Questionable terms of service on some photo printing sites.

Started Nov 18, 2010 | Discussions
Dave Guy
Regular MemberPosts: 141
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Questionable terms of service on some photo printing sites.
Nov 18, 2010

I looked up the terms of service for a bunch of sites... and I'm not happy. Here's what I found:

  • Shutterfly: I've used them for photo books. They're nice, but I think I have to stop. Here's an excerpt from their TOS:

http://www.shutterfly.com/help/terms.jsp

In the event that you post or upload to the Service, or otherwise submit to or through Shutterfly as part of your use of the Service, any materials including, without limitation, photographs and other images, text, graphics, videos, visuals, sounds, data, files, links and other materials (collectively, "Submissions"), you will retain ownership of such Submissions, and you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) such Submissions, solely in connection with the Service ( including without limitation for purposes of promoting the Service ). Please note that, while you retain ownership of your Submissions, any template or layout in which you arrange or organize such Submissions through tools and features made available through Shutterfly are not proprietary to you, and can be used by Shutterfly and others for any purposes. You acknowledge and agree that you have no rights in any such template and/or layout, and such template or layout shall be the sole and exclusive property of Shutterfly.

Now correct me if I'm wrong, but they want the right to use your photos not only to make products for you, but also to "promote their service". In other words, they own your work.

It's too bad; they offer a good service otherwise.

  • Smugmug: I think their TOS is fine actually. But this "perpetual" phrase still bugs me. I think it means (among other things) that even after you delete your content, they can still display it... it's probably nothing, but the legal language just bugs me.

http://www.smugmug.com/aboutus/terms/

...you grant SmugMug a perpetual, nonexclusive and royalty-free right to use the User Content and the name that is submitted in connection with such User Content, as is reasonably necessary to display the User Content, provide the Services and to facilitate, at Content Owner's direction, the license of Photos or the sale of Products on the Site.

  • Google/Picasa: Oh c'mon... I just want to show some people a few pictures. Do I really need to sign over all my rights to my work?

http://www.google.com/accounts/TOS?hl=US

By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services .... You agree that this license includes a right for Google to make such Content available to other companies , organizations or individuals with whom Google has relationships...

  • MPix & Blurb: The TOS's look ok! That's great news... blurb makes great books and Mpix obviously does a good job with prints.

  • Snapfish: A little ambiguous... I think their lawyers basically leave the door open for them to take ownership of your photos though. "Improving the Service" could mean anything.

Accordingly, as a condition to your Membership, you hereby grant Snapfish a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of, and distribute your Content, solely for providing or improving the Service.

  • Kodak: Ambiguous.

http://www.kodakgallery.com/gallery/footerLinksContent.jsp?pageID=600010

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.

Overall, Shutterfly & Google/Picasa seem the most aggressive. Again, correct me if you disagree (I'm not claiming any legal expertise), but it seems like they're just about taking ownership of your pictures. I guess for photo books, Shutterfly is out and Blurb is in.

Why on earth does anyone put up with this?

Red13
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Re: Questionable terms of service on some photo printing sites.
In reply to Dave Guy, Nov 18, 2010

You might want to rattle around the web and see what others have posted about the terms of agreement.

My memory is fuzzy but it seems that those terms need to be in the user agreement to allow the pictures to be viewed by others.

It was a few years ago when these terms came under scrutiny. If I remember correctly, they were necessary allow you to show your images on the web.

Mike

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Dave Guy
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Re: Questionable terms of service on some photo printing sites.
In reply to Red13, Nov 18, 2010

It was a few years ago when these terms came under scrutiny. If I remember correctly, they were necessary allow you to show your images on the web.

Sounds to me like that's what their lawyers want you to think. I don' t see any way to interpret their TOS to be that narrow.

After all, MPix, Smugmug, and Blurb don't seem to have this issue. Why is Shutterfly so much worse? SF is pretty clear about wanting to use your photos to promote their own products indefinitely.

There's surprisingly little on the web about this. I think MPix used to have a bad TOS but pressure from the web got them to reform it.

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Richard Katris
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Re: Questionable terms of service on some photo printing sites.
In reply to Dave Guy, Nov 19, 2010

I agree with Dave....and SMugMug's TOS seems to reflect a more balanced usage of the images JUST for what is needed to display them as YOU THE OWNER wishes to have them displayed...in order to make sales that benefit YOU.

Many free sites are more like this one the OP is objecting to with the true intention of making money off of the images they host by selling and sub-licensing them to paying future clients. I don't join any such sites because of this. Some of the sites have tempered there TOS to remove this odious shared ownership clause...others retain it.

