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12/06/2002 06:31:09 AM · #51 |
Originally posted by hardwaybets:
While I am sure the founders of this website would like to have as many people participate, the sad truth is that their lawyer, if worth absolutely any weight in salt, will insist that the clause remain as drafted. It is his job to protect his clients not us. And I am quite certain that if he were your lawyer, you would want him to the the very same for you--namely, to protect your interests.
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I'm not taking issue with this from the point of view of you being a lawyer, and recognise it isn't your legal opinion. However, I don't believe it is unresonable for users of the site to raise issue with the IP and media clauses in the agreement.
There can be a 'well if you don't like it go away' answer. But I don't think that is a particularly useful one. Contracts are usually negotiated, with clauses having to be adapted to be suitable to _both_ parties. This isn't an unusual or unresonable request that the very wide IP assignment rights provided for in the current agreement get revisited. Yes, right now we only upload 640x480 images. The intention is that this same clause will cover high resolution images for printing - at least that is what I get from what Drew said earlier. And I think there I have some quite resonable concerns that I'd like to see addressed. I'm sure Drew and Langdon aren't out to exploit anyone. Thought never crossed my mind. But I would like to see this resolved.
I've already won over $500 in prize money from just one of the images I've entered here. Under other (unrelated) legal circumstances I would be able to accept the several offers I've had to show and resell this image.
I'd be very happy for D&L to use that image in publicity materials for the site, or to raise awareness or to use it for advertising. I think I'd quite like recognition that it was my work, depending on how it was used. Is that unresonable ? If they wanted to say publish a calendar of the best entries of the year, I'd be very interested in coming to another agreement on the content of that and how credit was assigned. The agreement as is implies I wave all those rights. A more fair agreement on both sides isn't an unresonable request. I'm sure something more equitable will be drafted when they get to speak to their lawyer. |
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12/06/2002 06:54:14 AM · #52 |
Hey guys,
Thanks for all the opinions -- they've all been heard, and we'll be discussing this with our lawyer when he gets back from vacation. Til then, I'm going to lock this thread, since there's little point arguing it any further. We hear your concerns :)
Drew |
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12/06/2002 06:56:30 AM · #53 |
Originally posted by paganini:
Section 5 is a non issue for me. They need the clause because your photo will be resized when they display it as thumbnails (hence it's modified for world wide audience). They require the need for non-exclusive agreement for display because without the right to publish, they cannot LEGALLY publish it! They can get sued later by some malicious user.
If you're worried about Drew and Langdon taking your photo and publishing it and getting money from it without your consent, i don't think you need to worry about it, the resolution at 640x480 with 150 kbytes is too low for any print publication anyway. Frankly, if you have a truly amazing image, you wouldn't want to submit it to here or any other website. Why? Because you cannot then sell it to a publisher for "first time rights".
The rights they get from the media is non-exclusive, which means you can sell it to anyone else as non-exclusive but you probably can't sell it as "exclusive" because you're already publishing it on DPc. if you choose to enter a photograph, you lose the rights for first-time use and exclusive use for publishing purposes. |
Well said, paganini. D&L need to protect themselves from potentially harmful acts by users anywhere in the world. The user, on the other hand, always has the choice to submit or not to submit. And if you have a million dollar image you would be stupid to show it on an amateur website or anywhere on the web for that matter until you have fully secured your rights. Perhaps D&L need an addendum agreement when they start printing for members to cover special arrangements there. |
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12/10/2002 11:49:52 AM · #54 |
Words from our lawyer:
I believe the section that several users have commented on as "section 5", is really Section 1 under Member Information and is as follows-
Originally posted by (Terms):
Solely to enable DPChallenge.com to use the Member Information and Media that you supply to DPChallenge.com, you hereby grant DPChallenge.com a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any rights you have in the Member Information and Media, and otherwise to make use of the Member Information and Media (including publishing, disseminating, broadcasting, manipulating, reproducing, editing, translating, performing, modifying, or displaying any part of the Member Information and/or Media alone or as part of other work in any form, media, or technology whether now new known or hereafter developed. You hereby specifically authorize DPChallenge.com, Challenging Technologies, LLC and its officers, directors, members, stockholders, volunteer assistants, independent contractors, employees, agents, and affiliates (collectively, "Affiliates") to use such Member Information as a part of the aggregated transaction information that DPChallenge.com publishes, uses and transfers, at its sole discretion on the Website and in any other medium. |
Obviously, I represent Challenging Technologies, LLC (hereinafter "CT") and so this entire user agreement was created to protect that entity. However, we spent a lot of time reviewing the issues to make sure that the document was as open as possible to the concerns of users. In fact, if you have read these types of user agreements before, this one is very even handed compared to those you would find on any Microsoft or AOL site. The purpose of this particular paragraph is to allow CT to have the flexibility it needs to continue to market and publish DPChallenge.com without being hindered by copyrights an artist has in its media (digital photos for instance). It is critical to notice the introduction to the paragraph. Basically, the sole purpose of granting these very limited rights (in some respects) to CT is so that the site is usable. Without the grant of these rights by the artist, it would be potentially an infringing act for DPChallenge.com to continue its contests or do any site related marketing. It is unfortunate reality that we live in a litigious society where everyone is trying to make a buck off of the other guy. Just look at what happened earlier in this site's history where the estate of an artist tried to foreclose the use of a deep link in the name of copyright. Without the granting of these specific licenses, CT would be opening itself up to an unacceptable liability risk of copyright infringement by the mere publishing of photos submitted to the site. For a second, pretend like these rights weren't granted. In that world, CT would be potentially be infringing on your copyrights every time it published (served) your pictures on the web for other users to vote or every time it manipulated the picture to fit in with the organizational scheme of the site (thumbnail creation, etc). Obviously this is not an acceptable proposition from CT's standpoint.
