New social network Tsu made people wonder what would happen if you create original content, – texts, photos, videos, whatever – and share it on Tsu. Are you handing over all your rights?
Afraid of the wall of text? Scroll down to the tl;dr version and conclusions.
The fine print in the terms and conditions seemed to contradict the simple statement in the Tsu FAQ ‘The entire point of tsū is that the content you publish is yours’.How bad is it and how does Tsu compare to other social media? The rules and regulations differ depending on the kind of creative content you produce.
Photography is not only one of the older crafts, it’s also a reasonably well-organized business with established rights and licenses so let’s assume we share a photo on a social network and see what happens according to the fine print they all have. As an author, designer or video producer your case will be similar.
We will compare the two powerhouses Facebook and G+ with newcomers Ello (devoid of any commercial interest) and Tsu (as commercial as you can get). The actual terms in the fine print of all four all start with the promising statement resembling ‘It’s your content’.
Facebook offers the most human readable introduction ‘You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. Sounds nice and it’s very affirmative compared to the weaker statement by Tsu ‘We do not claim ownership of any Content that you post on or through the Service’, which is as good as identical to Ello’s wording.
Google uses the more legalize ‘You retain ownership of any intellectual property rights that you hold in that content.’ but follows it with the clear position: ‘In short, what belongs to you stays yours.’ The wording may be different, but legally these are all similar statements
Conclusion 1: All networks pay lip service to your right to your content, but as you will see, they all follow it up with very tricky disclaimers and if there is a devil, it will indeed be in the details
There is always a ‘but’ and it’s worded in similar terms. Let’s take Ello, the network which is backed by a non profit organization, has sworn never to show ads and should be friendliest on its users:
'However, when you post or transfer Content to the Ello Services, you give us a non-exclusive, royalty-free, world-wide, perpetual, transferable license to use, store, reproduce, adapt (so we can properly post your Content), distribute and publicly display your Content in order to provide the Ello Services.'
So as a photographer (your assumed role for this post) you just gave away a free license to your photo. Non-exclusive so you can still sell it to someone else, but often the commercial terms you enter when you actually manage to sell a photo are that you provide the owner an exclusive license. After posting it on Ello you are no longer in a position to offer exclusivity to any client. Certainly a bummer so you should avoid posting your photo on Ello?
Maybe you should reconsider posting on any social network if this would concern you. Facebook, Google and Tsu all state that you give them a license. Google doesn’t want to tell you if it’s exclusive or not, just ‘a worldwide license to use, host, store, reproduce, modify, create derivative works […], communicate, publish, publicly perform, publicly display and distribute such content.' Fb and Tsu are both explicit in non-exclusive. Not that it makes a difference; if you happen to have the money to take it to court every judge will agree with you that you didn’t mean to give Google exclusive rights.
Conclusion 2: you lost your own exclusive rights when you posted on any of these social networks.
In legalese we could look at the other technical terms like ‘worldwide’, ‘transferable’, perpetual, irrevocable but we won’t as there is hardly a difference between the four networks. What matters to real people are things like ‘can you get out of this license for that specific photo’. Not if the agreement in itself is irrevocable, but if you can pull your content and get your complete rights back.
Well, you can’t. Facebook is very nice and says no problem, but follows it with ‘, unless your content has been shared with others and they have not deleted it’. Good news if you’re a lousy photographer and nobody cared to share it, but otherwise you’re just as stuck as with Google's ‘This license continues even if you stop using our Services’, Ello or Tsu just use ‘perpetual license’ to make sure you will never own that content exclusively again.
Conclusion 3: your soul belongs to us and you will never get your rights back whatever you do
So these social networks now have a license on your photo / artistic work. What can they actually do with it? Unfortunately everything! Really everything: use it as promotion material, share it with other companies, change it to make it fit their requirements, offer it as part of a new service. If you look closely enough there is not that much of a difference between the four networks.
On face value the nicest of the bunch seems Google as they tell you ‘The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.’
So it’s limited, but to what? If Google wanted to start a new service ‘Ready Made Images’ if could offer your photo as part of that new business. You agreed to ‘give Google (and those we work with) a worldwide license’. So even another company could use your creative work as you already agreed to that when signing up.
Tsu asks for the broadest permissions as they claim the right to ‘reverse engineer’ your work, but you would be safe from that as it’s impossible to offer software through Tsu. More worrying are terms like ‘sell, lend, rent’ as options you gave them when posting your creative work.
