Who owns that photo?

Everyone wants to talk about the benefits of “being in the cloud” with your business – and there are certainly advantages. But as with so many things in your life, you need to be careful about running willy-nilly into something without looking at some of the fine print in the Terms of Service (TOS) you agree to when you use one of these services.

One of the more recent issues in this area has involved online photo sharing. When you take a picture, you automatically have a copyright for the picture. That copyright covers a “bundle” of rights that you can control.  You can give away some of the rights, sell some of the rights or just keep them all to yourself. If you’ve ever used a photograph with a Creative Commons license, you probably know a little something about how this works.

What you may not know is that if you take a picture and upload it to a photo-sharing site you may inadvertently give away some of your rights to that photo based on the site’s terms of use.  For example, when you upload a photo to Twitpic – a popular photo-sharing site that links with Twitter – its TOS (as of May 10, 2011) says that:

“You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.”

Cutting through the legal mumbo-jumbo, this means that you can use the photo however you want…but so can Twitpic.  For example, if you take a picture of a celebrity getting arrested, you could sell it to the tabloid of your choice but so can Twitpic. Odds are good they’ll do it first and they won’t be paying you for it, either.  In fact, Twitpic has signed a distribution agreement with the World Entertainment News Network (WENN) to do just that.  Though they’re primarily interested in celebrity photos, there’s nothing to say that the listing photos you uploaded to the service won’t be sold to a stock photo site next year.

Is this a bad thing?  Maybe…maybe not.  Twitpic says that giving them these rights makes it easier for them to track down folks who just try to take your photo without payment or attribution.  Other commentators have been less charitable and some have overreacted to the point of totally misunderstanding what these changes really do.  But at the end of the day, it’s up to you to read the terms of service so you know what rights you’re giving up to certain providers.