Remember too that the rights a submitting user grants to CT are very limited since it only is to that specific picture you upload and is a nonexclusive right. As a user, you should appreciate the huge benefits that you are receiving in return for the grant of these rights to CT (basically an incredible forum for digital photography). Also, you should appreciate the fact that CT is looking out for users such that it took the time (and money) to have this agreement created in a way that is clear and (contrary to some people's comments) concise. Just looking at the way other sites do things, I cannot imagine that anyone would balk at the fair way this has been all presented.
If you have questions about this paragraph or the terms of use in general, it is important that you consult your own attorney to get clarification. Obviously, I am representing CT in this matter. Remember, it is also your right not to submit photos to the site and not to agree to these terms. However, I believe that if you really think about this and look at other sites, you will realize how equitable this agreement really is.
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12/10/2002 12:54:56 PM · #55 |
Why not ADD a paragraph that specifically states that CT Ltd and its successors and assigns will on no account ever use these media for any purpose other than for the specific operation or marketing of the site without the express written consent of the copyright holder.
This paragraph allows you to maintain the para that gives you the operational rights you need, and yet protects the IP holder from any wrongdoing in the future. I talked to my lawyer and this was his suggestion. He is one of the top IP lawyers in Canada and strongly advises me against uploading any pictures here without such an agreement from the site owners.
He notes that without the Terms of Agreement all rights are maintained by the owner (ie, us). However, the addition of the TofA completely changes the nature of the relationship by granting you full rights to our work.
He also notes that just because AOL and Microsoft are scum of the earth, there is no reason for you to join them in their gooey puddle.
Finally, he wonders how DigitalPhotoContest (OnRequestImages.com), PhotoBlink, BestFoto, Better Photo, etc operate successfully without such a punitive agreement.
What shall I tell him?
Message edited by author 2002-12-10 17:55:50.
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12/10/2002 12:59:03 PM · #56 |
Seems fair enough to me..Virginia Beach---you guys got a Time Share there we can use??
;-) |
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12/10/2002 01:04:05 PM · #57 |
When he wonders how those sites get by, is he being serious, or is he being sarcastic? If he's being serious, I'd answer, "maybe it will never affect them." If he's being sarcastic, I'd answer, "maybe it will never affect them." We chose to try to make the new site as by-the-books as possible, and part of that meant making sure we weren't violating any laws or putting anyone else in the position to violate laws. Vermont, for example, requires state registration of pay-skill contests -- I imagine the district attorney may be upset if one or more of these pay skill contests were brought to his attention.
RE: marketing / express written consent... I'm more than fine with that, but let me talk to the lawyer first.
Drew |
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12/10/2002 01:19:43 PM · #58 |
Langdon --
The specific parts of this I have "problems" with are as follows:
1) The clause DOES NOT refer to "promotional use only" or anything similar, it just says in order for CT "to use" the material, in any media now known or to be invented.
2) I think the license can and should be revocable, except to the extent to which the content has already been incorporated into the site. I use similar language at work in a medical records release form.
3) Sublicensable through multiple tiers. This is the most problematic for me. I undestand that the ultimate goal is to allow the legal transfer of hi-res images to another compny for printing. However, as I read it, there is nothing preventing you from sub-licensing the work to, say, Hallmark, or from licensing it to another photo site for cross-promotional purposes, and THEY in turn pass it along to someone else.
I think if the idea is to allow you to use the images to operate and promote the site, it can be stated more clearly and explicitly. When we get to printing, I suggest a separate agreement covering those speciic activities, since it will involve uploading new files, probably a separate interface, etc., and not all members will want to participate there -- they needn't be bothered with terms which don't relate to their use of the site.
