Category Archives: Photographers’ Rights

Privacy, Rights and the EU

I’ve said recently that the extent of social media licenses will be probably tied to issues of privacy, and that it’s likely the EU will take the lead. In the recent Google case, that’s exactly what has happened.

EU courts are far more friendly to the individual rights of privacy than US courts are. Thus, the EU courts are more likely to limit the rights that technology companies assert to our photos, identities and other data.

In the recent decision, the court ruled that an individual could require Google to suppress accurate public information that he did not want associated with his name. (In this case, a foreclosure filing that came up in a search of the person’s name.)

While this does not directly relate to the limits of the Instagram Terms of Service, it shows an aggressive stance by the court regarding an individual’s right to information about themselves. It’s not a far jump to imagine the court siding with the individual in a dispute about perpetual social media contracts.

Having said that, I think the recent decision is terribly flawed on many levels. Enforcing the decision seems entirely unworkable. And in many ways, it’s like requiring the removal of public records from a public library, or, at minimum, the indexes of the public library.

While I don’t think this decision is likely to stand over time, it does outline a way for backstopping some of the more open-ended social media contracts. Watch this space.

The Fire Hose

Dateline SXSW – I’ve written over the last year about how Instagram is creating a commercial service to supply photos for editorial and marketing purposes. The legal foundation was laid in January 2013, the service was turned on as a trickle last fall, and now it’s starting to get traction.

At SXSW, I spoke with some people who are making use of these photo streams. This includes people on the client side who are building campaigns with these services, as well as companies that help clients make sense of the photos and other data.

They have a name for it. The Fire Hose.

The analogy is obvious on one level. There are so many images coming through these services, it’s like the difference between a drinking fountain and a fire hose. These companies are excited to create engagement with their audiences by mining the millions of photos, tweets, Facebook posts and more that make up the world of User Generated Content (UGC). UGC creates a  new kind of media engagement.

And the Fire hose analogy is also useful in another way. In these arrangements, the company does not pay for the “water” (the photos), they pay for the access to the “pipe” (the API.) This allows the service to sell access to the material in a way that denies that the photos have any value. The value being charged for is the underlying access to the Fire hose and the connectvity. (See Getty).

Of course, this has profound implications for the independent creator. If you put your images on sites like Instagram that are part of the Fire hose, they may be republished widely with no money coming to you.  And use of UGC is creating a great deal of excitement for the client companies. It will take an ever larger share of the budget and attention of advertising, marketing and editorial teams.

Even though the use of the Fire hose does not replace the use of professional photography, it will certainly divert money away from it. I believe that it will take a while for companies to understand the best way to get a proper mix of UGC and PCC (Professionally Created Content, to coin a term.)

Still lots unsettled
I can also report that much of what I have previously identified as unsettled remains unsettled. This uncertainty is what is holding back the full blast of the hose. The unsettled issues are, in my view, primarily about the legalities of the TOU agreements.

• Are the rights in these contracts really something that can be sublicensed?
• Are the liability protections in the TOU going to hold up in court?
• Does the user really forfeit the right to terminate the agreement?
• Will there be a public relations nightmare in the early days that makes this a risky tool for marketing?

As we see companies pushing the envelope, we’ll start to find the legal and moral edges of what is considered acceptable use of the Fire hose. I expect that the boundries that we settle on will give Facebook, Twitter and Google an extremely broad right to make money from the Fire hose.

If you are a professional creator, it would be smart to factor this into your business strategy and your long-term planning, carving out a viable value proposition in a world drowning in UGC.

Getty did what?

GettyGetty images are now free.

Okay, so I’m trolling. They are not “free.” But editorial and academic uses of unwatermarked images on blogs can now be done for free, as long as the images are embedded in the blog, rather than uploaded to the blog. That looks a lot like free to a lot of people who publish blogs. Including widely-read blogs. Here’s the link.

At right is my chat tonight with a Getty representative. Relevant passage at the bottom of this page.

So what’s going on here?  This is not particularly surprising to me. I’ll outline it here as succinctly as I can. Let me say that this is opinion, including a fair amount of speculation. I wish I had inside information about what they are up to, but I don’t.


On any other day, the photos on my blog are mine. But today, we make an exception, and I’m using photos from the Getty embed service.

Private equity
The first thing to look at, as we consider the new Getty business strategy, is the ownership of the company. They are owned by the Carlyle Group, a private equity firm. While there are plenty of ongoing ventures owned by private equity, it’s pretty common for private equity firms to buy a company, and then sell it for the parts. (As long as the parts are worth more than the purchase price.)

