Mommy, isn’t that Grandma in that advertisement?

Just ran across another photo sharing site called Phanfare, sent as a link to some photos from a school function a few weeks ago. After viewing the photos, I had a look at the Phanfare Terms of Service, and sure enough, following Facebook’s example, Phanfare takes rights to any content its users post:

 “When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing (for promotional and advertising purposes, among others). Any such use by Phanfare will be governed by our privacy policy. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.”

I suspect this is a case of lawyers telling the founders this kind of thing is a good idea, but it’s only a good idea if your users don’t take the time to read all this fine print. And who does? Only people who for some reason care about how their photos are used. But everyone should.

Facebook and Phanfare grab these rights in fine print and even if their only intention is to use user pictures to promote their own products, the proper, ethical thing to do IS TO ASK PERMISSION! Most people would be pleased, after all, to be featured in a Facebook ad. But using someone’s photograph of a child or grandmother without their permission and then pointing to the TOS to say “Hey, you gave us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof” is reprehensible. And I’m not talking about any loss of usage fee, I mean a lack of basic courtesy. And this addresses only the use of personal photos to promote the service. Words like “for promotional and advertising purposes, among others” allow usage OTHER than self-promotion, which brings me back to the worst-case scenario already mentioned about some entity like Getty, which is buying every collection of photos it can, buying YOUR photos without your consent and doing whatever it wishes with them. 

Scott

Posted on May 22, 2009 in Uncategorized Share

  • This is a non-issue. Phanfare has this in the terms of service because in order for us to show your photos at all to your friends and family, we needs some sort of right to do so, and we are just saying you grant us this right.

    We are not claiming any right to use your photos in advertising. What we don’t want is somebody claiming that because your photos appeared on a Phanfare page with a Phanfare logo on it that we used your photos without your permission. Even a customer’s album pages could be considered “promotion” if they had our logo.

    But note that we specifically say that if you remove your photos, we lose the right. And we restrict ourselves to our privacy policy.

    I will probably try to change this policy to make it a bit more clear that we don’t resell your photos or put your photos in advertisements. If anything, it will prevent these periodic paranoia attacks that we have any goal other than to safeguard your media and let you control it.

    Andrew Erlichson
    CEO
    Phanfare, Inc.

  • Andrew, thanks for responding and clarifying Phanfare’s position on an issue that continues to beleaguer so many photo sharing sites. I look forward to seeing different language in your TOS and will certainly check back occasionally in the hopes of finding it. I particularly look forward to the removal of references to using your customers’ content to promote Phanfare without written permission of the user, to the rights granted being transferable, and to the granting of sublicenses for promotional and advertising purposes (I would sincerely like to hear why you need those rights just to safeguard your users’ media). I’m glad to hear that as CEO of Phanfare you don’t intend to claim the rights to your users’ content for promotional or advertising purposes, and when your TOS no longer claim those rights I will applaud that change.

    As for classifying the concern of where and how personal photographs might be used without permission or approval as paranoia, that does trouble me. You mention your desire to safeguard your users’ media, which to me is an admission that people should be concerned about what could happen to their photos. There is enough risk of having photos that users choose to make public stolen by anonymous viewers via screen capture; one certainly doesn’t like to think that the company one is paying a fee to might also use personal photos in a way that would be undesirable to the user.

    In fact I’m willing to take your word for it that Phanfare has no intention of grabbing your users’ photos for an international advertising campaign. But you may have noticed that companies like Phanfare get purchased by larger companies from time to time. You may even have started Phanfare with this very hope, or at least be open minded to Getty or some other large media company shaking a bucket of money at you. And while I’m willing to take your word for it that your TOS do not precisely represent your personal intentions, do you ask me to trust that whatever company might in the future buy Phanfare will take the same generous position? Surely it’s impossible to protect your current customers unless the TOS they agree to when they sign up spell out exactly what rights they grant by doing so.

    So please do not refer to this as a non-issue because you personally have no intention of exploiting the language in your TOS, and please don’t characterize concern about what happens to our personal photos as paranoia. Please DO be the first photo sharing site I know of to truly protect its users and their personal media by stating exactly what you DO intend to do with those media. If I see your TOS state clearly that Phanfare will only present user media on the Phanfare site in a way users desire, and will not use anything uploaded for any other purpose without explicit permission from the user on a case by case basis, and that the user retains ALL other rights to their media, I will compliment Phanfare to everyone who will listen. I sincerely hope to see this happen, and to be able to tell friends and clients that Phanfare is where they should share their photos.

  • Hello,
    Super post, Need to mark it on Digg

  • We are going to change the TOS in the next release. Language will read as follows for the critical paragraph.

    “You retain the copyright to all content you post to the Site. When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company a perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for the purpose of displaying your photos, videos, and meta-data to your viewers on your behalf. Any such use by Phanfare will be governed by our privacy policy. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.”

    Expect the update within about a month.

  • Pingback: Phanfare Blog: Andrew Erlichson » Privacy - The Principle of least surprise()

  • Andrew, I think that’s about the best approach to copyright of user content I’ve ever come across in the TOS for a photo sharing site. I hope others will follow your example. Thank you!

  • This has been an interesting dialog. There’s no harm in bringing up the issue and asking for clarification and even change. I’ve been a Phanfare customer almost since their inception and I’ve never seen them do anything that comes close to taking my photos for their gain. It’s nice to see however that Andrew has taken the original post and has seen fit to make some adjustments.

    I’d like to commend both Scott and Andrew for handling this so swiftly (6 days beginning to end!) and professionally. I’ve seen similar discussions regarding the T&Cs on other sites escallate into name calling and threats. None of that here. Just good constructive dialogue.