I don't have any problem with what you want or plan to do, I'm just not completely satisfied with the particular way THIS particular document (this part, anyway) tries to address the issues. I'd say with some judicious cropping, tone adjustment, and sharpening we can boost it from a 5 or 6 to a 9 or 10! |
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12/10/2002 01:29:08 PM · #59 |
Originally posted by Jak:
Finally, he wonders how DigitalPhotoContest (OnRequestImages.com), PhotoBlink, BestFoto, Better Photo, etc operate successfully without such a punitive agreement.
What shall I tell him? |
Quote from DigitalPhotoContest.com Rules "If your submission is selected as a finalist or winner, you agree to grant DigitalPhotoContest.com permissions and rights to store and display the bordered image and its thumbnails indefinitely as part of the Photo Archives, on any page at DigitalPhotoContest.com or DigitalPhotoCritique.com, and in any advertising or promotional materials both printed and on-line."
Same paragraph, just not written by a lawyer that knew what he was doing. I can't understand the fuss here... Do you honestly think granting ANYONE the rights to a 150k version of your photo will in anyway affect your ability to market the high-res version should you shoot something sellable? It would be like saying the "Mona Lisa" has no value to it's rightfull owners since you can buy a refigerator magnet version of it. |
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12/10/2002 01:34:40 PM · #60 |
Thank you for taking it to the lawyer, Drew. As my lawyer points out, if you only need the rights for a limited purpose, then you should only ask for those limited purpose rights.
I would note that I sell a lot of writing, some to major magazines and media outlets. Even by paying me real hard cash, these companies do not gain anything other than a single use (or single purpose) licence to use my IP. DPC should act in the same way, don't you think?
As for the other sites I mentioned, why would you think my lawyer was being sarcastic? When I brought the ToA to his attention a week or so ago, he went searching and found these other sites by himself, and then asked himself the question I asked you: "If they can operate successfully without a punitive ToA , why can't DPC?" It is a reasonable question that hasn't been answered yet.
For those with an interest in the matter, DigitalPhotoContest (to use an example) simply states:
"DPC was founded on the principle that photographs belong to the photographers who took them. At the bottom of every page is the statement, "All digital photo copyrights belong to the photographers. Digital photos may not be used without their permission." Your photos will only be used for the purposes of the contest and the archives of Photos of the Day. All images are bordered with the same border to give aesthetic uniformity, but also to mark them recognizably as DPC submissions.
In the future, we may offer printing programs whereby the public can order prints of your Photos of the Day. However, it would be an opt in program so no POTD may be printed except those for which the photographer has specifically given permission. In the case that a print is ordered, a copy of your higher-res, unbordered image will be sent directly to the print service provider which also takes reasonable precautions to protect the security of your files.
Seems very fair to me. And one therefore has to ask why would a site operate in any other manner?
Your Vermont example also appears to be a non sequitor. Do you think that by us assigning IP rights to you, you will avoid Vermont's registration law? I think not, which leaves you in the same position as all the other sites. If I (and my lawyer) are wrong in this, please explain how as we cannot figure it out (and we may want to visit the great State of Vermont some day!)
Drew, let me hasten to say that I love this site. I have signed the ToA and paid my money. I like it here. But as someone who lives by their IP on a daily basis (using it to pay my rent and feed my kids), the protection of IP is a matter very close to my heart.
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12/10/2002 01:34:49 PM · #61 |
as a point of reference here is how another site deals with this :
Copyright:
DPC was founded on the principle that photographs belong to the photographers who took them. At the bottom of every page is the statement, "All digital photo copyrights belong to the photographers. Digital photos may not be used without their permission." Your photos will only be used for the purposes of the contest and the archives of Photos of the Day. All images are bordered with the same border to give aesthetic uniformity, but also to mark them recognizably as DPC submissions.
In the future, we may offer printing programs whereby the public can order prints of your Photos of the Day. However, it would be an opt in program so no POTD may be printed except those for which the photographer has specifically given permission. In the case that a print is ordered, a copy of your higher-res, unbordered image will be sent directly to the print service provider which also takes reasonable precautions to protect the security of your files.
I am not suggesting that you should have the same statement, verbatum, but the point is that this implies a much lesser assignment of rights than the one drawn up for dpchallenge.
I'll try to be clear:
I don't think anyone is really complaining at all about your need for this legal protection.
I don't think anyone is really concerned about you needing rights to present, resize, or show images for the correct operation of the challenge, or for publicity/ promotional usage. Note that the current wording claims much wider rights.
What I do have a problem with is this perhaps extending to cover high resolution copies of my work, for print purposes. I don't think in that case that you should have any and all rights to reproduce those works, non-exclusive or not. It should be a distinct agreement for print copies, which may or may not require wider assignment of rights to the images.
