either, but have heard enough about model releases to doubt that they could do that. You might have released the photographer's rights, but not the photo's subject's rights.

In addition, there is the question of who would want those photos. If they are properly sized and compressed for the web, they are useless for any other purpose. If you are really worried, just put a watermark on them. That pretty much guarentees no one else will want them.

Since coldman did not provide the URL for that site, it is impossible to tell if he is serious or just another troll.
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Old Nov 8, 2004, 9:31 AM   #7
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BillDrew wrote:
Since coldman did not provide the URL for that site, it is impossible to tell if he is serious or just another troll.[/quote]

Oh yes it does exist, Bill, just copy a chunk of the quoted User Agreement into Google without the dummy addresses and it will take you straight there!

Coldman
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Old Nov 8, 2004, 11:39 AM   #8
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BillDrew has a good point. I don't know enough about the transfering of the rights of the people in the picture.

If I had the rights to take the picture and use it for marketing purposes, would I also have the rights to transfer those rights to others? I don't know, I assume that would be contract dependent.

If the picture was of me (and no one else) and I posted the picture then I bet they would have the rights to do with it as they choose. But if the picture were of a group of partying people (including me) and they used it... they'd have to have permission of everyone. The clause about assuming I have rights is probably trying to protect them from this situation, but I doubt it would stand up in court.

And yes, that sight does come up with a google search. Good point. It is:
http://www.ukexpert.co.uk/index.shtml

Eric
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Old Nov 8, 2004, 1:17 PM   #9
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Did you try asking THEM about this in their support forum?
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Old Nov 8, 2004, 1:39 PM   #10
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Mikefellh wrote:
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Did you try asking THEM about this in their support forum?
Oh Yes! My message disappeared within half an hour, and I received a private message, most of which I will not quote, which included the following three paragraphs:

" deleted that one from you having a go at how we do things...

Like everyone else here you agreed to our rules when you joined up, and our system rules are not something optional that you can later argue about or attack..

They are 100% take it or leave it, there isn't an option to agree to our rules then attempt to start public arguments that you don't like them etc etc..."

In a further reponse I ended up with:

"We will continue to operate our business exactly as we please....and we don't need or want any negative views or advice from you, thanks all the same..."

So there you are!
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