However both Ello and Google also state that they have the right to distribute your content or transfer it to others (‘transferable license to use says Ello’) Ello also point to other users ‘you are agreeing to allow other Ello Services members and members of the public [..] to view, distribute and display your Content’. Google limits these rights to itself and ‘those we work with’. whoever that might be.
Facebook seems to offer the best terms here as they limit themselves to ‘to use any IP content that you post on or in connection with Facebook’ but as they earlier claimed the right to sub-license it (meaning someone else could get their rights) your legal status is still hopeless.
(Unclear at the moment: is Ello’s explicit permission that other users can distribute your work worse than the basic conditions of the other three networks? Readers in the know?)
Conclusion 4: all social networks can legally do whatever they want with your content. Sell it, change it, transfer it to another company, give it away or delete it
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Tl; dr version: after close-reading all Terms and Conditions of the four networks it’s impossible to pick a winner. Facebook, Google, Ello and Tsu offer very similar conditions which drill down to ‘It’s your content, but we can do whatever we want with it’.—————————————————————————————————–
If your business depends on having an exclusive license on your work, you should avoid all four, otherwise just pick a (combination of) network(s) which presents your creative work in the best way possible and to the audience you’re after.
Ello is a great network if you want to invest in an ad-free, clean looking platform, but it doesn't offer photographers and other creatives a large audience and the T&C is just as bad as elsewhere.
Facebook offers potentially the largest audience, but it's filters don't show all content to your fans Without spending money on promotions you're not sure it will actually reach people. Best avoided unless you only want to show it to close friends and family.
*If you want to monetize your work on social media your only option is Tsu which will pay you a share of the ad revenue based on the popularity of your work.* An interesting model for photographers looking for some income from the sharing of their work.
If you are happy with eternal fame and the gratitude of your audience G+ is currently your best choice as it already has a warm climate for creative content
Ello and Tsu are invite only networks. For Tsu just use the link tsu.co/MaxHuijgen and register. I also have a few invites for Ello left for serious photographers. PM me.
image by Frits Ahlefeldt-Laurvig / CC license 2.0 #SocMed
And how would a license look like that allows a service to store it on their servers, duplicate it across server shards for load balancing, display it to other users, share it with other users, have it reshared by others, or modify it with image filters without requiring the rights to do so?
sounds so UGLY !
i'm ready to stop using all these services but from another side how ppl will be known about my works ?
to put all the negatives to the wooden box and to way that one day after my dies someone will purchase it and after this will promote and make a big money from ?
which way is the RIGHT one ? +Max Huijgen
you want me to write one? +Rachel Blum Could be much, much more limited.
+Victor Bezrukov, post nothing but links.
Some of these things are logical and absolutely necessary. I mean, how can you post a photo without granting a license to the network to do what they do as a service provider?
Other things, like commercial rights are more tricky.
Big question is: how does this apply when you do not post photos to a network, but embed or link? In principle, the TOS do not apply in this case.
Ask +Thomas Hawk or the even more outspoken +Trey Ratcliff who both strongly believe in sharing as a business model afaik. +Victor Bezrukov
Tsu will also have you pay to promote your content, check their FAQ…
Yeah, but you can't get your money out of Tsu until you've accumulated at least $100. Frankly, Tsu reminds me of a scam aimed at bloggers called Bubblews (http://ajwalton.com/the-ultimate-bubblews-review-the-good-bad-ugly/).
Only if you want to do so +Markos Giannopoulos Not to be seen by friends and followers like fb apparently expects.
+Matthew Graybosch Facebook and Google don't like links to another sources and punish us by not exposing to the public..
+Max Huijgen it also "optional" on Facebook.
Have you confirmed that all your followers see every single post of yours on Tsu? If yes, it's going to be extremely noisy very soon.
Repeat after me, +Victor Bezrukov: Facebook can go fuck themselves. If you aren't bound by contractual obligation to a publisher, why do you even have a Facebook account? That site has peaked.
As for Google: my last comment was a quick jab to get your attention since I didn't have time to go into detail.
You should be focusing on your own web presence. You should have your own website, and your content should be there. Link to your content on Google+, but provide excerpts and use big flashy pictures to get people's attention since Google privileges images and video over text.
Nope +Markos Giannopoulos Tsu is in such a flux that it's hard to say anything definite at the moment.
+Matthew Graybosch i have my own site and said these word long time ago.. looks like we are not too familiar each other.
even when you have your OWN site with absolutely interesting content the only way to bring it to the people is to post on Social media sites and they don't like this idea that you have your OWN content. so we have a loop.
about "repeat after me" please allow me have my own opinion, thanks
+Max Huijgen please do – I'm honestly curious.