I think the comment about well look at the great value, is just a throw away and not really anything to do with the issue at hand. We know it is a great forum for digital photography. We do want to enter our pictures here. We do want to do this with a fair assignment of usage rights to the site owners, to allow them to correctly operate the site. This does not however require complete non-exclusive rights, in my non-legal opinion.
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12/10/2002 01:35:19 PM · #62 |
Originally posted by Jak:
I talked to my lawyer and this was his suggestion. He is one of the top IP lawyers in Canada and strongly advises me against uploading any pictures here without such an agreement from the site owners. |
Good thing none of my photos has reached a 6 yet!
Originally posted by Jak:
Finally, he wonders how DigitalPhotoContest (OnRequestImages.com), PhotoBlink, BestFoto, Better Photo, etc operate successfully without such a punitive agreement. |
Here is the Privacy Statment from Digital Photo Contest.com, which seems to incorporate their TOS and Copyright issues as well. |
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12/10/2002 01:37:49 PM · #63 |
Originally posted by myqyl:
Originally posted by Jak:
Finally, he wonders how DigitalPhotoContest (OnRequestImages.com), PhotoBlink, BestFoto, Better Photo, etc operate successfully without such a punitive agreement.
What shall I tell him? |
Do you honestly think granting ANYONE the rights to a 150k version of your photo will in anyway affect your ability to market the high-res version should you shoot something sellable? It would be like saying the "Mona Lisa" has no value to it's rightfull owners since you can buy a refigerator magnet version of it. |
My specific problem was that earlier in this discussion it was said that the agreement was drafted specifically to cover high-resolution print versions as well as the 150k submissions.
Though maybe I'm just paranoid. Comes of spending about 4 years working with IP lawyers on usage rights to my IP.
Message edited by author 2002-12-10 18:39:41.
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12/10/2002 01:38:08 PM · #64 |
myqyl, it is not the same paragrpah at all. DPC specifically limits the use to the site and marketing (as I have asked Drew to amend this one to say). At present, the ToA here states we give the "right to exercise any rights you have in the Member Information and Media, and otherwise to make use of the Member Information and Media (including publishing, disseminating, broadcasting, manipulating, reproducing, editing, translating, performing, modifying, or displaying any part of the Member Information and/or Media alone or as part of other work in any form, media, or technology whether now new known or hereafter developed."
Very different.
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12/10/2002 01:48:15 PM · #65 |
Originally posted by Jak:
myqyl, it is not the same paragrpah at all. |
Sorry, I disagree... These two paragraphs are very much the same... Show it to your lawyer. This paragraph was not with the rest of thier "Terms of Use"... It was slipped into a document they call "Rules"... Your lawyer most likely didn't see it. It grants full, unretractable use... What do you think, in practical terms, thier paragraph protects you from that the one here doesn't? Ask your lawyer if he could use the other paragraph to argue the same rights in court... They are virtually the same. |
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12/10/2002 01:58:25 PM · #66 |
My lawyer begs to disagree with you myqyl.
The DPC agreement specifically states the LIMITED uses to which the images can be used. The DPChallenge rules specifically state they can use the images (and sub-license them to anyone) for any purpose in any media whatsoever.
It was my lawyer who pointed out the DPC rules to me (he is a VERY good lawyer) and suggested they be adopted here. As he makes his living dealing specifically with these issues, I'm sure you will understand that, with the greatest of respect, I will follow his advice and not yours.
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12/10/2002 02:05:56 PM · #67 |
Originally posted by Jak:
My lawyer begs to disagree with you myqyl.
The DPC agreement specifically states the LIMITED uses to which the images can be used. The DPChallenge rules specifically state they can use the images (and sub-license them to anyone) for any purpose in any media whatsoever.
It was my lawyer who pointed out the DPC rules to me (he is a VERY good lawyer) and suggested they be adopted here. As he makes his living dealing specifically with these issues, I'm sure you will understand that, with the greatest of respect, I will follow his advice and not yours. |
You already showed that paragraph to your lawyer? Are in in his/her office? This is NOT from thier terms of service... It is hidden deep in the bowels of the website. I just want to be sure we are talking apples and oranges here... |
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12/10/2002 02:18:34 PM · #68 |
The terms will be clarified shortly, so I'm going to lock this thread to avoid debating any useless points.
Jak: I can clarify what I said about the other sites in a little bit if it's still necessary, but my Vermont example specifically related to the legality of having prized skill contests. Digitalphotocontest.com is illegal in Vermont until they register there. Does that mean that it's going to affect them? Maybe not. Our lawyer has warned me several times in conversations about what's 'needed' in the terms of use not to fall into the trap of "Well, they're doing it (or not doing it." Someone getting by under the radar doesn't make it any more legally sound for us to do the same.
Drew |
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