As I recall, if you uploaded images to Sony Image Station, they had a similar sharing clause. Also last time I looked if you upload you images to WalMart or Sam's Club and then go pick them up at the store....they also make ownership claims and rights to use your images as they see fit ad infinitum. So I don't upload my images to them either....we all need to read the TOS of any service we plan to use with out images if we want to have them retain any value, as distribution by others with no control over distribution or fees will only serve to devalue our images in any applications where we might want to license them ourselves.
--
Richard Katris aka Chanan

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Dave Guy
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Re: Questionable terms of service on some photo printing sites.
In reply to Richard Katris, Nov 20, 2010

Holy cow.... you can't even upload photos to Sam's (in order to print them) without signing over your rights? Yup.... we should not be using those sites.

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rob-t
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Re: Questionable terms of service on some photo printing sites.
In reply to Dave Guy, Nov 20, 2010

Walmart's isn't that bad actually, mainly because of the last clause in bold, and the sentence after that.

http://photos.walmart.com/walmart/termsofuse wrote:

WALMART.COM claims no ownership rights to the photos, photo files, albums, projects, captions or prints, (collectively defined as "Content"), that you place in your Walmart Digital Photo Center Account. However, by uploading Content into your Walmart Digital Photo Center Account, you agree to waive all moral rights to those images. In addition, you grant to WALMART.COM a nonexclusive, worldwide, royalty-free license, so we can download, upload, copy, print, display, reproduce, modify, publish, post, transmit and distribute the photos included in your Photo Center Account for the purpose of displaying Content to the people you select and to fulfill orders.

We will not use or modify your Content for marketing purposes or any other purposes without obtaining your express permission.

Costco's is also pretty good:

http://www.costcophotocenter.com/help/terms.aspx wrote:

When you join our Service, you become a participant in an online community of people who enjoy taking and sharing photographs. In order for us to make your photos and Costco Photo Services available to you and anyone you authorize to see your images, we need the rights to make use of all content on the Services (in accordance with and subject to these Terms, of course). Accordingly, as a condition to your Membership, you hereby grant Costco Photo a perpetual, universal, nonexclusive right to copy, display, modify, transmit, make derivative works of and distribute any content transmitted or provided to the Services by you, solely for the purpose of providing the Services. In no event will Costco Photo print or display any content provided by you, other than in accordance with any activity initiated by you (e.g. photo sharing, printing, etc.). You remain the owner of all content that you submit to the Services and as a condition to Membership, you represent and warrant to Costco Photo that you are the owner of the copyright to content you submit to the Services or that you have written permission from the copyright owner to submit such content.

Flickr's license is also not all that bad, mainly because of the bolded clauses here - most other agreements do NOT automatically terminate, meaning that they can keep your photos forever - photo-based data mining is a very interesting field in computational forensics these days. Say they analyze all your photos on flickr and notice a higher-than-average number of Mr. Pibb cans in your photos. Then you start getting Mr. Pibb adds when you go to yahoo.com and Mr. Pibb coupons in your yahoo email. That sort of thing. At least it stops (in theory) when you delete your flickr account.

http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html wrote:

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.

Google archives everything forever, however, regardless of whether you terminate your account. Which is why I don't use Picasa. I've got to kill my Gmail and Google Docs one of these days... but they're sooooo useful. Oy.

http://www.google.com/accounts/TOS?hl=US wrote:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

13.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Google have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation , and the provisions of paragraph 20.7 shall continue to apply to such rights, obligations and liabilities indefinitely.

The safest method is still setting up your own web server at home over your home internet connection (provided you have a fast enough pipe). That way you have full control over your own website and email. Get a photo printer, and you don't have to worry about that either.

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Dave Guy
Regular MemberPosts: 141
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Walmart & Costco
In reply to rob-t, Nov 20, 2010

Cool, you're right about Walmart & Costco. They actually look ok.

And google/picasa are even worse than I thought. Hmmm, what ever happened to "don't be evil"?

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BenJ17
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Re: Questionable terms of service on some photo printing sites.
In reply to Dave Guy, Dec 19, 2012

Well, technically I guess they don't take ownership.  There are two copyrights - one is owned by the picture taker / 'artist' (think of any songwriters song thats been covered).  There is a different copyright they are claiming for 'performance' (think of the cover band) - this copyright is required anytime a person like Costco or Walmart wants to print it, or if they want to put it on their website (even if only for the purpose of sharing with your friends).  They need to have the legal permission to do this...  So in a sense, they have to have some legal rights to your content for some of their basic services.

Where i see them taking liberty is in promoting their service - so they could take your adorable childs photo and use it in a Shutterfly ad.  I don't see they are giving themselves access to sell your work to 3rd party advertisers.  You see language "Solely in connection with the service"

But throughout, you still own that first copyright.  If you wanted to make money off of that content - they wouldn't have any way to block you from it (the original performer of the song still owns their song).  But they have 100% license to reproduce your work in relation to the service - with no compensation / royalty to you...

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