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Stringent Texas Anti-Drone Law Overturned in Federal Court
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Delta the Latest to Overreach With Photo Rights Grab Via a Hashtag
Delta Airlines is the latest in a long line of companies who have egregious overreaching rights grabs baked into a program that uses Instagram hashtags. The company claims massive rights to any images that are tagged using #SkyMilesLife.
Corporate overreach into the rights of photographers is not uncommon and has occurred numerous times over the past decade. In 2015, the New York Times published an article that brought awareness to the situation where brands will publish this kind of user-generated content without explicit permission by hiding detailed and complicated terms behind fine print and leveraging social media hashtags to do so.
In 2019, Hilton Hotels was caught in a similar situation. The Museum of Modern Art (MoMA) likewise recently solicited photographers to share photos on Instagram under monthly themes, but claimed significantly more rights than it appeared at first glance.
This time, Delta Airlines has asked its customers to share photos of their favorite moments and tag #SkyMilesLife for a chance to be featured by the company's social media presence and "inspire" others to take trips around the world.
On the surface, this is a pleasant and harmless gesture, but Delta -- who has advertised this program on billboards in airports as seen by David Bergman via an Instagram Story -- backloaded the call to share with fine print that says Delta would gain substantial rights to those images:
By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license to publicly display, distribute, reproduce and create derivative works of the submissions (“Submissions”), in whole or in part, in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion on Delta websites, commercial products and any other Delta channels, including but not limited to #SkyMilesLife or #DeltaMedallionLife publications. Delta reserves the right to use or not use content tagged #Skymileslife and/or #DeltaMedallionLife and user will not be entitled to compensation if photo is used.
User grants to Delta (and those they authorize), the irrevocable and unrestricted right to use, re-use, publish and re-publish, and copyright his or her performance, likeness, picture, portrait, photograph, in any media format, in whole or part and/or composite representations, in conjunction with my name, including alterations, modifications, derivations and composites thereof, throughout the world and universe for advertising, promotion, trade, or any lawful purposes.
The above are just two sections from a rather detailed set of paragraphs that hand over rights to photos in a way that most photographers who don't read or don't see the fine print will not expect. At the time of publication, 107,185 photos were listed under the #SkyMilesLife hashtag.
Screenshot from Delta's #SkyMilesLife Terms and Conditions page.
In the past, PetaPixel has sought the input of NPPA General Counsel Mickey Osterreicher regarding hashtag rights overreach, who said that photographers who see this kind of language have every right to be alarmed. The terms grant unlimited permission to use the photo in any way the company chooses without any remuneration, and also place all the liability for any improper use on the photographer and shifts it away from the company.
“Unfortunately, this is the typical overreach that we see far too much use of online," Osterreicher has said. "It is a rights grab that is often not read or understood. It not only harms those who submit their work for free and then makes them liable for the possible misuse of that work but also undermines those who do value their work by licensing it.
“In a supply and demand economy, this virtually destroys the market with a glut of free images. The contract could certainly be written differently but that will only happen when people stop agreeing to these unfair and onerous terms.”
The company might argue that it is simply trying to protect itself, but the key point here is that Delta does not need to phrase the "contract" to have such overarching rights to images, but unless the company and those like it are repeatedly called out for the overreach, none of the entities have any incentive to change policy. Additionally, Delta's fine print says the photographer is not entitled to any compensation if the photo is ever used.
“Clearly if there wasn’t value to these images, why would they be asking for them and these rights?” Osterreicher has told PetaPixel.
Delta Airlines did not respond to PetaPixel 's request for comment.
“Just as people would not agree to buy a car, lease an apartment, or purchase a house without understanding the terms of those written contracts, so too should they read and understand these online agreements,” Osterreicher said. “If the car payments are too much, the lease too long, or the price of the house too high, commonsense dictates that you try to negotiate better terms or walk away. These online uploading or #hashtag ‘opportunities’ are no different.”
Image credits: Header image uses elements licensed via Depositphotos.
#culture #law #news #delta #deltaairlines #hashtags #instagramhashtags #legal #mickeyosterreicher #photographerrights #photorights #rights #rightsgrab
Ancestry.com’s New Terms Allow it to Use Your Family Photos for Anything
On August 3, Ancestry.com -- the largest for-profit genealogy company in the world -- updated its terms and conditions to include new language that gives it the right to use any family photos uploaded to its system for anything it likes, forever and without limits.
Ancestry's updates to its terms and conditions focus mainly on changes to the rights it has as a company to use photos that are uploaded by users into its system:
[B]y submitting User Provided Content through any of the Services, you grant Ancestry a perpetual, sublicensable, worldwide, non-revocable, royalty-free license to host, store, copy, publish, distribute, provide access to, create derivative works of, and otherwise use such User Provided Content to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. This includes the right for Ancestry to copy, display, and index your User Provided Content. Ancestry will own the indexes it creates.
PetaPixel spoke with Mickey Osterreicher, General Counsel for the National Press Photographers Association (NPAA) regarding the change and if he believed that such a broad set of terms was reasonable.
