Online lab expects usage rights of uploaded photo's

[digitaldog]

Started as a blog post on Scott Kelby's site about Mpix Pro, new service. Someone posted the terms of usage that seems to me, utterly inappropriate for pro's. What do you folks think?

http://www.scottkelby.com/blog/2009/archives/5662#comments

You certify that you own all intellectual property rights in Your Content. You hereby grant Miller’s, our affiliates, and our partners a worldwide, irrevocable, royalty-free, nonexclusive, sub licensable license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of (i) displaying Your Content on our Site, (ii) distributing Your Content, either electronically or via other media, to users seeking to download or otherwise acquire it, and/or (iii) storing Your Content in a remote database accessible by end users, for a charge. This license shall apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.

I also looked at the terms on a site I've used in the past, Pictopia, they seem to go out of their way to say the opposite:

Information Collection and Use
Pictopia expressly disclaims any interest in or ownership of clients' and customers' images deposited on this site. Pictopia is the sole owner of the information about customers' use of this site, and we will not sell, share, or rent this information to others in ways different from what is disclosed in this statement.

[Jeremy Payne]

Insane.

I read it three times trying to figure out how I was mis-reading it ... but I don't think you and I are ...

Seems to say:  "Your stuff is now also my stuff ... Worldwide, irrevocable, sub licensable and royalty free."  Insane.

[digitaldog]

Insane.

I read it three times trying to figure out how I was mis-reading it ... but I don't think you and I are ...

Seems to say:  "Your stuff is now also my stuff ... Worldwide, irrevocable, sub licensable and royalty free."  Insane.

Further, the expert reply on the blog that really got me going was that of Jack Reznicki who knows a thing or two about these issues (he as past president of PPA and has produced a series of copyright video's and articles for NAPP).

Brian,

I’m afraid Addrew is correct. You are granting them a license to basically do as they please with your photo. They do not need anything else from you to display or use your photo. You are granting them a license.

What they basically have is most of the rights of copyright without the actual copyright. Some of the wording like “publicly preform” is a red flag to me that shows a rights grab from a lawyer. Preformance rights are clearly spelled out in your “bundle of rights” under copyright law, but really are for the proforming arts, not the visual arts. But they still ask for it.
“Derivative” works is another red flag, that means they can even take a piece of your photo and combine it with another photo and again, do as they please. I’m afraid that wording is as bad as any photo contest that transfers your rights. Having those wordings tells me the lawyers looked at the copyright laws and are effectively having you granting all those rights.

In my non-lawyer opinion, they can protect themselves as much as they need to, which they should do as any company should, but without over grabbing rights as this does.
I just went through this with a job where the client provided a model release that went beyond what was negotiatied. We helped them re-write it to both the model’s and the client’s satisfaction.

My intent isn't to necessarily pick on this one lab unless they are the rare example in their industry. Pictopia seems to be saying the opposite. What's interesting is apparently how few end users were aware of this issue. Another alarming problem for the little guy (photographers).

[Gary Brown]

Someone posted the terms of usage that seems to me, utterly inappropriate for pro's.

FWIW, I don't think it's an issue of "professionals" vs. not; even "non-professional" services don't make such rights grabs. For two examples, the Flickr terms of service say:

"Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable ... With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services."

And the Kodak Gallery terms of service? say:

"Kodak Imaging Network does not claim ownership rights in any image contained in your account. In order to enable us to display your images through the Service (for example, in slideshows and on sample merchandise) and fulfill any orders for you or others who have access to your images, you grant to Kodak Imaging Network a non-exclusive, royalty-free license to use, copy, distribute and display those images."

[digitaldog]

FWIW, I don't think it's an issue of "professionals" vs. not; even "non-professional" services don't make such rights grabs.

I totally agree! That its up on a supposedly "pro" centric lab site makes this that much more egregious. FWIW, I went to a few other "consumer" lab sites and have yet to find anything as blatant as the MPIX site.
This is from a site I've never used or heard of until I ran across a web ad on another photo site:

You certify that you have the right to use the image(s) in your artwork files.

We assume that every image has copyrights, whether the image be in digital or printed form, and we perform our duties as your printing contractor with this in mind. We do not redistribute, reprint, resell, use as samples of our work or any other activity that would require us to reproduce, either digitally or printed, your images. However, over the course of a print run, overages are common in the process of color correction, maintenance and the actual print run. We have strict policies that our employees are not allowed to use these discarded or overage posters for personal use, but we cannot guarantee the use of overages or waste for such purposes once the articles have left the premises. We use a third party recycling company that has their own policies regarding customer privacy. In the course of placing an order with Shortrunposters.com, you are using the internet for transmission. Although when you enter your payment information these transmissions are encrypted, we do not encrypt transmissions while file uploading is taking place. We cannot be liable for a third party downloading any part of a transmission. If this is of great concern to you, you may want to consider sending your files via mail or carrier.

Seems acceptable, the language in terms of what happens to printed material going to recycle seems like reasonable protection for this company.

[feppe]

While it certainly sounds like a rights grab, I think what's behind is that their lawyers wrote the text with the thought "let's grab all the rights we can get just to cover our asses in case somebody sues." I highly doubt they have any plans to start a stock agency with Mpix-uploaded pics - although the language certainly sounds like they would have the prerogative. I believe the underlying reason is so they can use uploaded photos for marketing purposes.