I’m working under the assumption that Carlyle does not want to be operating a stock photo agency in 20 years, or even 10 years.  At minimum, I don’t see them wanting to operate a stock agency that is in partnership with photographers.  2011 revenue was $900 million. If they made 10% profit, that would be $90m, good for you and me, but a pretty tiny return for Carlyle’s 3.3 billion purchase price. And they have a $1.2 billion loan due in 2016. Sometime between now and then, it would be smart for them to sell this thing off and cash out.

I just don’t think that Getty looks like a buy-and-hold for Carlyle. So what would they sell? I don’t think it’s a souped-up old-school Getty. It’s something different.

And keep in mind we’re in a world where Instagram has opened up the spigot for usage of its 20 billion image collection through the API.

Picscout
Picscout is image recognition technology that Getty bought for $20 million. It was developed to help photographers find infringing uses of their photos on the web. It does a very good job of scouring the web and finding multiple instances of the same photo. Getty has built an enforcement department that collects some royalties for these infringements, but this is a lot of work for a small amount of money (again, in their context).

And it only works for pictures that Getty owns outright. If Getty has a non-exclusive right to license a photo, then it can’t go around demanding money from anyone using the photo. The user might have a valid license obtained from the photographer or another stock agent.  This takes all the automation out of the process, and turns it into a high-cost, low-reward endeavor. This business absolutely does not scale in the way Carlyle needs.


Pinterest
Last year, people were scratching their heads over a deal Getty made with Pinterest. Getty is using Picscout technology to indentify images on the social media site and provides permission to use the photos.  But they are not licensing the photos, exactly. Getty agreed to license metadata. On one level, it’s pretty obvious what’s going on. Getty is not obligated to pay photographers for metadata, so that makes sense (if you’re Getty.)

And on another level it works even better. Getty gets to build and deploy some really interesting new technology that provides licensable connectivity between different copies of an image. So you can connect that cute dress photo on Pinterest to the online catalog is was pulled from. It allows Pinterest to say they are working on a rights solution, while not setting  a precedent for actually paying for photos (which could come back to bite).

Getty makes money it does not have to share. The private equity firm that bought Getty gets a great sandbox to build the business, and Pinterest gets some safe-harbor cred when it tries to be bought or go IPO.

The valuable technology here is not photo licensing or license enforcement. The valuable technology is a semantic understanding of the visual web. Getty is building the technology to tie photos to each other, to the places they are published and how they are shared, and to provide an underlying commerce engine.

(From here out, I’m going to call this “the database”. While it has more elements than a simple database, at the core, like Google, it’s a set of related data.) This database has the potential, in my opinion, to be worth far more than the picture licensing business ever will be, at least in our current hyper-inflated tech bubble.

It’s like what Google can provide, but different. Google Maps is extensible underlying technology. It can be used by nearly any application, business or individual in the world to help them understand context and connection in nearly anything, as long as there is a geolocation component. Imagine if you could do that for photos. Technologies like this are extremely valuable, on many different levels.


This is a photo of Betty, the lady who runs the internet.

It’s about connectivity

Ultimately, the strategy for leveraging Picscout technology is all about connectivity. The database provides connections between images, which enables an understanding of the context of images in a semantic way, a behavioral way, as well as a commercial way. As images become a new language and central to most forms of interpersonal and cultural communication, it’s ever more valuable to understand them in these contexts.

The more robust, ubiquitous, and intelligent the database, the more valuable it is.

So an important part of the business plan is the connectivity enabled by Picscout. But you can get connectivity another way. Embedding images is the ultimate connectivity. The existence of the photo is utterly dependent on the connection between the server and the user remaining intact. This means that the website using the photo is beholden to the service offering the photo. If the hosting stops, the photo disappears. All the photos on this page, for instance.

(This is at the very core of API World. More on that another time).

But even more important, connected web objects like these embedded photos are a means to gather tremendous amounts of information. You can know who sees the photo, who clicks on it, how many times it’s served, to what countries, what times of day, where the viewer came from and where they exit to (to name just a few details).

And if you allow for in-object links, the image can even become a platform for commerce. (Read the snippet from Getty website at the bottom of this page). One day, Getty could decide that  photos of VWs will carry a link to an Amazon store that offers vintage VW parts. They can turn it on, and be in millions of places instantly. The technology to do that is already in HTML 5 and does not require plug-ins or updates by users or anything else. (Check out Stipple if you don’t know what I’m talking about).