"It always concerns me when the rights that are being sought are overly broad. I certainly understand when lawyers write these things up that they do it for the benefit of their client or their company, but sometimes I don't think they think about the fact that what they ask for is much greater than what they actually need," Osterreicher says. "Until someone questions it or pushes back, it's there. it's one of the things that I and the NPAA stress all the time. People really need to read and understand terms of service and conditions: it's a contract."
"This change to the Ancestry Terms and Conditions is consistent with the manner in which other genealogy research platforms handle user-provided content," the company writes in a blog that PetaPixel was pointed to when the company was reached for comment. "It was never intended to enable Ancestry to do anything with our users’ content other than facilitate a vibrant family history community that brings the value of personal discoveries to all."
Ancestry says that the change was only meant to encompass the expected services of the genealogy company. It says that its goal is to connect its users by allowing them to share discoveries about their family histories with each other, and sharing photos, documents, and stories are part of that. Should a user want to make its photos private, Ancestry says it respects that.
This might be the case in spirit, but the overly broad language tells a different story.
"Even though Ancestry doesn't take your copyright, they pretty much take everything you get by owning the copyright. You can still use the photos elsewhere, but the display rights, the right to copy, pretty much everything is given to Ancestry. You can't revoke the sublicense or get paid for it," Osterreicher says.
He explains that to the extent that Ancestry would like to use the images for the purposes that the company was created for, that would be all that they would really need in an updated set of terms. But instead, the company only barely stops short of claiming the copyright but is essentially covered to do everything that owning the copyright to the image would grant. Even where the company was not specific, it has covered itself by saying that it still has rights to technologies that may not even be discovered or developed yet.
Ancestry admits that it received feedback about the update and explains that users can still revoke the rights given to Ancestry should they desire.
Notwithstanding the non-revocable and perpetual nature of this license, it terminates when your User Provided Content is deleted from our systems. Be aware that to the extent you elected to make your User Provided Content “public” and other users copied or saved it to the Services, this license continues until the content has been deleted both by you and the other users.
While it is true that deleting any photos from Ancestry's server would remove the company's rights to them, the second section says that specifically deleting something doesn't necessarily complete the process.
"Even if you took the photo down or terminated [your Ancestry subscription], if somebody else posted the photo, Ancestry continues to own it," Osterreicher says.
Another point that Osterreicher raises is that family photos taken by a hired portrait photographer or a photo studio are likely commonly uploaded. In those cases, he says that most of the time the user doesn't own the rights to that copyright -- the photographer does.
"There are two things going on here," he says. "One, a discussion about your own images and whether you want to grant those rights. Or the second, if you're posting images someone else owns rights to and if you may be violating their copyright."
Regardless of the intent of terms and conditions changes, Osterreicher says it's important for people to look at user agreements the same way they would look at the contract to buy a car. It is unlikely that someone would just buy a car without reading the fine print about the interest rates, for example. He says that in the rush for instant gratification, many people overlook important aspects of terms and conditions. In this case, Ancestry asked for much more than it needed, and the only way that it would get changed is if enough people called for it.
"The analogy that I normally make is that copyright is very much like owning a home as opposed to renting or leasing. There are many things you can do with that home when you have the deed, and that is the same with copyright. So in a way, even if you own the copyright and grant the license, it's like someone can come into your house and do whatever they want," he explains. "You can still live there, and own it, but they are free to do whatever they want, whenever they want. I don't think most people think of it that way when it comes to pictures."
Image credits: Background of header photo licensed via Depositphotos.
#law #news #copyright #imagerights #legal #mickeyosterreicher #nationalpressphotographersassociation #nppa #rightsgrab #termsandconditions
NPPA Gets Funding to Educate Police, Journalists About Right to Record
The NPPA has announced that it will instruct police, first responders, and journalists across the United States about citizens' right to record police and officials who are carrying out their public duties.
The John S. and James L. Knight Foundation will provide the bulk of the three-year initiative through its $150,000 grant which is joined by a one-year matching grant of $50,000 from the Press Freedom Defense Fund, a program of First Look Media.
“At this moment in history it is crucial that the press be allowed to perform its obligation to better inform the public,” said NPPA President Katie Schoolov. “We are incredibly grateful to the Knight Foundation and PFDF for their generosity, which will allow us to do that by continuing and expanding our training programs as the Voice of Visual Journalists.”
“The laws that protect the rights of journalists and other citizens to record public police work are clear, but they aren’t universally known,” said Paul Cheung, Knight Foundation director of journalism. “The NPPA training will help visual journalists do their jobs safely and without interference, while protecting the public’s right to know.”
The annual grant will allow the National Press Photographers Association General Counsel Mickey Osterreicher to provide education and training about the rights of photographers to both journalists and law enforcement agencies. The NPPA says that the goal of the training is to reduce police interference and arrests of journalists and improve awareness of roles each plays.
“Such generous support will ensure the continuation of NPPA’s critical work that raises awareness of First Amendment rights, so that journalists can continue to provide essential information to their communities, enabling informed choices in support of our democracy,” said NPPA general counsel Mickey H. Osterreicher.
