Over at the online photography magazine, Photofocus, Scott Bourne warns photographers of the terms of service they may unwittingly agree to by posting a picture on Twitter. From the article:
Ask a real lawyer (not some guy named Larry who plays one on your local camera club forum) what this means. I did. My lawyer says it means that Twitter can do pretty much anything it wants with my photos (other than claim actual Copyright to them) and there’s nothing I can do about that. Is that an issue for you personally? Maybe not. It’s unlikely it will impact you if you aren’t trying to sell your photos. But if you are, read on.
As a professional photographer, I can’t sell “exclusive” rights to any image I decide to publish on Twitter. The reason is that once it is published on Twitter, there is no exclusivity left. That could be expensive. As professionals, we need to decide whether the exposure we get via Twitter is worth that trade off. For some of us the answer is yes – for others the answer is no. The purpose of this post is to get you to understand that you will have to make some hard choices. I am hoping they are informed choices, no matter what you decide.
In the case of the Twitter TOS, it seems that the terms Twitter stipulates are exactly the pro-freedom position: you can do whatever you want with the stuff you own (stuff, not ideas) unless you have contracted some other arrangement. Twitter owns the servers. You own the photo, sure, but you still have the photo after you uploaded it. What the uploader is actually doing is using Twitter’s stuff to create a copy on Twitter’s servers. For the photographer to then claim that he has the right to determine what Twitter does with it is like going to someone’s house and using a dollar bill left on a counter to make origami, then demanding the right to determine what happens to it as a result of your pattern rearrangement. It is nonsense from the start.
This sort of TOS is bad for photographers for reasons having nothing to do with whether you approve of the idea of copyright or not. In the US, photos of people that are used for commercial purposes (in other words, in advertisements) must have a signed photo release from every identifiable person in the photo. If you don’t have a release, that person can sue.
What this means for the Twitter TOS is that they can sell an image without the knowledge or permission of the photographer or the subjects to marketing directors and stock photo agencies. Then, when the subject of a photo finds out about it and sues, the photographer is the one who is on the hook, not Twitter.
No serious photographer is going to upload their photos to Twitter because of this, but sooner or later some poor random person who took a picture of his favorite musician from in front of the stage is going to be screwed over because of it, and he’ll never have any idea that he’s in any danger until it’s too late and he’s filing for bankruptcy.