For example, the pro lab I use here in Holland has hundreds of mostly uncredited photos on their walls in areas accessible to customers. I'm positive they haven't asked for permission, which is unnecessary as there's a gentleman's agreement not to do anything untoward with the photos. In a more litigious society such legalese might be necessary just to ensure Mpix can show the quality of their product.

In the end, there's only one group of people here who wins: lawyers.

[digitaldog]

While it certainly sounds like a rights grab, I think what's behind is that their lawyers wrote the text with the thought "let's grab all the rights we can get just to cover our asses in case somebody sues." I highly doubt they have any plans to start a stock agency with Mpix-uploaded pics - although the language certainly sounds like they would have the prerogative.

I'm not concerned with their intent, I'm concerned with the rights granted which is unacceptable.

In the end, there's only one group of people here who wins: lawyers.

Actually no, if enough of the customers and/or the NAPP organization puts enough pressure on them to fix this language, we win.

For example, the pro lab I use here in Holland has hundreds of mostly uncredited photos on their walls in areas accessible to customers. I'm positive they haven't asked for permission

Unless you've got no other options in Labs, I know I would never use them again.

[Jeremy Payne]

While it certainly sounds like a rights grab, I think what's behind is that their lawyers wrote the text with the thought "let's grab all the rights we can get just to cover our asses in case somebody sues."

I don't give the "benefit of the doubt" in such matters - to do so with contracts and licenses is unwise in my experience.

I'm not a lawyer, but I deal with licenses and contracts all the time - and their lawyers could have easily accomplished protecting their client's position without surreptitiously assuming effective and permanent ownership of their customers' property - particularly those whose living is based on the ownership and control of that property.

[RSL]

To call an outfit like this a "service" seems a corruption of the language. Are there actually people out there stupid enough to use a "service" like this?

[feppe]

Actually no, if enough of the customers and/or the NAPP organization puts enough pressure on them to fix this language, we win.

Are you by any chance referring to the same NAPP who has "sponsored by Mpix" at the beginning of every single episode of Photoshop User TV podcast?

I'm not joking, it is NAPP themselves who has Mpix as their main sponsor.

I don't give the "benefit of the doubt" in such matters - to do so with contracts and licenses is unwise in my experience.

Hence my comment referring to a more litigious society - the lab I use is used by numerous local pros and they have production and behind-the-scenes shots from well-known TV series as well as commercial photos on their walls, but nobody seems to be offended, let alone thinking about suing.

As for Mpix, I wouldn't use their service, either, after reading that bit of legalese. I'm actually quite surprised about that, since there's a very good and thorough (American) copyright guide video on Kelbytraining, and the above NAPP comment from digitaldog.

[digitaldog]

Are you by any chance referring to the same NAPP who has "sponsored by Mpix" at the beginning of every single episode of Photoshop User TV podcast?

The very same.

[RSL]

I should have added that the term, "service" has a meaning in animal husbandry that accurately describes the relationship between this outfit and its customer.

[Eric Myrvaagnes]

I've been procrastinating for years about joining NAPP. Now I've got an excuse to wait some more. But if those of you who are members want to start a petition to get them to pressure Mpix into changing their rotten "license", I'll be happy to join just so I can sign the petition.

Thank you, Andrew, for bringing this situation to our attention.

[Ben Rubinstein]

Remeber the furor when facebook tried the same thing, they backed down fast enough but then they had a far bigger userbase complaning.

Does have to be said that those conditions are mind boggling.

[Ben Rubinstein]

Posted up threads here:

http://www.fredmiranda.com/forum/topic/797482/0#7348698

http://forum.getdpi.com/forum/showthread.p...0298#post120298

I think the more that this is spread around the sooner it will be resolved.

[digitaldog]

I've been procrastinating for years about joining NAPP. Now I've got an excuse to wait some more.

It actually appears the NAPP management is sensitive to this issue and will have discussions with the lab about this issue. I hope this is the net result. I find NAPP membership valuable but its stock in my book would skyrocket IF they can affect this change. After all, an association (of photographers or Photoshop users) should attempt to provide positive benefits for its members and even better, non members. Again, should NAPP be influential in fixing the TOC, they deserve a great deal of kudos!

[MpixPro]

Thank you to everyone for your help in bringing this error to our attention.
 
The terms and conditions mentioned were copied from our Miller's Professional Imaging website and were written for our web hosting application only. These terms should not have been included on the Mpix.com or MpixPro.com websites and have been removed.
 
Again, thank you for bringing this to our attention and for understanding our regret in this error.

[digitaldog]

Thank you to everyone for your help in bringing this error to our attention.
 The terms and conditions mentioned were copied from our Miller's Professional Imaging website and were written for our web hosting application only. These terms should not have been included on the Mpix.com or MpixPro.com websites and have been removed.
 
Again, thank you for bringing this to our attention and for understanding our regret in this error.

OK so in addition to being upset by the TOS that was copied to this new site, we should also be upset at the TOS on Millers site as well?

That this language has been removed, at least on MPIX is excellent news and one would hope Millers would follow suite. But you are to be applauded for recognizing this issue and taking such swift action!

[wolfnowl]

That this language has been removed, at least on MPIX is excellent news and one would hope Millers would follow suite. But you are to be applauded for recognizing this issue and taking such swift action!

Indeed.  They made a mistake, but it was identified and corrected.  The sound of a company that takes its customers seriously.

Mike.

[Eric Myrvaagnes]

That's good news. Now I can join NAPP in good conscience, and continue my membership in the Digital Dog Fan Club!