You could always share cropped/edited versions of your work for getting attention, and retain the full-sized, unedited (yet still processed) versions for any exclusive licenses you might want to sell.
cropped is an insult to your own work. Low res? I'm not that sure you can still sell an exclusive licence for a photo once you shared it on more than a thumbnail.
Most agencies won't accept it +Filip H.F. Slagter
I started to write a bunch of stuff, but I'll tl;dr myself.
Any social network needs a fairly broad brush to be able to legally display content. Google, for example, at a minimum needs your permission to post on G+, the G+ app, Drive if you use it, Picasa, They need further permissions to do things like in-app editing and Awesome. Google, to their credit, has asked express permission before doing things like the photo rotation on Chromecast though.
Both G+ and FB expressly say that if you delete a photo, it's deleted on their servers. Tsu says (to paraphrase) 'well, we kinda delete it but we don't delete shares'. They also include the language 'sell, lend, rent, reverse engineer' etc which are not AFAIK present in either G+ or FB's TOS and I suppose Tsu needs that for their 'MLM' but it's overly, overly broad. I can't imagine they'll do anything so brash as, say, resell your art to a stock art website but they certainly seem to retain the right. FWIW the language of their (Tsu) TOS implies that you'd have to file a DMCA for every share if you delete your account and want your data actually removed. Both G+ and FB's rights are more or less limited to the nebulous term 'services".
On a side note, I couldn't find Tsu's TOS linked anywhere on their website. It's available via Google Search, but it was faster to grab it off +Amanda Blain's excellent blog post on the matter – http://www.amandablain.com/tsu-scam-things-to-consider/ and I happen to agree with her.
Anyway, no matter what you post on social media – even links – you give up some rights. Otherwise, they couldn't post that pretty image preview. Search engines (Google) have won in court that they can display images and snippets because it's relevant to search, and they're just linking to you content. Social media is not a search engine.
At the end of the day, if you're going to get the word out you have to decide who you trust. For me: I don't trust FB other than begrudgingly posting links because both their privacy settings and their TOS seem to change every day, and rarely in my favor. Tsu I just don't trust. Everything I read smacks of a pyramid scheme, but more importantly if you're monetizing, they sure as hell are monetizing you more. Ello, TBH I don't care. I don't like their Farmville business model. G+ so far has been benign, and if they're using my posts to serve me ads in search, they haven't been doing a very good job.
I think for me the key is to not think about photography as business, but rather think of photography as expression. Money does find it's way to expression, but it's not primary. Concepts like ownership, interest, copyright, exclusivity, economic value, all of this, again to me, does not matter. Networks serve as distribution for art only. Nothing more, nothing less. Or in the words of Andy Warhol, everybody should be nice to everybody.
+Thomas Hawk I don't really mind not making money, but I take offence at other people making money off my work 🙂 I.e., I don't watermark my photos but I'll sick the dogs on anyone that uses them without at least asking me. As such, I shy away from sites that reserve the right to directly monetize.
That's prey much my idea about social media… Anything you post goes to the beauty of the internet… You should expect it… And you shouldn't expect to be paid for it. If it Happens cool.
If everyone played nice online that would be nice… To bad few people support nice. 🙂
+Max Huijgen I just have to tell you that this post was necessary, well written and the timing is perfect.
I agree partly with +Thomas Hawk that networks serve as distribution for art only or you could say even better that art gets promoted by the networks.
The little differences in the networks are important though and for us photographers it's good to have now quite a variety. Tsu's concept is very promising and it will be interesting to see if and how the other networks will react to that.
Which raises the following question: if we grant Google+ a non-exclusive license to a 2048 pixel wide image, do we still retain the full exclusive rights to higher resolution images?
Legally you don't +David Bozzini as you share the 'work' not the specific resolution.
Commercially it's of course an entirely different matter. An agency can accept an image you shared before, but it's unlikely. I would make an exception for real thumbnails.
Thanks +Max Huijgen. Now let's play Bill Clinton for a moment: define "work". Two images taken one after the other, one at f/5.6 the other at f/8. They are different because (in general) depth of field will be different. Can you sell exclusive rights to the f/8 when you've shared the f/5.6 on Google+ ? I am not a lawyer and I expect neither are you. I am just curious.
I would say it's sex at every setting 🙂 +David Bozzini
Legally they would probably be different works, but commercially I don't expect an agency to pay you. It will depend though how difference it actually makes.