Especially over the last few years, journalists who have been assaulted for exercising First Amendment rights have been widely publicized either because more incidents are occurring or because modern technology makes it easier to spread awareness of their happening. Incidents where photographers' rights are not respected often result in lawsuits that favor the photographers such as this case in 2019 or a more recent case in 2021, though only after significant time and legal expenditures. The financial burden of those lawsuits is significant, and the NPPA's initiative here appears tailored to combat the problem at its source: a lack of education.
As the first step of that training, NPPA has developed a survey for journalists to better understand their awareness of First Amendment rights. The organization has asked all those interested to take the survey here and asks that they also share the survey link with newsroom staff, clients, or other journalists.
#culture #news #education #firstamendment #journalists #law #lawenforcement #legal #mickeyosterreicher #nppa #photojournalism #photojournalists #police #righttorecord
MoMA Wants Your Photos for Free, Perpetually, and ‘Any Purpose’
The Metropolitan Museum of Modern Art (MoMA) is soliciting photographers to share photos on Instagram based on monthly themes. Those who participate will be featured on the MoMA's social channels, but also give the museum significant rights to use the photos "for any purpose."
In honor of National Photography Month and its new exhibition Fotoclubismo: Brazilian Modernist Photography, 1946–1964, the museum is encouraging photographers to "get creative with a new photo challenge." It is based on the Fotoclubismo idea and on the achievements of São Paulo’s Foto-Cine Clube Bandeirante (FCCB), which the musuem describes as "a group of amateur photographers whose ambitious and innovative works embodied the abundant originality of postwar Brazilian culture."
Called the MoMA Photo Club, the museum states that each month starting in May -- for an undisclosed period -- it will offer a new theme and host, kicking off with mountain climber and environmental activist Conrad Anker with the theme "Abstractions from Nature."
[
View this post on Instagram
A post shared by MoMA The Museum of Modern Art (@themuseumofmodernart)
The museum is calling on anyone to share their "abstractions from nature" by taking "a closer look at the world around you" and capture it from a new perspective. In return for submissions, the MoMA says that it will use those photos on its social channels, the MoMA website, and on digital screens in New York City subways.
We can’t wait to see what you make. Share your photos with us using #MoMAPhotoClub. Select photos will be featured on our social channels, the MoMA website, and on digital screens in select New York City subways.
But the fine print on MoMA's website explains that those who use the hashtag would be giving up significantly more of their image rights. This would not immediately be noticed by those who only saw MoMA's Instagram post above or did not read the lightly-colored fine print on the announcement page which is not easily navigable to from Instagram.
By tagging photos using #MoMAPhotoClub, you grant The Museum of Modern Art (“MoMA”) (and those authorized by MoMA) a royalty-free, worldwide, perpetual, sublicensable, non-exclusive license to publicly display, distribute, reproduce, and create derivative works of such photos, in whole or in part (including, but not limited to, any associated captions and handles), in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion, and inclusion on MoMA’s website and social media channels.
Not only can photos be used in the way that MoMA describes on Instagram posts advertising the event, but the museum states that using the hashtag gives them implicit right to use that photo in perpetuity, sublicense it, and use it "for any purpose" including commercially which includes advertising and promotion.
[
View this post on Instagram
A post shared by MoMA The Museum of Modern Art (@themuseumofmodernart)
"It's certainly an overreach and a rights grab," Mickey H. Osterreicher, the General Counsel for the National Press Photographer's Association tells PetaPixel. "It's unfortunate that once again that far too many people devalue photography. What is wonderful, obviously, is that certainly because everyone has a cell phone and therefore everyone has a camera, everyone can take pictures, but that doesn't make everyone a photographer -- but that also doesn't mean that their images don't have value."
From MoMAs's Photo Club blog post.
Osterreicher says that it is particularly disheartening to see that this claim of rights was made by a museum, an organization that is supposed to recognize creative work and artists.
"You've got a museum that's supposed to value creative work, whether it's by an artist with a paintbrush or a sculter with chisel, or a photographer with a pro camera or even just an iPhone," he says. "We all recognize some incredible images that are made hundreds if not thousands of times a day by people using their iPhones and it's very creative work and it certainly has value. To make it seem very open and friendly while in the meantime the fine print says that you're granting all these rights not only for them to use them, but to use them into perpetuity to be able to sublicense them and to be able to use them for advertising and promotion is very disappointing."
Osterreicher says that he doesn't think it's likely that the MoMA would ask painters to send in their paintings, so why it believes that asking the same of photographers is fine hurts the medium greatly. He references the case where Andy Warhol took and used a photographer's photo as the basis for his work, and how Warhol seemed to believe that he was doing the photographer a favor by using her work beyond the scope of the license. Osterreicher describes it as a kind of artistic "elitism" that MoMA's alleged overreach here is another symptom of.
"Clearly if there wasn't value to these images, why would they be asking for them and these rights?" he poses.
The MoMA did not immediately reply to a request for comment.
Osterreicher encourages all photographers, regardless of camera or medium, to always review the fine print from any organization where photos are solicited to assure that the value of photography is upheld.
Image credits: Background of header photo licensed via Depositphotos.
#law #news #imagerights #instagram #legal #mickeyosterreicher #moma #momaphotoclub #museumofmodernart #nppa
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