They’re all at it. With the launch of Color, a new smart-phone photo-sharing application last week, CNN raised some concerns about the voyeuristic nature of the app. But US photographer and photo editor Thomas E. Witte spotted something of greater concern to professional photographers. For buried deep in Color’s Terms of Service is a copyright grab in which the company generously award themselves effective ownership of any images taken using the app:

“You automatically grant (and you represent and warrant that you have the right to grant) to Color Labs: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) store, use, reproduce, distribute, modify, adapt, and publicly display your Content within the Site and in the Color Environment, as individual images or as part of a compilation; and (ii) use and reproduce any of your Content in any or all media throughout the world for the purpose of transmitting or publicizing the App or Color Labs, Inc. or Color™; (b) the perpetual and irrevocable right, but not the obligation, to delete any or all of your Content from the Color Labs servers and from the Site, whether intentionally or unintentionally, and for any reason or no reason, without notice or any liability of any kind to you or any other party; and (c) a royalty- free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your Images and comments as Color Labs may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the App or the Site.”

Some might claim it’s unlikely that pro photographers would be threatened by the grab, but they’d be wrong: photojournalists especially are increasingly using smart-phones to capture images and social media to distribute those images. The most notorious example of what can go wrong is the Agence France Presse heist of Daniel Morel’s award winning images of last year’s Haiti earthquake. Color’s terms essentially cut out middlemen like AFP in such rights grabbing: if Morel had used Color for his Haiti work the software company could have claimed ownership.

Of course this isn’t the first time a start-up company with a new piece of software has thought it has the world by the tail and can grab whatever it pleases. One long-forgotten Mac design programme attempted a similar Terms & Conditions copyright grab in the mid 90s. And IPIX, an early commercialiser of navigable bubble VR pictures, also tried it on, claiming that any image made with its software was IPIX copyright: IPIX went bankrupt in 2006. So even though Color have $41m of investor’s capital to play with they might want to reflect that grabbing their user’s intellectual property isn’t necessarily the best approach, or any guarantee of commercial success.

Peter Pham, co-founder of Color, was dismissive of CNN’s privacy concerns: “If you don’t feel comfortable having that public, then don’t use our application,” he said. Presumably he has a similar message for photographers: if you don’t feel comfortable with us ripping off your images, then don’t use our application.

And that’s a pretty odd way to promote your new photo-sharing app.

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11 Responses to “Copyright Grab? There’s An App For That”

  1. ZP ZP says:

    This has come up any number of times before (see, e.g., Facebook: http://news.cnet.com/8301-13577_3-10165190-36.html). The error in this post is to fail to differentiate between a non-exclusive license to a photo for the purposes of making the service legally work, and the assignment of the copyright to the service wholesale.

    In order for a connected, social service like Facebook or Color to display your photos to other people (which, for Color, is the *entire* purpose of the app), you necessarily must grant them a license to do so, because you own the initial copyright. Otherwise, they would be using your photos without your consent.

    As an initial matter, if you actually go read the complete ToS (http://color.com/terms), you’ll note that the title of the section preceding the license section is explicitly titled “YOU OWN THE CONTENT YOU CREATE” (emphasis original). I don’t think it gets much clearer that the user retains the copyright in their photos.

    Further, if you carefully read the part of the ToS that you excerpt in your post, you’ll note that it only refers to a right/license that you give to Color to store and display the photos taken with the app **in connection with the provision or promotion of the service.** What’s more, it is a non-exclusive license, and so your use of the photos for your own purposes separate from the service is uninhibited. The portion you quote says nothing about a transfer of copyright ownership from the user to Color, so this is hardly a “grab” of a photographer’s copyright through some backdoor means.

    Color is an app for smartphones designed specifically to let you share images with other people that are in close proximity to you. In order for Color to do so, you must grant it a license, which you do in accepting the ToS by downloading the app. If photojournalists or others are concerned about the scope of this license, they should probably not use a geo-social smartphone photo app to take and /or share their pictures.

  2. Tony Sleep Tony Sleep says:

    And let us not forget Hotmail’s T&C sneakiness of a few years back when they extravagantly awarded themselves the right to freely exploit all intellectual property sent via their email system. The ensuing shitstorm circled the globe in less than 24hrs and MS were forced to back down, apologise and amend their terms. I can’t recall now whether that was before or after Yahoo! tried to pull a similar flanker, with identical self-inflicted damage.