Roadkill?
So if the really valuable thing that Getty owns is this connectivity and the semantic understanding of our visual media, what about the stock photo licensing business? It’s certainly a really useful tool for building the database – it offers a whole bunch of useful assets: a lot of images to test on, negotiating power with any social media entity, legal cover for social media companies and official agency for many people in the industry, which allows Getty to implement the database without being bombarded by lawsuits from image creators.

Getty has chosen a strategy (give it away for free, become core service) that is tried and true for company flipping, but much less successful as a long term strategy. To me this speaks very clearly.

When it comes time to sell Getty, the stock photo licensing business – the one where the company partners with photographers and other image makers and does traditional RM or RF or even subscription licensing – will probably be second-fiddle to the technology company. In that context, the most important issue is not screwing up the bigger, more valuable deal. Maybe their image collection is central to the business model, or maybe the far larger set of images outside their collection is more monetizable. The disposition of Getty’s stock photo business is a question mark. They may need to keep and nurture it, spin it off to make a few bucks, or kill it if it’s getting in the way of the bigger deal.

In the end, I think the traditional partnership-based stock business is probably roadkill in this equation, at least from Getty’s perspective. Stock photo partnership is going to be flattened by a truck rolling down the highway that is 100 times larger. Inflated tech money is starting to roll into media and content in a big way. I think we a sale or some other recapitalization of the company before the end of 2016. I’ve actually been waiting for this to start in earnest, and here it is.

Or maybe they just decided to give away the photos for free.

 

Embed Terms:

Embedded Viewer

Where enabled, you may embed Getty Images Content on a website, blog or social media platform using the embedded viewer (the “Embedded Viewer”). Not all Getty Images Content will be available for embedded use, and availability may change without notice. Getty Images reserves the right in its sole discretion to remove Getty Images Content from the Embedded Viewer. Upon request, you agree to take prompt action to stop using the Embedded Viewer and/or Getty Images Content. You may only use embedded Getty Images Content for editorial purposes (meaning relating to events that are newsworthy or of public interest). Embedded Getty Images Content may not be used: (a) for any commercial purpose (for example, in advertising, promotions or merchandising) or to suggest endorsement or sponsorship; (b) in violation of any stated restriction; (c) in a defamatory, pornographic or otherwise unlawful manner; or (d) outside of the context of the Embedded Viewer.

Getty Images (or third parties acting on its behalf) may collect data related to use of the Embedded Viewer and embedded Getty Images Content, and reserves the right to place advertisements in the Embedded Viewer or otherwise monetize its use without any compensation to you.

(Editor’s note: Or the photographer)

David Byrne and the Independent Creator

I’m peeling this post off of a discussion I’m having on Facebook with Leora Kornfeld, who writes about Disintermediation as a Harvard Research Associate. I think this message is an important one for all independent creators to be thinking about as all content-based industries are changing around us.

Here is David Byrne’s Oped in The Guardian. In it, he argues that new media consolidation on the internet is squeezing the economic sustainability out of music broadcast.

And here’s my take on it:
I think he has a point about the economics of the new aggregators. It’s a little ironic to see a reference to the good old days of the record company fairness, since they were the posterboys of IP robber baronism. 

Now, it’s the tech aggregators turn. It may be an even less fair arrangement, due to a confluence of factors. The end result will probably depend on whether the winner-take-all model topples, or whether it stands. 

Also it’s probably more accurate to say that the new model is sucking the economic sustainability out of the middle and bottom rungs of a professional art form. Whether that translates to the “life” or not is a different question. 

Of course, both of the above questions are linked. Do new disintermediation models spring up to get around the reintermediation™ of Amazon and Pandora? Jeff Goldblum would say that life will find a way.

You’ll see many people in the tech world shrug and say, “Get used to it.” But this ignores the fact that there is no one single natural order of things. The rules (laws) governing business practices set the playing field. And those rules are set by governments.

When radio was new technology, for instance, payola was outlawed. This law was instrumental in the development of music businesses in the radio age. Without these laws, the record companies would have had an even tighter stranglehold on the entire industry and could have required even more onerous contractual terms.

Monopolies deform the marketplace, generally to the detriment all outside stakeholders. Disintermediation is undermining the power of the existing content oligarchies, but reintermediation is apparently on track to bring an even greater concentration of wealth and power into fewer hands.

Along the way, these companies will work to bend the rules in their own favor. So I don’t think that stakeholders outside the new oligarchy should simply “get used to it.” Our laws are ill-equipped to deal with the challenges of the digital age. And we should not leave the law-writing only to those with the highest concentration of wealth and power. History teaches us that they will try to increase their power by tilting the playing field. 