Now that my brain is better engaged, rights usually means commercial rights. Unless a photographer signs away all his/her rights, they still maintain ownership – just ask any wedding photographer. Because they own the image, they're still allowed to use them for non-commercial purposes – portfolio for example – and a good argument has been made that SM is just an expanded portfolio so long as the photographer is marketing themselves, not the photos.
So there's exclusive rights, and there's exclusive rights. The latter technically means the photographer hands over all files and deletes them off his computer and any backups. That is a very rare thing indeed.
So far as nearly identical photos go, though, a different frame, unless drastically different would likely be considered a derivative and the photographer would get in trouble for that legally. At the least, they'd lose all their customers for foul play.
You keep the copyright +Olav Folland but you lose commercial negotiating room. You could still sell a license for a SM published photo, but the interest will be very low.
Usually it works the other way: you photograph on an assignment and that will be your actual 'first' license holder. The left over room can be used by the photographer.
Sharing was lived in Meadville, Pa.16335
Thank You
Thank You Google+
+Max Huijgen great job on doing the work of sifting through all of these. It is however the standard, "obligatory" (these companies were told to put it there by their lawyers…) boilerplate that has to do with the fact that the Internet is BY DEFINITION a giant copy machine.
I don't think they have any choice but to insist on these terms, lest they'd want to be sued at every possible turn. They still get sued quite a bit… you are right though that it causes (some, possible) concerns on the question of still being able to sell an exclusive license of ones work again.
But the number of people for whom that is a problem is vanishingly small, and everybody else, given the scale of the Web, has the opposite problem: That nobody can even be bothered to steal their stuff…
Sharing was friends at here
P.S. I just posted the following tid-bit buried in a longer comment on Gideon's post, but since this is about photos, I figured its reusable over here:
—
"…But of course the incentives are far different, which explains how people have in 2013 alone ENTHUSIASTICALLY uploaded their personal (i.e. non-professional) smartphone photos at a rate of 10x of ALL of the traditional "on film" photos developed in 1999: 800 Billion vs. 80 Billion! (from the Ben Evans slide deck:
businessinsider.com/benedict-evans-mobile-is-eating-the-world-2014-10
)"—
Wrong
Thanks for taking the time to do this comparison, +Max Huijgen. I recommend you check out this recent post from LinkedIn announcing changes in their terms:
http://blog.linkedin.com/2014/09/26/updating-linkedins-terms-of-service-2/
They pride themselves on simplifying their terms, but not sure how it'd compare to what you've found from FB, Ello, Google and Tsu.
Also, Ello's not a nonprofit – just a Public Benefit Corp.
https://ello.co/wtf/post/FsXDQrTHGLKhHbaSaVrHXg
Sorry, I lolled at wtf 🙂
nice conversation everyone keep it up…
Know you
Not hidden for me +Alex Schleber 😉 I read it (and know it).
+Gideon Rosenblatt I simplify in all my posts. I struggle to keep them short and this one was already breaking my own rules.
I always trust that nuance and detail will come out in the comments and usually it does.
But you're of course completely right on Ello
I don't consider LinkedIn a SM platform. A specialized forum operating on the job market. And certainly not a photographers paradise 😉
Got it. Yeah, not for photographers for sure, +Max Huijgen. Still, it's worth a look while you're thinking about this stuff.
The term ´sharing´ is taken to a whole new level. If you don´t want your creations to be distributed, re-used, copied and more…. it's not really sharing, but using it as a bait. Don't publish what you don't want to give away for free.
As a creator its your right to publish your work without the expectation it will be copied +Elza van Swieten
+Elza van Swieten there's a huge difference between downloading someone's photo to use as a wallpaper, and using someone else's work to make money.
Of course, you're more than welcome to give anything you make away – that's why Creative Commons has so many licensing options.
And the "everything should be free" attitude is just going to make people less likely to share their works at all. Or, at least, scribble their name all over it.
Sure +Olav Folland but before putting anything on the internet, consider, do I want to give this away yes or no. If you don't want your high res photo's appear anywhere, just share a small example. Anything shared online can be lost.
No, I never share full-rez images, particularly anything I want someone to steal. And my source files never leave the house. In fact, some of my more favorite images are also registered copyrights, which means someone uses them, they're potentially facing a lot more than a mere DMCA takedown.
See, stealing other people's shit isn't just amoral, it's illegal. Imagine you put a sculpture in your front lawn and when someone nicked it, the cop just said "well, you shouldn't have put it there". There's no difference because in both cases they were on public display.
Rather than admonishing artists, why don't we put our energy into creating a culture where people actually respect and appreciate the amount of time and money someone put into making something?
+Olav Folland AMEN !!!