I have to apologize. In writing up a post about WhoSay, an invitation-only celebrity photo and social services site that gives all rights to their famous users, I treated something lightly that I shouldn’t have. To quote myself:

When people upload a photo or vid, most never stop to think who owns the rights to that image or makes money selling ads against it. (Usually it’s the TwitPics, Yfrogs and Plixis of the world.) Maybe that’s no biggie for Aunt Irma, but it matters if you’re Kevin Spacey, David Boreanaz, Chelsea Handler, Tom Hanks…

I completely retract that now. Even Aunt Irma should be able to retain and manage the rights to her own images, as does anyone else, famous or not. Unfortunately, as we learned this week, if she uses Twitpic, she may not. And we do have a famous face to thank for shedding light on that: Ellen DeGeneres.


This comedienne and talk show host doesn’t find what the photo upload service is doing to be very funny — or fair. One of her reps has made a public statement about the star quitting the service, due to its deal with World Entertainment News Network (WENN). The agency, which will act as Twitpic’s “exclusive photo agency partner,” will not only be able to use Twitpic images for publication, but can actually sue others who do so without its permission.

Whoa, wait just a second. They’re usurping users’ rights? With more than 20 million users, that’s an enormous inventory of images to hoard and profit from.

According to Twitpic’s terms of service (TOS), users aren’t totally giving up their ownership rights. They’re merely agreeing to let the service borrow it. In other words, there’s a clause in there letting the service claim “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.” When you use the service, this is actually what you’re agreeing to. (To read the whole thing, click here.)

Now Lloyd Beiny, chief exec at WENN, doesn’t think the general public has anything to worry about. His agency isn’t interested in you or your Aunt Irma — just famous people. The deal only covers the accounts of several hundred stars.

Mmmmkay, not sure that really makes it alright. And you know what? This might not even be true. Before a similar deal with Plixi fell apart, Beiny had told Amateur Photographer magazine that WENN claimed rights to all of the service’s photos. Sure, the agency was primarily interested in celebrities, he said, but that didn’t mean WENN wouldn’t sell “extraordinary” photographs of any kind from anybody else. Thankfully, the deal was squashed when social commerce network Lockerz bought Plixi. Why did they kill it? Because they weren’t comfortable with this arrangement.


Hey, Lockerz — nice one on not selling us out. Now whack
down that whopping credo of terms, k? Thanks.

It’s obvious why this is a huge deal for Hollywood stars and other personalities, as well as photographers, artists, and models. But really, it should be a big wake-up call to all of us. If the only thing stopping companies from profiting off people’s own images is their business directives, then it’s far from reassuring. Priorities change all the time, meaning there wouldn’t be much to stop firms like this from using our images however they wanted — in liquor billboards, diet supplement promos and hemorrhoid cream ads. Or even worse.

That’s why terms of service notices are critical reading. They tend to lay out stuff like this, so everyone knows what they’re signing up for. Companies are required to inform the public and let them decide whether they’ll agree to their terms. And to be fair, a lot of them do this. Problem is, it often winds up buried deep inside a cluster of text, or is thick with lingo, disclaimers, legalese and jargon, so that it’s hard to decipher — or both. Not can it be hard for everyday people to parse this, but multiply that across every application, service or online sign up we face.

We’re drowning in a sea of terms. And for what? So the company can point to a short clause reserving the right to change those terms without notice? No wonder people click through without reading them.

And now we’ve hit at the real essence of this whole privacy issue. Companies that offer epic privacy policies or jargon-filled terms of service are hiding their intentions in plain sight, hoping most of us won’t notice. Like the Nintendo 3DS.

The digital rights group Free Software Foundation shone a light earlier this month on an eyebrow-raising item buried in the handheld’s terms of service. The gaming device, which comes with a built-in camera, also comes with a clause stating that the company can use customer images in a variety of ways, including marketing. (I am shaking my head as I write this. Seriously, Nintendo? Did you really need more drama?)

A statement from Nintendo says the company didn’t use the content without permission, and the terms were “consistent with industry norms.”

Actually, I don’t doubt that. In fact, I think that might be exactly the problem.

[via The New York Times]