10.07.2011

The thing with the TOS of many Online Services

First of all: I am not a lawyer, so the coming text is just my personal opinion about this topic. If you want a decisive legal opinion about this: ask your lawyer.

There has been a lot of discussion about the newly updated TOS (Term Of Service) of Dropbox or the fineprint in Google´s TOS. You can read them here, here, here and here. Even the Washington Post commented it. Fellow Photographer Rolando Gomez makes some interesting points in his Blog, too.
The main issue discussed is the fear of loosing control over your intelectual property (that means your files) when uploading them to Dropbox or any of the others. Well, let me tell you that almost all of the Online Storage Services (specially for photographers: Flickr, Google, Picasa [same as Google as the Owner], etc. even Facebook!) do have a very similar wording in their TOS regarding the licence you provide them when uploading your data. In almost all the cases you provide them with

* worldwide,
* non-exclusive,
* royalty-free,
* sublicenseable rights to use,
* copy,
* distribute,
* prepare derivative works (such as translations or format conversions) of,
* perform,
* or publicly display the data

So... what´s all the fuzz about Dropbox updating their TOS or Google stating their TOS? Nothing new under the stars, folks.

Regarding photographers the common fear is that when uploading your pictures to this services you grant them a licence with the above mentioned rights and some photographers think that this could breach the contracts with Agencies/Customers when they had granted rights or even "kill" the revenue possibilities of a picture BEFORE offering it to the market:

If photographer grants through a sale of a picture a customer a licence to use the picture for lets say 3 years exclusively... is he still able to upload the file to Dropbox without breaching the contract? Remember: he grants the customer the exclusive licence to use the picture and by the terms he should not be able to upload the file to Dropbox, cause he would be granting Dropbox the above mentioned rights... 2 times rights-granting to different folks. Is this a legal violation of the contract?

On the other side, if you don´t grant them this specifical rights to handle your files... well, then the Online Storage Services wouldn´t be able to offer you their services. Without this rights THEY would be breaching the law and violating YOUR Intelectual Property Rights.

As stated above, I am not a lawyer but I really don´t see a problem in uploading your pictures to any of the mentioned Online Storage Services AS LONG as you keep some basic rules when handling your pictures:

- read the TOS carefully (!) before uploading your files
- when possible, mark your pictures as YOUR own pictures
- when possible put a good watermark on them
- when possible inform the viewer about the possibilities to contact you directly
- when possible state the licence form your pictures can be used or not be used
- never, ever upload the file in its original size... always use web-size for this matter

I think, if you keep an eye on this simple rules you can avoid having legal problems when showing your pictures to the world through any of the Online Storage Services. And if you´re still unsure, well then contact your lawyer or... simply don´t upload your pictures anywhere.

But, seriously, I think the advantages of this services are bigger than the possible disadvantages.

By the way: as Dropbox doesn´t offer a optical showcase for pictures, only storage... the solution for the above mentioned problem could be very easy: encrypt them!

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*UPDATE* Now I have found comments from a LAWYER about this topic, check what Denise Howell has to say about it.
*UPDATE 2* Photographer Colby Brown comments about this topic in his Blog. So does Microstock Photographer Sean Locke in his Blog.
*UPDATE 3* Photographer Jim Goldstein explains step by step why he does not think that the sky is falling down with the TOS of Social Media in his Blog.
*UPDATE 4* This is perhaps one of the most important updates about this topic, specially concerning prof. photographers working with agencies:

the big G (Getty Images) has responded on Flickr that posting pictures on G+ DOES NOT violate the terms of the Flickr Getty Contributors Contract. If you´re a Flickr Contributor of Getty you can check this info here! So, as presumed above... the sky isn´t falling down :-)

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