It’s possible that these companies will be prevented from becoming true monopolies through some market-based limiting factor, such as hubris, incompetence or outside competition. But it’s also possible that they win the winner-take-all game.

In that case, as with the monopolies of the last century, it may fall to governments to limit the power of these companies. It’s important for independent creators to stay informed and to advocate for their own best interests.

The other shoe dropping

Late breaking news: Facebook has delayed the implementation of the new policy. Send your comments to Facebook today. Link at the bottom of this post.
Facebook has just claimed the right to use or sell your identity, your content and your data without limit. They have nuked their own privacy policy, removing the right for you to keep anything private.   This takes the suckiness of the Instagram contract and adds even more suck by explicitly making you agree that everything they know about you is for sale, and that you have no right to keep any of it private. The new terms are set to take effect next Thursday.

ReallFcebookYou can find the proposed document here.

 

Facebook has asked for comments. They can be posted here.

 


Here’s the most important language (strikethrough indicates language that is being removed. Bold text is used to indicate the new additions).

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name, and profile picture, content, and information in connection with commercial, sponsored, or related that content (such as a brand you like) served or enhanced by us, subject to the limits you place. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.


The Section-by-Section Summary of Updates takes pains to claim that Facebook has the right to collect and make use of data that it finds “when you are using Fcebook or when Facebook is running.” This probably gives Facebook a license to collect, use, share and sell most of your web browsing (unless you are running software to block cookies) and much of what your mobile phone is gathering, such as your location, phone calls, etc.

They are already collecting a lot of this information. The screenshot below is from my Facebook feed a few hours after I did a search for a hotel in Reston on a totally unrelated site. Facebook is already collecting, using and selling this kind of information. They are now asking for irrevokable permission to continue, and to add your photos to the mix.

130829_Facebook

As with the Instagram Terms of Use, I believe that Facebook is asking for open-ended permission here that does not serve the needs of users. This is an overly broad agreement that shifts the control over a person or company’s content and identity too far into the hands of Facebook.

I’ll be deleting the mobile application off my phone because I’m uncomfortable with the amount of data it gives to the company. I’ll have to think about any additional action depending on how the company responds to the comments.

The Instagram Papers

DAM Useful Publishing and ASMP have just released The Instagram Papers, a collection of essays about the current Instagram Terms of Use, and the rights that they give the company.  The company claims a right to do nearly anything with the photos and videos uploaded to the service, including to sell them, forever.

TheRightToTerminate

In response, we have put out an open call for a meaningful right to terminate social media contracts. We believe that the right to sublicense your photos and identity should be something you can revoke, if the company’s practices become objectionable.

Over the next few months, ASMP will be working with other organizations to advocate for this basic contractual right. If you are interested in lending your name or your organization’s name to the effort, you can contact me here.

Here’s a link to the complete papers, which are available for free download and distribution.

 

 

Instagram Terms – Still Terrible

Instagram made a big deal of backpedaling through the PR storm it created with the proposed Terms of Service (TOS) changes. They claim to be really sorry, and that they have learned their lesson and will respect their users’ wishes better in the future.

After reading the amended terms of use scheduled to take effect January 19th, 2013, I’m unimpressed with the changes.  Some extra-crappy parts include:

Continue reading Instagram Terms – Still Terrible

Instagram creates terrible new user agreement

 

I’m generally not alarmist about web rights boilerplate, since there is often a lot of ambiguity. Nothing ambiguous about this. (Item 2 in Rights, emphasis added.)

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

Note that this includes minor children.

If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

Oh, and you agree to indemnify them in case of breach of privacy. (That means you agree to pay their legal team in the event one of your subjects sues for being included in a viagra advertisement).

(Item 4 in Rights)

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

And this part in Indemnification:

You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Instagram’s request), indemnify and hold the Instagram Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Instagram in the defense of any claim. Instagram reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Instagram.

Note that this language seems to grant a license to the actual photograph, and not just the copy uploaded to Instagram. If they could find a high-res version somewhere, they may have the rights to that also.

The only opt-out is to delete your account.

The changes take effect January 16, 2013.  So, what does one do?  Well, I don’t see much option except to delete the account.  And if your tween or teen child has an instagram account (and many of them do), you’ll want to think about blocking that.

Instagram claims the rights to any photos uploaded after January 16th in perpetuity, regardless of whether you delete your account later.

(Cnet article here.)

This is breathtakingly horrible.