    Whoever dreams up these wheezes? Why don’t they stick to something up-front and honest, like burglary?

  3. Neill Watson Neill Watson says:

    Ah, yes, I remember IPIX. They claimed ownership of pretty much everything, even including the mathemetics used to generate the VR scenes! They went out of business more because everyone hated their attitude to copyright rather than their product. Perhaps there’s a lesson there….

  4. Sal Shuel Sal Shuel says:

    I’ve spent the last couple of weeks talking to students about copyright and about what they can do and can’t do photographically. One of the things I tell them is to read every word of the terms and conditions which apply to any social networking site they may be intending to join BEFORE ticking the little box which says they have read them and agree because they may be giving away everything – that is assuming they can FIND the T&C!

  5. Paul Clarke Paul Clarke says:

    Before we all leap up in the air, a few points. This isn’t a copyright grab. It is a fairly broad claim of a licence for use (and storage, etc.), which isn’t the same thing. The copyright holder remains the copyright holder, and can license the image (as it’s non-exclusive) anywhere else they can get a price for it. Now, if you’ve already given one party (Color Labs) a broad licence for use, this may affect its value. And it would mean you couldn’t give anyone else an exclusive licence, of course. But the actual impact depends on those terms.

    And they state that usage is restricted to “within the Site and the Color Environment (WTF?)” and for publicising the app and the company. How seriously you take this is up to you, I guess. Notably they’re silent on the question of whether Color Labs could, for example, sell on their usage rights to Getty in the event you inadvertently capture the moment of the PM’s assassination, and this is bad. “Non-transferable” is wording I’d look for, and anything that might govern whether your licensee can themselves make commercial gain from an image you’ve licensed to them.

    Worst case scenario: you capture the assassin’s moment of glory, Color Labs decide that your image makes a great “promotion” for their app, and decides to use it “in all media” for that purpose. Which happens to include the front page of all the newspapers. Whether or not Color Labs get any direct financial gain from this is immaterial: you certainly won’t.

    But this really misses a basic point. This app isn’t a photo app. It doesn’t provide for clever image processing, editing, storage etc. etc. It’s a sharing app. You put your stuff up there, if that’s your thing, to get whatever satisfaction you can out of seeing lots of other blah blah blah. Last time I checked you didn’t have to pay for this. And in return, would it not be really strange if the app author and host didn’t put something in the Ts & Cs to help them promote and develop their product, or even to give them a potential windfall (if only of publicity) should The Shot be captured?

    So, read the terms, and think through the worst that could happen. But basically, if you value your work, don’t stick it in apps like this. You can’t have your cake and eat it – you might want the fun of the “free sharing thingy” and then to be able to claim back a bunch of rights should it turn out you accidentally took a Pulitzer frame, but the world doesn’t work like that.

  6. Pete Jenkins Pete Jenkins says:

    The one thing I saw straight away is that they are awarding themselves a Royalty Free licence – the majority of images can’t have an RF licence because they will have none of the appropriate model releases and or property releases. This sort of get out of jail free do as we like license gobbledygook needs stamping on now and hard! The people should not be allowed to award themselves unenforceable license with immunity, after all, who do they think they are, Rock musicians? 🙂

  7. Tony Sleep Tony Sleep says:

    Quite, Pete. And a RF license that allows them to use anyone’s work to “promote” the service is a legal disaster waiting to happen. It’s hard to tell who would cop the blowback, the photographer for licensing a photo that he had no legal ability to license – eg social/domestic private photos, without the subject’s permission. Alternatively a snap of a litigious celeb possessed of valuable publicity rights and an aggressive lawyer would land in “Color’s” lap.

  8. […] Copyright Grab? There’s An App For That! […]

  9. hands off my photos! hands off my photos! says:

    I wouldnt worry about this app as its rubbish and is sinking without trace as long as you dont give it any more free publicity…!

  10. […] possible to secure the future of this unique organisation.”Blogs – Jeremy Nicholl: Copyright Grab? There’s An App For That (Photographer’s blog: March 2011)Festivals – The website for the 2011 Belfast Photo Festival […]

  11. […] That’s scary for the working photographer and it should be for any photographer. You never know what global news story you could encounter in an instant and have this company potentially grab your earnings. Is that likely? I don’t know. Is it possible? Yep! You can read a full story here on the Russian Photo Blog. […]

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