The HOV Lane Blog

Are you an aspiring photographer? Have you ever taken a photograph that you consider to be “professional” in terms of its image quality? Do you respect the rights of your friends and family in terms of how their image might be used? Have you ever taken a photograph that you would want to retain ownership of for any sort of reason?

If you answered “yes” to any of these questions, this post might be of interest to you.

Many of us enjoying our photographs with others, especially when the photographs are of a mutual memory that means a great deal to all the people involved. To do this, a growing number of people are using Web-based photo-sharing services, photo printing services and submitting images to media outlets via the Web.

There is a dirty little secret you should be aware of before uploading your images to any server other than your own. In many cases, you transfer ownership of YOUR photograph to that service/company. This transferral of copyright and/or granting of ownership rights is often buried within the Service’s Terms & Conditions, which almost no one ever actually reads before they click “yes” and agree to be contractually bound by them. Photographic rights related to these web-based services is one of the few times I’ve actually read the fine print. I’m glad I did years ago. I’m also glad I’ve recently been reminded of this potential pitfall so I could share with you.

A dear friend just sent a link to one of these services. She had uploaded photographs from a recent party a bunch of us attended. It was an incredibly fun birthday party for her Mom. We all dined on delicious food, visited with fun, friendly folk and danced to the songs of an Elvis impersonator. I digress. Let’s get back to the serious issue of uploading your photographs to a 3rd party’s service.

My friend was writing to let us know that some of the photographs from the party were now uploaded to a service which will remain nameless. This service, like many others, helps make it easier for you to share your pictures with your friends for them to then order the prints they’d like to have. One would think that, at least, in this case you’d remain sole owner of the images, but here is the exact wording from their Terms & Conditions (I removed the company’s name):

Accordingly, as a condition to your Membership, you hereby grant [the photo-sharing service] a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of and distribute your Content, solely for the purpose of providing the Service.

In this case, the transferral is limited to use “… solely for the purpose of providing the Service.” But, you do still give up your exclusive ownership of the image.

As a professional photographer, I avoid uploading my photographs to a service such as this. In the case of these pictures, my friend is probably okay with it.

Here’s my feeling on the matter. Whether an image is worthy of being sold as limited edition fine art or it turns out to be a personal snapshot that’s not worthy of any sort of sale, it is my photograph, not their’s. For any of you reading this who took the photograph, the image is your’s, not their’s. Please be careful with the rights afforded you under copyright law. Copyright law not only exists to help legally protect artists and enable them to reap the fruits of their labor and their, often times, significant financial investments made into learning and deliverying upon their crafts, it also protects anyone and everyone from having their image (pictures of their likeness) from being used without their permission.

Here is one more example. It is from a user agreement posted by a well-known media outlet that encourages visiters of their site to upload images as reader submissions. To this company’s credit, the following is openly put out in front of you when you are to click “okay”, instead of being buried in the fine print:

“All material submitted to [the media company's name] (the “Submissions”) become the property of [the media company's name] and will not be returned. Without affecting any of your ownership rights to the Submission, by submitting your Submission, you grant [the media company's name] an irrevocable royalty-free, worldwide right, in all media (now known or later developed) to use, publish, alter or otherwise exploit your Submission and to sublicense such rights to a licensee at [the media company's name] discretion. You hereby forever release [the media company's name] and any of its licensees from any and all claims you might have in connection with its use and exhibit of your Submission as set forth above. You also agree to sign (your parent or legal guardian if you are a minor in your state or Province) any necessary documentation to effectuate that license and release.”

Now, you may feel some solice in the clause, ” Without affecting any of your ownership rights to the Submission,” but everything following that phrase states to what degree you give up your ownership to the photograph — forever! This one even states that not only do you agree to waive any of your rights for compensation (indefinitely), but you also allow this media outlet to in-turn sub-license the image.

Is that really something you want to do? I’d NEVER agree to it, even if I were an amateur, enthusiast photographer. You might, or might not, decide to agree. This article’s purpose is to illuminate that this sort of choice is often part of your agreement with the service’s/site’s conditions of use. The fine print is not a fun read, but it is often a worthwhile one in the case of sharing your photographs via 3rd party sites.

Would love to hear your opinions. Please share your comments.

(Don’t worry, you may maintain ownership of any thoughts offered via a comment)