Photographer Jack Reznicki and IP attorney Ed Greenberg have been…
These days, social media is too often regarded as a sure win, when the truth is there’s a lot to take into consideration before accepting the risks of participating.
We interviewed Chris Reese (along with others in The Photographer’s Guide to Copyright) to learn more about what photographers should know bout social media and protecting their copyrights. Chris served as General Counsel and Executive Vice President of SightSound Technologies, a tech company that developed technologies to sell audio and video files online. Over the years, he’s watched how technology has both expanded the way artists can distribute their work and made monetizing it (and maintaining value) incredibly difficult.
Chris took the time to talk us through what a photographer needs to know before sharing images online and using social media as a marketing tool.
What should a photographer consider before posting photos online?
The thing to realize is that anything that you can see or hear on the web, you can copy. At the absolute minimum you can take out your iPhone and take a picture of the monitor. You really need to read the Terms of Service before you give a website access to your creative work. If you can imagine something being done that would make you angry after the fact, you need to understand whether you’re actually giving them the right to do that very thing.
What are the important things to look for in any Terms of Service (TOS)?
The one thing to keep in mind is that almost every single terms of service will say that it has the right to change the terms of service. And typically it’s without notifying you.
The primary thing to look for is whether or not they allow for the commercial usage of what you’re posting. Most of them don’t. Surprisingly, some do. Some say that anyone can take a picture, copy it, put it on a t-shirt and start selling it. You need to read the rules to see if you are permitting that kind of use.
What should a photographer take into consideration before using social media to market?
Anything that you put online is up for grabs and can be stolen. You have to keep that in mind. If you have the greatest song in the history of the world and you post that on YouTube for free, you might dramatically undercut your ability to commercialize it. On the other hand, it might not.
It’s very easy for us to imagine that something we’ve created will all of a sudden catch fire and everybody will want it – that’s the nature of creation. Is that likely to happen? Not often. When we decide to use the tools available to us through the Internet, being overly concerned about the potential for bad things to happen is probably just as much of a concern as overstating the potential for good things to happen.
Why is stealing so rampant online and over social media?
There’s a big difference between legal rights and technical ability. The technical ability to copy any kind of digital works these days is so much stronger than whatever legal rights you have to tell people not to copy it.
If, for example, you find somebody that just didn’t read the TOS and they think they’re allowed to take your photos and use your photos for a brochure – it’s a careless mistake. They’re not purposefully trying to steal. They think that they’re allowed to take this nice picture of a bridge and put it on the cover of a brochure.
What can you do about it?
First of all, the chances of you finding out about it are very slim. But let’s say you do. You send them a letter and if it’s a company trying to do the right thing they’ll say, ‘Oops, sorry. It was a mistake.’ They might pay a little money and not include it in their next brochure. But the more likely scenario is that you’ll never find out about it and that’s the nature of it. It’s very complicated and time consuming to enforce legal rights.
How should a photographer approach an international Terms of Service?
I’m sure that international issues complicate matters a great deal. Again, it really comes down to enforceability. Do they enforce those rights the same way in all countries? The answer is no.
So are you bound by what you’ve agreed to when you click ‘OK,’ even if you didn’t read all the tiny type?
The general answer is, yes. The reason for that is you couldn’t really have commerce online if you had to show that somebody actually read the terms of purchase.
Most people think that when they sign something there must be a way to get out of it. That’s really not true. It’s incredibly expensive to get out of it. If you tell somebody they can have your picture forever and use it for whatever they want, and then it ends up in some horror flick that horrifies you…tough.” An agreement is an agreement and the courts have generally said that agreeing to TOS is a valid and enforceable contract.
Chris Reese is the author of ASMP Social Media Terms of Service Recommendations.
The Photographer’s Guide to Copyright will help you break down copyright law, understand your rights as a photographer, and take steps to protect your work from infringement. Get tips to keep your work safe, plus read in-depth interviews from photographers and experts from ASMP.