The TwitPic Terms of Service Debacle

TwitPic recently kicked off a firestorm when it changed its terms of service to, seemingly, prevent its users from reselling or redistributing images uploaded to the service.

The change, which was first noticed on May 10th, though had been modified on May 4th, exploded across Twitter and the blogging world resulting in hundreds of tweets and prompting at least some TwitPic users to cancel their accounts and delete their photos.

Specifically, Twitpic’s revision said that users:

may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

This controversy caused the company to very quickly change its TOS to “clarify” the rights that its users have over their content. The terms were changed to read as follows:

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.

However, to make matters more complicated, TwitPic, the day after the second TOS change, announced a new deal with WENN, a company that sells various types of media to news outlets.

According to WENN, the deal is very limited. WENN’s CEO Lloyd Benny said that, “WENN is only permitted to distribute images posted by a very small number of celebrities, so 99.99999999% of TwitPic users remain totally unaffected by the arrangement.”

Still, this hasn’t done much, if anything, to calm user’s fears about TwitPic and the rights its claiming in its uploader’s works. Though the company says it’s taking these steps out of the interest of their users, many are seeing it as a rights grab and nothing more, especially considering the original TOS simply said, “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on or affiliated sites. All images uploaded are copyright © their respective owners.”

However, I think that most viewers are missing the bigger picture on this issue and, while what TwitPic did is certainly worthy of attention, it’s far from the only service to make a rights grab for your work.

In fact, there are many that are far worse.

The TOS Problem

Under copyright law, as the creator of original content you retain all of the rights in your works once they are fixed into a tangible medium of expression. However, if you want to share those works, such as images, on the Web by putting them on third party services you must first grant them a limited license to use the work in various capacities.

But while this license is a legal necessity, some companies abuse this necessity and the fact that very few read the terms of service to grab far more rights than they actually need. In fact, in many corners of the Web, this is par for the course.

Looking at TwitPic as an example, their current TOS allows them to use the work in almost any capacity related to their service and to sublicense or transfer that license to other parties, who in turn can use the work in any capacity related to their business.

Though you can terminate this agreement by deleting your images, TwitPic also reserves the right to continue using them for a “commercially reasonable” time after ward and that any sublicenses TwitPic grants may be irrevocable.

In short, under the current, “fixed” terms, TwitPic can still do pretty much whatever they want with your image, including selling licenses to WENN. The only thing that really changes is that you are free to license the images yourself, basically competing with TwitPic and their partners over your own work.

However, TwitPic is just a convenient example of the problem. As TheNextWeb showed, nearly every other photo sharing company out there has almost identical language bu