What Twitpic’s Terms of Service really say about your copyright

The Web is abuzz about indications that popular Twitter-based photo sharing service, Twitpic, recently amended its Terms of Service to give itself the right to sell your photos and videos (“your content”) or otherwise take ownership of your content. This rumour has, understandably, sparked outrage and inspired a series of posts and tweets about how users are abandoning the service. Fortunately these rumours are not entirely correct although there are some curious provisions in the Twitpic Terms of Service which are worth noting.

Twitpic has attempted to clarify its position through a blog post but the Terms of Service themselves paint a very different picture from a legal perspective.

The focus of the controversy is the following extract from the Terms of Service. I comment on parts of this extract below.

Copyright

All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.

To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter “retweet” which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.

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.

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

Does Twitpic claim ownership of your content?

In a word, no. Twitpic’s Terms of Service are pretty clear on this point and state the following:

All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.

You retain all ownership rights to Content uploaded to Twitpic.

This isn’t quite the end of the story though. While users retain ownership of their content, they grant Twitpic a fairly broad license over their content:

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.

Users also grant each other a license over their content:

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

While users can remove their photos from public view and the licenses granted to Twitpic and to other users will “terminate within a commercially reasonable time” after removing or deleting your content, the license you grant to Twitpic over your comments are specifically irrevocable and perpetual. This is probably due to a need to preserve potentially problematic comments for evidentiary reasons. Photos are similar stored and remain accessible by Twitpic should they be required for legal proceedings in due course. This use isn’t covered by the limited license you grant to Twitpic or any specific set of permissions to store and retain the content aside from a reference to your agreement to and understanding that Twitpic may “retain, but “not display, distribute, or perform, server copies of your media that have been removed or deleted”.

The Terms of Service go further to state that where your content has been sub-licensed to 3rd parties for use, reproduction or distribution prior to your license’s termination “may be perpetual and irrevocable”. What this means is that if Twitpic licenses a 3rd party the right to do any of those things to your content, they may retain the right to keep doing those things even after you have terminated the original license to Twitpic.

Does any of this mean that Twitpic has taken ownership of your content? No. What it does mean, though, is that once you have uploaded your content to Twitpic, you may not be able to exercise much meaningful control over those photos again. The Terms of Service doesn’t mention whether the license you grant to Twitpic includes the right to exploit your content commercially so your exclusive right as a copyright owner to exploit your content commercially probably remains intact.

Curious commercial implications

While your exclusive right to commercially exploit your content remains intact, the Terms of Service seem to have co-opted some of your other rights including your moral rights as a copyright owner to be recognised as the photos’ owner:

To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter “retweet” which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.

This curious clause contemplates commercial use of your content and requires anyone making commercial use of your content to take permission from Twitpic to do so and to “attribute credit to Twitpic as the source where” the content was obtained (my emphasis). This implies that Twitpic may have the intention of not only enabling some sort of commercial exploitation of your content (without having taken the right to do so in the license you grant to Twitpic) but also inserting itself as the beneficiary of that commercial use by, at a minimum, being acknowledged as the photos’ source.

The effect of this clause, together with the carve-outs for photo retention and sub-licensed content, have the effect of eroding users’ ownership in their photos in some fairly significant ways. Users retain notional ownership of their content but Twitpic takes not only an express license but extends that license implicitly by providing for these additional permissions. By agreeing to the Terms of Service you are effectively granting Twitpic a broader license than is immediately apparent from the Terms of Service themselves.

The manner in which the Terms of Service have been drafted is either indicative of poor drafting or an unfortunate attempt to seize rights from users which they do not grant in any informed capacity. The wording of the Copyright section is confusing and misleading and Twitpic users would do well to read through the Terms of Service very carefully before making further use of the service.

Update (2011-05-26):

Twitpic recently concluded an agreement with World Entertainment News Network to sell photos published to Twitpic by its users. While Twitpic insists that it will focus on photographs of celebrities, the Terms of Service don’t distinguish between celebrity and non-celebrity users and enable Twitpic to sell any images uploaded to the service. While Twitpic doesn’t take ownership of users’ content from them (as I mentioned above), it takes a broad enough set of rights to do pretty much what it wants to do with that content.

If you are a Twitpic user, you should take a careful look at Twitpic’s Terms of Service and only continue using the service if you are comfortable with those provisions. Otherwise, I recommend you look at alternatives. Twitter apps typically support a number of photo sharing services. Be sure to read the terms of service though, focus on the license provisions. I took a brief look at Mobypicture’s and Posterous‘ terms of service and they suggest those services will be more respectful of your rights as a content creator.

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